The Law of Torts - Gonzaga University

The Law ofTortsCases and MaterialsDavid K. DeWolfProfessorGonzaga University School of Lawhttp://guweb2.gonzaga.edu/~dewolfFall 2009 Classroom edition(Originally published by Lupus Publications, Ltd., Lansing, Michigan;copyright transferred to David K. DeWolf)All Rights Reserved

COPYRIGHT © 1999, 2009__________Printed in the United States of AmericaAll rights reserved

TABLE OF CONTENTSINTRODUCTION: AN OVERVIEW OF TORTLAW ..................................................................... 7§ A. THE NATURE OF TORT LAW ....................... VII§ B. THE STRUCTURE OF THIS BOOK ................ VII§ C. THE SELECTION OF CASE MATERIALS ........XProblem .......................................................... xRAILROAD CO. v. STOUT ............................ xUNITED ZINC & CHEMICAL CO. v.BRITT ............................................................ xivQuestions and Notes ...................................... xviCHAPTER 1 ESTABLISHING A BREACH OFDUTY ................................................................... 2INTRODUCTION ................................................... 2BIERMAN v. CITY OF NEW YORK............. 3Notes and Questions ...................................... 4HAMMONTREE v. JENNER ......................... 51. The Standard of Reasonable Care InGeneral ........................................................... 7LUSSAN v. GRAIN DEALERS MUTUALINSURANCE COMPANY ............................... 7a. The "Reasonable Person\ .......................... 8VAUGHN v. MENLOVE ................................. 8Questions and Notes ...................................... 9ADAMS v. BULLOCK .................................... 9Questions and Notes .................................... 10b. "Customizing" the Standard of theReasonable Person ....................................... 10ROBINSON v. LINDSAY .............................. 10Questions and Notes .................................... 12c. Efficiency .................................................. 13UNITED STATES v. CARROLL TOWING 13Questions and Notes .................................... 14Questions and Notes .................................... 15a. Juror Experience...................................... 15b. The Use of Industry Custom .................... 15BENNETT v. LONG ISLAND R. CO. .......... 15T.J. HOOPER ................................................. 17Questions and Notes .................................... 18c. Statutory Violations .................................. 18MARTIN v. HERZOG ................................... 18TEDLA v. ELLMAN ...................................... 21Questions and Notes .................................... 22d. Res Ipsa Loquitur ..................................... 24MURPHY v. MONTGOMERY ELEVATORCO.................................................................... 24Questions and Notes .................................... 25e. Evidence of Defendant's Safety Policies . 26HYJEK V. ANTHONY INDUSTRIES .......... 26STEVENS v. BOSTON ELEVATED RY. CO.......................................................................... 29Questions and Notes .................................... 303. Establishing Vicarious Liability(Respondeat Superior) ................................. 31HAYES v. FAR WEST SERVICES, INC. .... 31Questions and Notes .................................... 32§ B. STRICT LIABILITY ..................................... 331. The Distinction Between Strict Liabilityand Negligence ............................................ 34HELLING v. CAREY .................................... 34Questions and Notes .................................... 372. When Is Strict Liability Imposed? ........... 38a. Abnormally Dangerous Activities ............ 38SIEGLER v. KUHLMAN ............................. 38Questions and Notes .................................... 42b. Invasion of Property Rights Nuisance ..... 43FLETCHER v. RYLANDS .............................. 43FLETCHER v. RYLANDS ............................ 45RYLANDS v. FLETCHER ........................... 48Questions and Notes .................................... 48BOHAN v. PORT JERVIS GAS LIGHT CO.......................................................................... 49BOOMER v. ATLANTIC CEMENT CO..... 51Questions and Notes .................................... 54SPUR INDUSTRIES v. DEL E. WEBBDEVELOPMENT CO. .................................. 54Questions and Notes .................................... 56c. Animals ..................................................... 56WILLIAMS v. JOHNSON ............................ 56d. Statutory Strict Liability ........................... 58COOK v. WHITSELL-SHERMAN ............. 58Notes and Questions .................................... 62CHAPTER 2PROXIMATE CAUSE .................. 63INTRODUCTION ................................................. 63MITCHELL v. GONZALEZ ........................ 63Questions and Notes .................................... 74§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) .. 741. The Traditional Burden of Proof ............ 74HULL v. MERCK & CO. .............................. 74Questions and Notes .................................... 75REYNOLDS v. TEXAS & PACIFICRAILWAY CO. ............................................... 762. Modifying the But-For CausationRequirement ................................................. 76a. Excusable Inability to Identify theDefendant ..................................................... 76SUMMERS v. TICE ...................................... 76SINDELL v. ABBOTT LABORATORIES .. 79

ivINTRODUCTIONQuestions and Notes..................................... 90BROWN v. SUPERIOR COURT .................. 91Questions and Notes..................................... 92b. Loss of a Chance ...................................... 92BROWN v. SUPERIOR COURT .................. 92Questions and Notes..................................... 94BROWN v. SUPERIOR COURT .................. 94Questions and Notes..................................... 99c. Multiple Redundant Causes: The"Substantial Factor" Test ............................ 99PURCELL v. ASBESTOS CORPORATION,LTD .................................................................. 99§ B. LEGAL CAUSE: POLICY CONSIDERATIONSPRECLUDING LIABILITY ................................. 103BERRY v. SUGAR NOTCH ........................ 103Questions and Notes................................... 1042. Superseding Tortfeasors: Breaking theChain of Causation .................................... 104CROWE V. GASTON .................................. 104Questions and Notes................................... 109LINEY v. CHESTNUT MOTORS .............. 109Questions and Notes................................... 110ROSS v. HARTMAN .................................... 110Questions and Notes................................... 1123. Remote and Indirect Results of NegligentConduct ...................................................... 112PALSGRAF v. LONG ISLAND R. CO ....... 112Questions and Notes................................... 118KINSMAN TRANSIT CO ........................... 119Questions and Notes................................... 123INTRODUCTION ............................................... 124Jaffe, Damages for Personal Injury: TheImpact of Insurance ..................................... 124§ A. TYPES OF RECOVERABLE DAMAGES....... 1251. Property Damage .................................... 125McCURDY v. UNION PAC. R.R. ............... 1252. "Economic" Losses ................................ 125a. Lost Wages .............................................. 125O'SHEA v. RIVERWAY TOWING ............. 125Questions and Notes................................... 130b. Medical Expenses ................................... 1303. "Non-economic" Damages - Pain andSuffering ..................................................... 130MORSE v. AUBURN AND SYRACUSERAILROAD CO. .......................................... 130Questions and Notes................................... 131SPADE v. LYNN & B.R. CO........................ 132Questions and Notes................................... 133JOHNSON v. STATE OF NEW YORK ...... 134Questions and Notes................................... 136STEINHAUSER v. HERTZ CORPORATION....................................................................... 136Questions and Notes................................... 1374. Punitive Damages .................................. 138MORAN v. JOHNS-MANVILLE SALESCORPORATION ......................................... 138Questions and Notes .................................. 140GRIMSHAW v. FORD MOTOR CO. ........ 140Questions and Notes .................................. 1485. Attorneys Fees ........................................ 148Kuenzel, The Attorney's Fee: Why Not a Costof Litigation? ................................................ 148Questions and Notes .................................. 149§ B. RELATED PARTIES: WHO ELSE IS ENTITLEDTO COMPENSATION? ....................................... 1491. Wrongful Death ...................................... 149MORAGNE v. STATES MARINE LINES 149FIRST NATIONAL BANK OF MEADVILLEv. NIAGARA THERAPY MANUFAC-TURING CORPORATION ........................ 154FELDMAN v. ALLEGHENY AIRLINES . 156Questions and Notes .................................. 1602. "Wrongful Birth" and "Wrongful Life\ 160UNIVERSITY OF ARIZONA HEALTHSCIENCES CENTER v. SUPERIOR COURT....................................................................... 161HARBESON v. PARKE-DAVIS ................. 168Questions and Notes .................................. 1743. Bystander Injuries .................................. 175DILLON v. LEGG ....................................... 175Questions and Notes .................................. 178HEGEL v. McMAHON ............................... 1794. Loss of Consortium ................................ 185RODRIGUEZ v. BETHLEHEM STEELCORPORATION ......................................... 185Questions and Notes .................................. 190BORER v. AMERICAN AIRLINES .......... 190Questions and Notes .................................. 192§ C. THE SIZE OF DAMAGE AWARDS .............. 1921. How Much is Too Much (or Too Little)?192FORTMAN v. HEMCO, INC ..................... 192Questions and Notes .................................. 195FEIN v. PERMANENTE MEDICAL GROUP....................................................................... 196Questions and Notes .................................. 2002. Collateral Source Benefits ..................... 201SCHONBERGER v. ROBERTS ................ 201Questions and Notes .................................. 2033. The Scope of Acceptable Argument ....... 204BOTTA v. BRUNNER ................................. 204Questions and Notes .................................. 205STECKER v. FIRST COMMERCIALTRUST CO. .................................................. 206PART II DEFENSES TO A PERSONAL INJURYCASE ................................................................ 209Introductory Note ....................................... 210CHAPTER 4 IMMUNITY ............................... 210

INTRODUCTION§ A. GOVERNMENTAL IMMUNITY ................... 210Federal Tort Claims Act ............................... 210Questions and Notes .................................. 211LAIRD v. NELMS ........................................ 211Questions and Notes .................................. 215VANDERPOOL v. STATE ........................... 216Questions and Notes .................................. 220§ B. FAMILY IMMUNITIES ................................ 220HOLODOOK v. SPENCER ........................ 220Questions and Notes .................................. 223§ C. WORKER'S COMPENSATION .................... 224WOLF v. SCOTT WETZEL SERVICES,INC. ............................................................... 224Questions and Notes .................................. 226CHAPTER 5 CONTRIBUTORY FAULT ........ 228§ A. THE CONTRIBUTORY NEGLIGENCE RULE......................................................................... 228LI v. YELLOW CAB COMPANY OFCALIFORNIA .............................................. 228Questions and Notes .................................. 234§ B. ASSUMPTION OF RISK .............................. 235SMITH v. BAKER & SONS ........................ 235Questions and Notes .................................. 237BROWN v. SAN FRANCISCO BALL CLUB....................................................................... 237Questions and Notes .................................. 238ALSTON v. BLYTHE .................................. 238KIRK v. WASHINGTON STATEUNIVERSITY ............................................... 242Questions and Notes .................................. 246§ A. OVERVIEW AND STATUTORY EXCERPTS . 247Idaho Code (1990 Supplement) ................... 247Oregon Revised Statutes .............................. 248Uniform Comparative Fault Act ................. 251Questions and Notes .................................. 253§ B. JOINT AND SEVERAL LIABILITY .............. 253LAUBACH v. MORGAN............................. 253Questions and Notes .................................. 256BOYLES v. OKLAHOMA NATURAL GASCO.................................................................. 257AMERICAN MOTORCYCLE ASS'N v.SUPERIOR COURT .................................... 260Questions and Notes .................................. 268§ C. THE EFFECT OF SETTLEMENT ................ 269WASHBURN v. BEATT EQUIPMENTCOMPANY ................................................... 269INTRODUCTION ............................................... 275§ A. APPLYING THE CORRECT LIMITATIONPERIOD ............................................................ 275DICKENS v. PURYEAR .............................. 275§ B. ACCRUAL OF THE CAUSE OF ACTION ...... 283ESTATES OF HIBBARD v. GORDON, et al........................................................................ 283PFEIFER v. CITY OF BELLINGHAM ..... 288§ C. TOLLING OF THE LIMITATION PERIOD ... 294STRAHLER v. ST. LUKE'S HOSPITAL .. 294PART III MODIFICATION OF DUTYBYSTATUS AND RELATIONSHIPS ................... 300INTRODUCTION ............................................... 300Questions and Notes .................................. 301§ A. THE STATUS DISTINCTIONS ..................... 3021. Are the Status Distinctions Desirable? .. 302YOUNCE v. FERGUSON ........................... 302ROWLAND v. CHRISTIAN....................... 306Questions and Notes .................................. 3092. How is the Visitor's Status Determined? 309MARKLE v. HACIENDA MEXICANRESTAURANT ............................................ 309Questions and Notes .................................. 314HOSTICK v. HALL .................................... 315GUILFORD v. YALE UNIVERSITY ........ 315Questions and Notes .................................. 3163. An Exception for Trespassing Children 317OSTERMAN v. PETERS ............................ 317HOFER v. MEYER ..................................... 319Questions and Notes .................................. 322§ B. WHEN DOES PREMISES LIABILITY GOVERNTHE CASE? ...................................................... 323POTTS v. AMIS ........................................... 323Questions and Notes .................................. 325§ A. HISTORY: THE RISE AND FALL OF PRIVITY......................................................................... 326WINTERBOTTOM v. WRIGHT ............... 326Questions and Notes .................................. 327MACPHERSON v. BUICK MOTOR CO. 327HENNINGSEN v. BLOOMFIELD MOTORS,INC. .............................................................. 329Questions and Notes .................................. 333§ B. THE ADOPTION OF STRICT LIABILITY INTORT ............................................................... 334ESCOLA v. COCA COLA BOTTLINGCOMPANY OF FRESNO ........................... 334Questions and Notes .................................. 335GREENMAN v. YUBA POWER PRODUCTS....................................................................... 335Questions and Notes .................................. 337PHILLIPS v. KIMWOOD MACHINE CO........................................................................ 337Questions and Notes .................................. 344BROWN v. SUPERIOR COURT ............... 345§ C. THE RESTATEMENT (3D) OF TORTS(PRODUCT LIABILITY) .................................... 350Questions and Notes .................................. 354§ A. MEDICAL MALPRACTICE ........................ 3551. Negligence .............................................. 355KNIGHT v. HAYDARY .............................. 355Questions and Notes .................................. 359v

viINTRODUCTION2. Informed Consent .................................. 359WACHTER v. UNITED STATES ............... 359Questions and Notes................................... 367§ B. OTHER FORMS OF PROFESSIONALMALPRACTICE ................................................ 368BUCH v. AMORY MANUFACTURING CO........................................................................ 369Questions and Notes................................... 370TARASOFF v. REGENTS OF UNIVERSITYOF CALIFORNIA........................................ 370Questions and Notes................................... 376BROWN v. UNITED STATES .................... 377Questions and Notes................................... 381PART IV INTENTIONAL TORTS .................. 387CHAPTER 12 INTENTIONAL TORTS: THEPRIMA FACIE CASE ...................................... 388INTRODUCTION ............................................... 388Restatement (2d) of Torts ............................ 388§ A. BATTERY AND ASSAULT ........................... 390§ B. FALSE IMPRISONMENT ............................. 395MOORE v. PAY'N SAVE CORPORATION....................................................................... 395Questions and Notes................................... 398§ C. INTENTIONAL INFLICTION OF EMOTIONALDISTRESS (OUTRAGE) ..................................... 398CORRIGAL v. BALL AND DODDFUNERAL HOME, INC .............................. 398§ A. CONSENT .................................................. 400STRAWN v. INGRAM ................................. 400MILLER v. BENNETT ................................ 401Questions and Notes................................... 402§ B. DEFENSE OF SELF .................................... 403COTE v. JOWERS ....................................... 403§ C. DEFENSE OF OTHERS ............................... 409YOUNG v. WARREN ................................... 409§ D. DEFENSE OF PROPERTY ........................... 411C.I.T. CORPORATION v. BREWER ......... 411KATKO v. BRINEY ..................................... 413Questions and Notes ..................................... 416§ E. STATUTORY PRIVILEGE ........................... 416APPENDIX A. THE PROCEDURAL HISTORYOF A SIMPLE CASE ........................................ A.1APPENDIX B. INSURANCE ......................... A.16APPENDIX C. FORMS OF ACTION ............ A.19

Introduction:An Overview of Tort Law§ A. The Nature of Tort LawTort law is basically about collisions. Oftenthe collision is literal, as where two cars collide inan intersection, 1 or a defective Coke bottleexplodes in the hand of a waitress, 2 but evenwhere the collision is less literal it is no less real.For example, in defamation (libel and slander)cases, 3 plaintiffs sue to recover for injury to theirreputations. Tort law must resolve the conflictbetween competing claims of the individual'sinterest in his reputation and the public's interest infree expression. Just as cars on the highwayusually pass one another without incident, sonewspapers and individuals can - usually - carryon their respective activities in harmony.Occasionally, however, collisions occur andsomeone is hurt. When that happens we turn totort law to decide who must pay for the injury: isthe injured party entitled to have the party thatcaused his injury compensate him, or should theloss "lie where it falls" 4 ?What makes tort law so interesting (and at thesame time so difficult) is that there are no absoluteformulas by which such questions are resolved.The rules of tort law are rough approximations ofthe balance our society wants to strike betweencompeting values, and the "correct" decisionfrequently depends upon the facts of the particularcase. For example, we make automobile driversliable for the injuries they cause, but only whenthey are "at fault," or negligent. Manufacturers, bycontrast, are liable for the injuries caused by adefective product, even if they have exercised allreasonable care. Newspapers, to take another12Li v. Yellow Cab, infra Chapter Five.Escola v. Coca Cola Bottling Co., infra ChapterEight.34This subject is covered in Chapter Twelve."The general principle of our law is that loss fromaccident must lie where it falls, and this principle is notaffected by the fact that a human being is the instrument ofmisfortune." OLIVER WENDELL HOLMES, THE COMMONLAW 88 (1881).example, are not liable for injuries to thereputation of "public figures," even the newspaperacts negligently, so long as it does not exhibit"reckless disregard" for the probable falsity ofwhat they are publishing.The primary problem in striking the properbalance lies in determining the standard forimposing liability. Should the defendant be liableirrespective of negligence (strict liability); liable ifnegligent; or liable only his behavior is even moreculpable than mere negligence (e.g., intentionaltorts)? In addition to the thorny questions aboutwhen to impose liability, tort law must alsoaddress issues of how to determine whether aplaintiff's harm was caused by a defendant'sconduct, how to calculate the proper amount ofdamages, the availability of special immunities ordefenses to liability, etc.§ B. The Structure of this BookThis book is divided into six parts, each ofwhich covers a distinct set of issues that are raisedin the administration of tort law.■ Part I, Personal Injury: The PrimaFacie Case, discusses what is usually thoughtof as the plaintiff's "prima facie" case in atypical tort suit: what must the plaintiff provein order to recover? Just a moment ago I saidthat the question of whether to shift theburden to the defendant depends uponwhether the injured party was "[1] entitled tohave the party that [2] caused his injury[3] compensate him." These three elementsmake up the building blocks of what aplaintiff must prove in a typical tort case, andthey are discussed in Chapters One, Two andThree respectively. 55A tort case is typically described as consisting ofan analysis of four elements: duty, breach, cause, anddamages. Harbeson v. Parke-Davis, infra Chapter Three.This text follows this general approach with one majorexception: Duty and breach are classed together asessentially a single question. Part III discusses in greaterdetail the question of how to determine what kind of dutythe defendant owes to the plaintiff. Because the "duty"question has confused generations of lawyers, not to

viii• Chapter 1, Establishing a Breachof Duty, examines what the plaintiff mustprove about the defendant's conduct toentitle him to be compensated. As notedabove, the most common standard is thatof reasonable care, or to put it in thenegative mode, whether or not thedefendant was negligent. However, incertain kinds of cases liability can beimposed on a "no-fault" or "strictliability" basis.• Chapter 2, Causation, considersa separate problem: if we have decidedthat the defendant breached a duty heowed, and thus should in fairness pay forthe injuries that his conduct causes theplaintiff, how do we know that thedefendant's breach of duty (rather thansome other force(s)) caused the injury? Inthe vast majority of cases causation isobvious, but where it is in doubt theanalysis is complex indeed.• Chapter 3, Damages, examineswhat kinds of damages can be recovered,who can recover them, and how a dollarvalue is assigned to the plaintiff's loss.■ Part II, Defenses to a Personal InjuryCase, looks at the tort case from the defendant'spoint of view. Even if the plaintiff has met eachof the three elements of the prima facie case,other policy considerations may intervene toallow the defendant to avoid liability or reducethe amount of liability.• Chapter 4, Immunity, looks atdoctrines that exempt certain classes ofdefendants from liability. It also looks at themodification or abandonment of suchdoctrines through statutory waiver andcaselaw restriction.• Chapter 5, Contributory Fault,considers the principles that allow amention law students (and rarely helps to solve a problemto boot), this text starts from the facts of a situation andasks the question "Does the defendant's conduct in thiscase constitute a breach of duty?" It might seem easier tostart with the question, "What dut(ies) did the defendantowe the plaintiff?" and then proceed to determine whetherthat duty is breached. But modern commentators seem toapprove of a formulation of negligence law in which thereis “a default duty of reasonable care with regard to causingphysical harm.” W. Jonathan Cardi & Michael D. Green ,Duty Wars, 81 S. CAL. L. REV. 671 (2008)INTRODUCTIONdefendant to escape or reduce his liabilitybecause the plaintiff was at least in partresponsible for his own injury.• Chapter 6, Multiple Tortfeasors, isconcerned with cases where the plaintiff'sinjury was caused by more than onedefendant. In such cases the court mustdecide how the responsibility for the injuryis to be allocated, and in particular whetherto make one defendant responsible for otherdefendants who may or may not be able topay their fair share. In addition, courts mustdecide how to handle cases where one partysettles for only part of the liability and theplaintiff pursues his claim against anotherdefendant.• Chapter 7, Statutes of Limitation,deals with a familiar problem: what happenswhen the plaintiff waits too long to file hisclaim? How does the court measure theamount of time that the plaintiff is given tofile a claim, and what circumstances willallow an exception to the rule?■ Part III, Modification of Duty byStatus and Relationships, returns toexamine the origin and limiting principlesthat accompany the duty to use reasonablecare. In particular, it considers the numerouscases in which the defendant's duty of careto the plaintiff is affected by a contractualrelationship that exists between them.Courts must decide the significance of thefact that in many cases the parties have theopportunity to shape the transaction - toshift the entitlements - before the risk ofinjury is created.• Chapter 8, Premises Liability,concerns a common transaction: wherethe defendant has permitted the plaintiffto use his land for some purpose. Mostcourts make the defendant's duty (andsubsequent tort liability) depend upon thenature of the relationship between them:whether it is business, social, ornonconsensual.• Chapter 9, Product Liability,considers an analogous problem: wherethe plaintiff has agreed to buy thedefendant's product, and defendant hasagreed to sell it, what duties has the selleraccepted with respect to the safety of theproduct? What obligations has the buyeraccepted?• Chapter 10, ProfessionalRAILROAD CO. V. STOUT

INTRODUCTIONNegligence, deals with yet another set ofrelated parties: the provider and theconsumer of professional services, suchas medicine, law, accounting, etc. Whilethe standard of reasonable care works as agood baseline for predicting liability,there are peculiarities in the professionalcontext that require special attention.While most of this chapter focuses on themedical context, since the injuries thereare most spectacular, tort remedies arepursued in an increasing number ofprofessional specialties.• Chapter 11, Rescuers, JustifiableReliance, and the Extension of Duty toRemote Plaintiffs, deals with one of thelaw's most difficult subjects: when toimpose upon someone a duty to usereasonable care. This chapter starts withthe premise that, ordinarily, tort liabilitycan only be predicated upon the defendanthaving acted in a way that caused theplaintiff's injury. In other words, thefailure to act ordinarily creates noliability. However, in some cases thedefendant may have assumed a duty toprotect the plaintiff from harm causedfrom some external source (e.g. acaseworker who intervenes in a childabuse situation, or an ambulance serviceresponding to an emergency call). Thereare particularly difficult questions abouthow far liability should be extended.■ Part IV, Intentional Torts, considersthose cases - relatively rare in terms of theeveryday practice of law, but fundamental to anunderstanding of the history of tort law - wherethe defendant intentionally causes injury to theplaintiff.• Chapter 12, Intentional Torts: ThePrima Facie Case, analyzes the burden ofproof for the plaintiff in much the same waythat we did in the negligence cases.However, because the requirements aredifferent, and more technical in nature,close attention is paid to the criteriaestablished in the principal authority forsuch cases, the Restatement of Torts.• Chapter 13, Defenses to IntentionalTorts, looks at affirmative defenses that canshield a defendant from liability. Just as inPart 2 (concerning defenses to negligencecases), a plaintiff may be able to prove thatthe defendant committed an act constitutingthe prima facie case for recovery, but stilllose the case because of the application of aprinciple denying recovery.■ Part V, Harm to Non-PhysicalInterests, treats those cases where the plaintiffsustains an injury to an interest other thanphysical well-being. For example, the plaintiffmay have suffered injury to reputation(defamation), or the defendant may haveinvaded the plaintiff's interest in privacy, or thedefendant caused harm to the plaintiff's businessinterests or his right to be free from wrongfullitigation.• Chapter 14, Defamation, discussesthe cases where the plaintiff's right to hisreputation is injured by the defendant'suse (or abuse) of the first amendmentright to speak one's mind.• Chapter 15, Privacy, is a topic relatedto defamation; but it involves an injury toa different interest - the right to be letalone, usually by some type of mediaexposure, but occasionally by otherintrusions.• Chapter 16, Damage to BusinessInterests, addresses situations where thedefendant caused a business or propertyloss, for example, by misappropriatingproperty, misrepresentation, interferencewith contractual relations, etc.• Chapter 17, Misuse of the LegalProcess, covers two distinct but relatedtorts: abuse of process (where thedefendant uses the legal process for someulterior purpose), and maliciousprosecution (where the defendantwrongfully causes the legal system toprosecute the plaintiff).■ Part VI, Tort Reform and the Futureof the Tort System, tries to put into perspectivethe larger theoretical questions about thefunction the tort system ought to perform in oursociety, and whether it is performing thatfunction satisfactorily.ixRAILROAD CO. V. STOUT

x§ C. The Selection of CaseMaterialsThe cases and materials selected for this bookreflect a variety of different teaching goals.Sometimes an older case is presented in order toshow the origin of a particular doctrine.Sometimes an older case is followed by a moremodern case that modifies the rule announced inthe first case. Sometimes a case from onejurisdiction is followed by a case from anotherjurisdiction that takes a different approach to thesame issue. Part of your task is to fit the casestogether yourself. When you read the cases in aparticular section, be alert to the potential forsubtle shifts in doctrine. Ask yourself whether therule(s) of law announced in the case make sense;that is, do they provide a sensible balance betweenthe conflicting social goals reflected in the case?You may often be convinced by a court'sreasoning, but at other times you will not be. Thecontinuing dialogue about relating tort law to yoursense of justice and to the needs of a complexsociety is what this course is all about. As youengage in that dialogue, the "rules" of tort lawshould emerge in clearer focus.The goal of this course is for you to learn howto analyze torts problems. While this text includesa variety of issues that arise in tort law, a singlecourse cannot hope to cover everything that willbe of use to you in practice, or even in your studyfor the bar exam. Moreover, torts is a rapidlychanging body of law. Vast areas of law will riseand disappear depending upon societal andstatutory changes. The author's goal is that throughmastery of the materials covered in this course -and the skills that are required to analyze cases -you will be able to tackle the tort law of the future.ProblemSuppose you are a lawyer practicing inSpokane, Washington. Your neighbor Jean hasasked you for some legal advice about aneighborhood association to which she belongs.The Walnut Creek Homeowner's Association("WCHA") was formed when the Walnut CreekSubdivision was built. It owns a piece of propertyupon which, according to the development plan, aswimming pool is to be built. Now that it is timeto build the swimming pool, WCHA's officers areconcerned about potential tort liability. Jean wantsto know the answers to the following questions:INTRODUCTION(1) What would be their legal liability if achild should get into the pool area when noone is there, and hurt himself?(2) What would you recommend tominimize the risk that the WCHA runs bybuilding a pool?Read the next two cases. While they may ormay not represent the law in your jurisdiction, seeif you can answer Jean's questions based on thelaw that you learn from them.RAILROAD CO. v. STOUT84 U.S. (17 Wall.) 657 (1873)ERROR to the Circuit Court for the District ofNebraska.Henry Stout, a child six years of age andliving with his parents, sued, by his next friend,the Sioux City and Pacific Railroad Company, inthe court below, to recover damages for an injurysustained upon a turntable belonging to the saidcompany. The turntable was in an open space,about eighty rods from the company's depot, in ahamlet or settlement of one hundred to onehundred and fifty persons. Near the turntable wasa travelled road passing through the depotgrounds, and another travelled road near by. Onthe railroad ground, which was not inclosed orvisibly separated from the adjoining property, wassituated the company's station-house, and about aquarter of a mile distant from this was theturntable on which the plaintiff was injured. Therewere but few houses in the neighborhood of theturntable, and the child's parents lived in anotherpart of the town, and about three-fourths of a miledistant. The child, without the knowledge of hisparents, set off with two other boys, the one nineand the other ten years of age, to go to the depot,with no definite purpose in view. When the boysarrived there, it was proposed by some of them togo to the turntable to play. The turntable was notattended or guarded by any servant of the company,was not fastened or locked, and revolvedeasily on its axis. Two of the boys began to turn it,and in attempting to get upon it, the foot of thechild (he being at the time upon the railroad track)was caught between the end of the rail on theturntable as it was revolving, and the end of theiron rail on the main track of the road, and wascrushed.One witness, then a servant of the company,RAILROAD CO. V. STOUT

INTRODUCTIONtestified that he had previously seen boys playingat the turntable, and had forbidden them fromplaying there. But the witness had no charge of thetable, and did not communicate the fact of havingseen boys playing there, to any of the officers orservants of the company having the table incharge.One of the boys, who was with the child wheninjured, had previously played upon the turntablewhen the railroad men were working on the track,in sight, and not far distant.It appeared from the testimony that the childhad not, before the day on which he was nowinjured, played at the turntable, or had, indeed,ever been there.The table was constructed on the railroadcompany's own land, and, the testimony tended toshow, in the ordinary way. It was a skeletonturntable, that is to say, it was not plankedbetween the rails, though it had one or two looseboards upon the ties. There was an iron latchfastened to it which turned on a hinge, and, whenin order, dropped into an iron socket on the track,and held the table in position while using. Thecatch of this latch was broken at the time of theaccident. The latch, which weighed eight or tenpounds, could be easily lifted out of the catch andthrown back on the table, and the table wasallowed to be moved about. This latch was notlocked, or in any way fastened down before it wasbroken, and all the testimony on that subjecttended to show that it was not usual for railroadcompanies to lock or guard turntables, but that itwas usual to have a latch with a catch, or adraw-bolt, to keep them in position when used.The record stated that "the counsel for thedefendant disclaimed resting their defence on theground that the plaintiff's parents were negligent,or that the plaintiff (considering his tender age)was negligent, but rested their defence on theground that the company was not negligent, andasserted that the injury to the plaintiff wasaccidental or brought upon himself."On the question whether there was negligenceon the part of the railway company in themanagement or condition of its turntable, thejudge charged the jury -That to maintain the action it mustappear by the evidence that the turntable,in the condition, situation, and placewhere it then was, was a dangerousmachine, one which, if unguarded orunlocked, would be likely to cause injuryto children; that if in its construction andthe manner in which it was left it was notdangerous in its nature, the defendantswere not liable for negligence; that theywere further to consider whether, situatedas it was as the defendants' property in asmall town, somewhat remote fromhabitations, there was negligence in notanticipating that injury might occur if itwas left unlocked or unguarded; that ifthey did not have reason to anticipate thatchildren would be likely to resort to it, orthat they would be likely to be injured ifthey did resort to it, then there was nonegligence.The jury found a verdict of $7500 for theplaintiff, from the judgment upon which this writof error was brought.Mr. Isaac Cook, for the plaintiff in error,insisted -1st. That the party injured was himself infault, that his own negligence produced the result,and that upon well-settled principles, a party thussituated is not entitled to recover.2d. That there was no negligence proved onthe part of the defendant in the condition ormanagement of the table.3d. That the facts being undisputed, thequestion of negligence was one of law, to bepassed upon by the court, and should not havebeen submitted to the jury.Mr. S.A. Strickland, contra.1. While it is the general rule in regard to anadult, that to entitle him to recover damages for aninjury resulting from the fault or negligence ofanother, he must himself have been free fromfault, such is not the rule in regard to an infant oftender years. The care and caution required of achild is according to his maturity and capacityonly, and this is to be determined in each case bythe circumstances of that case.2. While a railway company is not bound tothe same degree of care in regard to merestrangers who are even unlawfully upon itspremises that it owes to passengers conveyed byit, it is not exempt from responsibility to suchstrangers for injuries arising from its negligence orfrom its tortious acts.3. Though it is true, in many cases, that wherethe facts of a case are undisputed the effect ofthem is for the judgment of the court and not forthe decision of the jury, this is true in that class ofxiRAILROAD CO. V. STOUT

xiicases where the existence of such facts come inquestion, rather than where deductions orinferences are to be made from them. And whetherthe facts be disputed or undisputed, if differentminds may honestly draw different conclusionsfrom them, the case is properly left to the jury.Mr. Justice HUNT delivered the opinion ofthe court.1st. It is well settled that the conduct of aninfant of tender years is not to be judged by thesame rule which governs that of an adult. While itis the general rule in regard to an adult, that toentitle him to recover damages for an injuryresulting from the fault or negligence of another,he must himself have been free from fault, such isnot the rule in regard to an infant of tender years.The care and caution required of a child isaccording to his maturity and capacity only, andthis is to be determined in each case by thecircumstances of that case.But it is not necessary to pursue this subject.The record expressly states that "the counsel forthe defendant disclaim resting their defence on theground that the plaintiff's parents were negligent,or that the plaintiff (considering his tender age)was negligent, but rest their defence on the groundthat the company was not negligent, and claim thatthe injury to the plaintiff was accidental or broughtupon himself."This disclaimer ought to dispose of thequestion of the plaintiff's negligence, whethermade in a direct form, or indirectly under theallegation that the plaintiff was a trespasser uponthe railroad premises, and therefore cannotrecover.A reference to some of the authorities on thelast suggestion may, however, be useful.In the well-known case of Lynch v. Nurdin,the child was clearly a trespasser in climbing uponthe cart, but was allowed to recover.In Birge v. Gardner, the same judgment wasgiven and the same principle was laid down. Inmost of the actions, indeed, brought to recover forinjuries to children, the position of the child wasthat of a technical trespasser.In Daly v. Norwich and Worcester RailroadCompany, it is said the fact that the person wastrespassing at the time is no excuse, unless hethereby invited the act or his negligent conductcontributed to it.In Bird v. Holbrook, the plaintiff was injuredby the spring guns set in the defendant's grounds,INTRODUCTIONand although the plaintiff was a trespasser thedefendant was held liable.There are no doubt casesin which the contrary rule is laid down. But weconceive the rule to be this: that while a railwaycompany is not bound to the same degree of carein regard to mere strangers who are unlawfullyupon its premises that it owes to passengersconveyed by it, it is not exempt fromresponsibility to such strangers for injuries arisingfrom its negligence or from its tortious acts.2d. Was there negligence on the part of therailway company in the management or conditionof its turntable?The charge on this point was an impartial andintelligent one. Unless the defendant was entitledto an order that the plaintiff be nonsuited, or, as itis expressed in the practice of the United Statescourts, to an order directing a verdict in its favor,the submission was right. If, upon anyconstruction which the jury was authorized to putupon the evidence, or by any inferences they wereauthorized to draw from it, the conclusion ofnegligence can be justified, the defendant was notentitled to this order, and the judgment cannot bedisturbed. To express it affirmatively, if from theevidence given it might justly be inferred by thejury that the defendant, in the construction,location, management, or condition of its machinehad omitted that care and attention to prevent theoccurrence of accidents which prudent and carefulmen ordinarily bestow, the jury was at liberty tofind for the plaintiff.That the turntable was a dangerous machine,which would be likely to cause injury to childrenwho resorted to it, might fairly be inferred fromthe injury which actually occurred to the plaintiff.There was the same liability to injury to him, andno greater, that existed with reference to allchildren. When the jury learned from the evidencethat he had suffered a serious injury, by his footbeing caught between the fixed rail of theroad-bed and the turning rail of the table they werejustified in believing that there was a probabilityof the occurrence of such accidents.So, in looking at the remoteness of themachine from inhabited dwellings, when it wasproved to the jury that several boys from thehamlet were at play there on this occasion, andthat they had been at play upon the turntable onother occasions, and within the observation and tothe knowledge of the employes of the defendant,the jury were justified in believing that childrenwould probably resort to it, and that the defendantshould have anticipated that such would be thecase.RAILROAD CO. V. STOUT

INTRODUCTIONAs it was in fact, on this occasion, so it was tobe expected that the amusement of the boys wouldhave been found in turning this table while theywere on it or about it. This could certainly havebeen prevented by locking the turntable when notin use by the company. It was not shown that thiswould cause any considerable expense orinconvenience to the defendant. It could probablyhave been prevented by the repair of the brokenlatch. This was a heavy catch which, by droppinginto a socket, prevented the revolution of the table.There had been one on this table weighing someeight or ten pounds, but it had been broken off andhad not been replaced. It was proved to have beenusual with railroad companies to have upon theirturntables a latch or bolt, or some similarinstrument. The jury may well have believed thatif the defendant had incurred the trifling expenseof replacing this latch, and had taken the slighttrouble of putting it in its place, these very smallboys would not have taken the pains to lift it out,and thus the whole difficulty have been avoided.Thus reasoning, the jury would have reached theconclusion that the defendant had omitted the careand attention it ought to have given, that it wasnegligent, and that its negligence caused the injuryto the plaintiff. The evidence is not strong and thenegligence is slight, but we are not able to say thatthere is not evidence sufficient to justify theverdict. We are not called upon to weigh, tomeasure, to balance the evidence, or to ascertainhow we should have decided if acting as jurors.The charge was in all respects sound andjudicious, and there being sufficient evidence tojustify the finding, we are not authorized to disturbit.3d. It is true, in many cases, that where thefacts are undisputed the effect of them is for thejudgment of the court, and not for the decision ofthe jury. This is true in that class of cases wherethe existence of such facts come in question ratherthan where deductions or inferences are to bemade from the facts. If a deed be given inevidence, a contract proven, or its breach testifiedto, the existence of such deed, contract, or breach,there being nothing in derogation of the evidence,is no doubt to be ruled as a question of law. Insome cases, too, the necessary inference from theproof is so certain that it may be ruled as aquestion of law. If a sane man voluntarily throwshimself in contract with a passing engine, therebeing nothing to counteract the effect of thisaction, it may be ruled as a matter of law that theinjury to him resulted from his own fault, and thatno action can be sustained by him or hisrepresentatives. So if a coachdriver intentionallydrives within a few inches of a precipice, and anxiiiaccident happens, negligence may be ruled as aquestion of law. On the other hand, if he hadplaced a suitable distance between his coach andthe precipice, but by the breaking of a rein or anaxle, which could not have been anticipated, aninjury occurred, it might be ruled as a question oflaw that there was no negligence and no liability.But these are extreme cases. The range betweenthem is almost infinite in variety and extent. It isin relation to these intermediate cases that theopposite rule prevails. Upon the facts proven insuch cases, it is a matter of judgment anddiscretion, of sound inference, what is thededuction to be drawn from the undisputed facts.Certain facts we may suppose to be clearlyestablished from which one sensible, impartialman would infer that proper care had not beenused, and that negligence existed; another manequally sensible and equally impartial would inferthat proper care had been used, and that there wasno negligence. It is this class of cases and thoseakin to it that the law commits to the decision of ajury. Twelve men of the average of the community,comprising men of education and men of littleeducation, men of learning and men whoselearning consists only in what they havethemselves seen and heard, the merchant, themechanic, the farmer, the laborer; these sittogether, consult, apply their separate experienceof the affairs of life to the facts proven, and draw aunanimous conclusion. This average judgmentthus given it is the great effort of the law to obtain.It is assumed that twelve men know more of thecommon affairs of life than does one man, thatthey can draw wiser and safer conclusions fromadmitted facts thus occurring than can a singlejudge.In no class of cases can this practicalexperience be more wisely applied than in that weare considering. We find, accordingly, althoughnot uniform or harmonious, that the authoritiesjustify us in holding in the case before us, thatalthough the facts are undisputed it is for the juryand not for the judge to determine whether propercare was given, or whether they establishnegligence.In REDFIELD ON THE LAW OF RAILWAYS, it issaid: "And what is proper care will be often aquestion of law, where there is no controversyabout the facts. But ordinarily, we apprehend,where there is any testimony tending to shownegligence, it is a question for the jury.In Patterson v. Wallace, there was nocontroversy about the facts, but only a questionwhether certain facts proved establishednegligence on the one side, or rashness on theRAILROAD CO. V. STOUT

xivother. The judge at the trial withdrew the casefrom the jury, but it was held in the House ofLords to be a pure question of fact for the jury, andthe judgment was reversed.In Mangam v. Brooklyn Railroad, the facts inrelation to the conduct of the child injured, themanner in which it was guarded, and how itescaped from those having it in charge, wereundisputed. The judge at the trial ordered anonsuit, holding that these facts establishednegligence in those having the custody of thechild. The Court of Appeals of the State of NewYork held that the case should have beensubmitted to the jury, and set aside the nonsuit.UNITED ZINC & CHEMICAL CO. v.BRITT258 U.S. 268 (1921)Mr. Justice HOLMES delivered the opinion ofthe CourtThis is a suit brought by the respondentsagainst the petitioner to recover for the death oftwo children, sons of the respondents. The factsthat for the purposes of decision we shall assumeto have been proved are these. The petitionerowned a tract of about twenty acres in theoutskirts of the town of Iola, Kansas. Formerly ithad there a plant for the making of sulphuric acidand zinc spelter. In 1910 it tore the buildings downbut left a basement and cellar, in which in July,1916, water was accumulated, clear in appearancebut in fact dangerously poisoned by sulphuric acidand zinc sulphate that had come in one way oranother from the petitioner's works, as thepetitioner knew. The respondents had beentravelling and encamped at some distance fromthis place. A travelled way passed within 120 or100 feet of it. On July 27, 1916, the children, whowere eight and eleven years old, came upon thepetitioner's land, went into the water, werepoisoned and died. The petitioner saved thequestion whether it could be held liable. At thetrial the Judge instructed the jury that if the waterlooked clear but in fact was poisonous and thusthe children were allured to it the petitioner wasliable. The respondents got a verdict andjudgment, which was affirmed by the CircuitCourt of Appeals. 264 Fed. 785.Union Pacific Ry. Co. v. McDonald, 152 U.S.262, 14 S. Ct. 619, 38 L. Ed. 434, and kindredcases were relied upon as leading to the result, andINTRODUCTIONIn Detroit and W.R.R. Co. v. Van Steinberg, thecases are largely examined, and the rule laiddown, that when the facts are disputed, or whenthey are not disputed, but different minds mighthonestly draw different conclusions from them,the case must be left to the jury for theirdetermination.It has been already shown that the factsproved justified the jury in finding that thedefendant was guilty of negligence, and we are ofthe opinion that it was properly left to the jury todetermine that point.Upon the whole case, the judgment must beAFFIRMED.perhaps there is language in that and in Sioux City& Pacific Ry. Co. v. Stout, 17 Wall. 657, 21 L. Ed.745, that might seem to justify it; but the doctrineneeds very careful statement not to make an unjustand impracticable requirement. If the children hadbeen adults they would have had no case. Theywould have been trespassers and the owner of theland would have owed no duty to remove evenhidden danger; it would have been entitled toassume that they would obey the law and nottrespass. The liability for spring guns andmantraps arises from the fact that the defendanthas not rested on that assumption, but on thecontrary has expected the trespasser and preparedan injury that is no more justified than if he hadheld the gun and fired it. Chenery v. FitchburgR.R. Co., 160 Mass. 211, 213, 35 N.E. 554, 22L.R.A. 575. Infants have no greater right to goupon other people's land than adults, and the merefact that they are infants imposes no duty uponlandowners to expect them and to prepare for theirsafety. On the other hand the duty of one whoinvites another upon his land not to lead him into atrap is well settled, and while it is very plain thattemptation is not invitation, it may be held thatknowingly to establish and expose, unfenced, tochildren of an age when they follow a bait asmechanically as a fish, something that is certain toattract them, has the legal effect of an invitation tothem although not to an adult. But the principle ifaccepted must be very cautiously applied.In Railroad Co. v. Stout, 17 Wall. 657, 21 L.Ed. 745, the well-known case of a boy injured on aturntable, it appeared that children had playedthere before to the knowledge of employees of therailroad, and in view of that fact and the situationof the turntable near a road without visibleseparation, it seems to have been assumed withoutmuch discussion that the railroad owed a duty tothe boy. Perhaps this was as strong a case asRAILROAD CO. V. STOUT

INTRODUCTIONwould be likely to occur of maintaining a knowntemptation, where temptation takes the place ofinvitation. A license was implied and liability for adanger not manifest to a child was declared in thevery similar case of Cooke v. Midland GreatWestern Ry. of Ireland (1909), A.C. 229.In the case at bar it is at least doubtful whetherthe water could be seen from any place where thechildren lawfully were and there is no evidencethat it was what led them to enter the land. Butthat is necessary to start the supposed duty. Therecan be no general duty on the part of a land-ownerto keep his land safe for children, or even freefrom hidden dangers, if he has not directly or byimplication invited or licensed them to come there.The difficulties in the way of implying a licenseare adverted to in Chenery v. Fitchburg R.R. Co.,160 Mass. 211, 212, 35 N.E. 554, 22 L.R.A. 575,but need not be considered here. It does not appearthat children were in the habit of going to theplace; so that foundation also fails.Union Pacific Ry. Co. v. McDonald, 152 U.S.262, 14 S. Ct. 619, 38 L. Ed. 434, is less in point.There a boy was burned by falling into burningcoal slack close by the side of a path on which hewas running homeward from other boys who hadfrightened him. It hardly appears that he was atrespasser and the path suggests an invitation; atall events boys habitually resorted to the placewhere he was. Also the defendant was under astatutory duty to fence the place sufficiently tokeep out cattle. The decision is very far fromestablishing that the petitioner is liable forpoisoned water not bordering a road, not shown tohave been the inducement that led the children totrespass, if in any event the law would deem itsufficient to excuse their going there, and notshown to have been the indirect inducementbecause known to the children to be frequented byothers. It is suggested that the roads across theplace were invitations. A road is not an invitationto leave it elsewhere than at its end.Judgment reversed.Mr. Justice CLARKE, dissentingThe courts of our country have sharplydivided as to the principles of law applicable to"attractive nuisance" cases, of which this one istypical.At the head of one group, from 1873 until thedecision of to-day, has stood the Supreme Court ofthe United States, applying what has beendesignated as the "humane" doctrine. Quitedistinctly the courts of Massachusetts have stoodat the head of the other group, applying what hasbeen designated as a "hard doctrine" - the"Draconian doctrine." THOMPSON ONNEGLIGENCE, vol. I, §§ 1027 to 1054, inclusive,especially sections 1027, 1047 and 1048. COOLEYON TORTS (3d Ed.) p. 1269 et seq.In 1873, in Railroad Co. v. Stout, 17 Wall.657, 21 L. Ed. 745, this court, in a turntable case,in a unanimous decision, strongly approved thedoctrine that he who places upon his land, wherechildren of tender years are likely to go, aconstruction or agency, in its nature attractive, andtherefore a temptation, to such children, isculpably negligent if he does not take reasonablecare to keep them away, or to see that suchdangerous thing is so guarded that they will not beinjured by it when following the instincts andimpulses of childhood, of which all mankind hasnotice. The court also held that where the facts aresuch that different minds may honestly drawdifferent conclusions from them, the case shouldgo to the jury.Twenty years later the principle of this StoutCase was elaborately re-examined andunreservedly affirmed, again in a unanimousdecision in Union Pacific Railway Co. v.McDonald, 152 U.S. 262, 14 S. Ct. 619, 38 L. Ed.434. In each of these cases the contention that achild of tender years must be held to the sameunderstanding of the law with respect to propertyrights as an adult and that therefore, under thecircumstances of each, the child injured was atrespasser, was considered and emphaticallyrejected. The attractiveness of the unguardedconstruction or agency - the temptation of it tochildren - is an invitation to enter the premises thatpurges their technical trespass. These have beenregarded as leading cases on the subject for nowalmost fifty years and have been widely followedby state and federal courts - by the latter sorecently as Heller v. New York, N.H.& H.R. Co.(C.C.A.) 265 Fed. 192, and American Ry. ExpressCo. v. Crabtree (C.C.A.) 271 Fed. 287.The dimensions of the pool of poisoned waterwere about 20x45 feet. It was 2 ½ to 3 feet deep inpart and in part 10 or more feet deep. Aphotograph in the record gives it the appearance ofan attractive swimming pool, with brick sides andthe water coming nearly to the top of the wall. Thewater is described by the witnesses as appearing tobe clear and pure, and, on the hot summer day onwhich the children perished, attractively cool.This pool is indefinitely located within a tractof land about 1,000 feet wide by 1,200 feet long,about which there had not been any fencewhatever for many years, and there was no sign orxvUNITED ZINC & CHEMICAL CO. V. BRITT

PART IPERSONAL INJURY:THE PRIMA FACIE CASE

Chapter 1Establishing a Breach of DutyIntroductionThe word "tort" derives from a French wordmeaning "wrong" or "injustice." It is on the basisof some kind of deviation from the expectationsof the rest of society that a person can be madeliable in tort. The generic label we give to thatconcept is "breach of duty." Often the mostimportant issue in a tort case is whether or not abreach of duty occurred. It is not a mechanicalprocess; instead, it involves a complexdetermination of whether or not the defendant'sconduct justifies the imposition of tort liability,the effect of which is to transfer the cost of a lossfrom the plaintiff to the defendant. Tort law is notstatic; it is constantly evolving, with new tortsbeing created, and old ones abolished. 1As we will see, the concept of a tort is notsynonymous with moral failing; there may bemoral failing without tort liability, and there maybe civil liability without moral failing. Rather thanfocusing entirely on the defendant's conduct, it ismore useful to see the question in light of therelationship between the defendant and theplaintiff. 2 Law generally, not just tort law, canonly create rights if it simultaneously creates acorresponding duty. If I claim the right to freespeech, that can only be meaningful if it imposesupon the government (and other people) the dutynot to interfere with my exercise of that right. If Iclaim a right to medical care, then the society hasa duty to provide it to me.The effect of most legal rules is to determine1For a description of this process, see Blomquist,"New Torts": A Critical History, Taxonomy, andAppraisal, 95 DICK. L. REV. 23 (1990); Nehal A. Patel,The State's Perpetual Protection of Adultery: ExaminingKoestler V. Pollard and Wisconsin's Faded Adultery Torts,2003 WIS. L. REV. 1013.2As noted in the Introduction, certain kinds ofrelationships between plaintiff and defendant (e.g.,manufacturer-consumer or doctor-patient) create specificrules redefining what obligation is owed to prevent injury.the respective entitlements - the correlative rightsand duties - of the parties. 3 In a property case, forexample, certain rules decide where the boundarylines are to be drawn between A and B. Thedecision of the court determines where A's land(and rights) end and B's land (and rights) begin.Or the court may be called upon to decide whetherA's transfer of title to B is effective despite priormortgage of the property to C.Tort law involves the same kinds of questionsabout "who is entitled to what," but they areusually posed in the context of some kind ofinjury to the plaintiff. Thus, if A is injured by a cardriven by B, we want to know whether A isentitled to be free from injury by B (and thus Bhas a duty to avoid injuring him) - or is B entitledto drive on the highway, such that A has a duty notto interfere with that right? Our allocation ofduties corresponds to the rights we are trying toprotect. Requiring drivers to use reasonable care isdesigned to protect pedestrians and other driversfrom unnecessary harm.As mentioned in the Introduction, tort law isfrequently divided into four issues: duty, breach,causation and damages. To repeat, the question ofduty is often more difficult that it appears. For thebeginning torts student, I recommend looking atthe questions of duty and breach as a singlequestion. It is easier for the student to determinewhether a particular defendant has been negligent(breached the duty of reasonable care) or wasengaged in an ultrahazardous activity than it is toanswer the abstract question "What duty did thedefendant owe the plaintiff?"This chapter considers the two most commonbreaches of duty: (1) Negligence; and (2) Strict3An excellent treatment of the entitlement concept iscontained in Calabresi & Melamed, Property Rules,LiabilityRules, and Inalienability: One View of theCathedral, 85 Harv. L. Rev. 1089, 1090 (1972). Athoughtful critique by a leading exponent of the criticallegal studies movement is Kennedy, Cost-Benefit Analysisof Entitlement Problems: A Critique, 33 Stan. L. Rev. 387(1981).

§ A. NEGLIGENCE 3Liability.BIERMAN v. CITY OF NEW YORK302 N.Y.S.2d 696 (1969)Jean Bierman pro se.J. Lee Rankin, corporation counsel, (ThomasJ. Brabazon of counsel), for New York City.J. Bruce Byrne, New York City, forConsolidated Edison.Irving YOUNGER, JudgeJean Bierman, a lady no longer young, owns asmall house at 149 Rivington Street, New YorkCity, where, assisted by Social Security payments,she makes her home.On February 11, 1968, at about 6:30 a.m.,water poured into Mrs. Bierman's basement. Itdamaged the boiler, floor, and walls. The sourceof the flood was a ruptured water main in front ofher house.She filed a claim for property damage againstthe City, which responded with a letter stating, insubstance, that Consolidated Edison had beenworking on the main, and hence that Mrs.Bierman's grievance, if any, was againstConsolidated Edison. Mrs. Bierman thencommenced an action in the Small Claims Part ofthis Court, against both the City and ConsolidatedEdison, seeking damages in the amount of$300.00. Because of a crowded calendar in theSmall Claims Part, the case was referred to Part20, where, on May 20, 1969, it was tried.Neither the City nor Consolidated Edisonoffered any evidence. Rather, at the close of Mrs.Bierman's case, each moved to dismiss thecomplaint on the ground that there was no proofof negligence. There was none. Although it hasbeen held that without such proof a plaintiff maynot recover for harm caused by a broken watermain, George Foltis, Inc. v. City of New York, 287N.Y. 108, 38 N.E.2d 455 (1941), I find that simplecitation of authority will not suffice as a basis fordecision here.This is a Small Claims case, and in SmallClaims cases we are adjured "to do substantialjustice between the parties according to the rulesof substantive law." N.Y.S. City Civ. Ct. Act, Sec.1804. The rule of substantive law says that Mrs.Bierman may not recover because she cannotprove negligence on the part of the City or ofConsolidated Edison. Is this substantial justice?Only a very backward lawyer could think so. Whyshould a lady little able to bear the lossnevertheless bear it? Because the metropolis andthe great utility were not at fault, we are told. Yetthe concept of fault is beside the point. Whencalled upon to decide the rights of a farmer intowhose cabbages the flock wandered while theshepherd dallied, a court can preach a sermon onculpability and still appear to reason its way to ajust result. But when the task is the allocation ofburdens between a plaintiff who is little more thana bystander in his own society and governmentitself, talk of negligence leaves the highroad tojustice in darkness. Accidents happen. Injuriesoccur. People suffer. Frequently nobody is at fault.The problem is one of mechanics, not morals. Thelaw should therefore turn from fault as a rule ofdecision. Rather, judges must find a rule to decidewhose the cost and whose the compensation so asto satisfy the legislature's command in a case likethis "to do substantial justice."Modern legal scholarship provides at leastthree signposts pointing to such a rule.(1) Cost-spreading. See Calabresi, "SomeThoughts on Risk Distribution and the Law ofTorts," 70 Yale L.J. 499 (1961). The rule shouldoperate to alleviate the expense of accidents. CanMrs. Bierman recover only by proving negligencehere where no one was negligent? Then she willbear the whole expense and defendants none. CanMrs. Bierman recover without provingnegligence? Then defendants will in the firstinstance bear the whole expense and Mrs.Bierman none. That whole expense defendantswill thereupon spread among all who benefit fromthe water main: the City in taxes, ConsolidatedEdison in rates. Mrs. Bierman obviously can dono such thing. So the defendants should pay. Ifthey must, they argue, they have become insurers.Precisely. Let them charge each person somethingso that no person pays everything.(2) Injury-prevention. See Seavey,"Speculations as to Respondeat Superior," inHARVARD LEGAL ESSAYS 433 (1934); Calabresi,"The Decision for Accidents: An Approach toNonfault Allocation of Costs," 78 Harv. L. Rev.713 (1965). The rule should assign liability to theparty who will thereby be moved to take allpossible precautions against recurrence of theaccident. That party is not Mrs. Bierman. It is thedefendants.(3) Fairness. See Ira S. Bushey & Sons, Inc. v.United States, 398 F.2d 167 (2d Cir. 1968). TheBIERMAN V. CITY OF NEW YORK

4 1. ESTABLISHING A BREACH OF DUTYrule should impress an onlooker as fair. Here,defendants maintained a water main in the street.It was their business to do it. They created ahazard. The hazard gave issue to the accident. Ibelieve that fairness calls for a defendant to payfor accidents which occur because of his businessactivities. Thus the City and Consolidated Edisonshould pay Mrs. Bierman for her damages here.I recognize that Mrs. Bierman was abeneficiary of defendants' water main. So weremany others. There is nothing in Mrs. Bierman'suse of her share of the water to require that shesustain the entire loss brought about by theaccident. At most, she should sustain her share;and that is the result forecast under "costspreading,"above.I conclude that "substantial justice" in thiscase demands a rule of strict liability rather than arule of fault. Accordingly, plaintiff shall havejudgment against defendants, jointly andseverally, in the sum of $300, together withinterest from February 11, 1968.Notes and Questions1. Would Judge Younger be able to apply"substantial justice" if the case had involved$3,000,000 instead of $300? Why or why not?Should he have been?2. Judge Younger relies upon "threesignposts." What authority does he have for theiruse? What bearing should they have had upon hisopinion?3. How much do you think Mr. Rankin andMr. Byrne billed their clients? How do you thinkthe clients reacted to the outcome of this case?4. In Bierman v. Consolidated Edison Co. ofNew York, 66 Misc.2d 237, 320 N.Y.S.2d 331(N.Y.Sup.App.Term 1970), the court reversedJudge Younger in the following opinion:It being the mandate of the statuteCivil Court Act, § 1804) that the rules ofsubstantive law are applicable to theSmall Claims Court, the court belowerred in departing from the traditionalrules of negligence and in adopting arule of strict liability without fault.Stability and certainty in the lawrequires adherence to precedents bycourts of original jurisdiction, and thedecisions of the Court of Appeals mustbe followed by all lower courts (Brooksv. Horning, 27 A.D.2d 874, 875, 876,278 N.Y.S.2d 629, 632-634). If a rule ofstrict liability is to be adopted, thepronouncement should come from theLegislature or the Court of Appeals, andnot from a court of original jurisdiction.There being no proof of negligenceon the part of the defendantConsolidated Edison Company, thejudgment should be reversed as to it andthe complaint against it dismissed.With respect to the claim against thedefendant City of New York, we find,contrary to the decision below, thatthere was sufficient proof of itsnegligence to sustain a recovery againstit. The proof of a burst water mainpermitted an inference that the damagewas due to the negligence of the City(George Foltis, Inc. v. City of New York,287 N.Y. 108, 118, 38 N.E.2d 455, 461).While it is true that the court was notcompelled to draw that inference, thereappears no reason for declining to do so.Therefore, in the absence of anyevidence on the part of the City,judgment should have been renderedagainst it. While the court below foundotherwise on this issue, it is within ourprovince to review the facts (CPLR5501(d)), and, in a non-jury case, torender the judgment which the courtbelow should have granted (CPLR5522; Bruno v. Koshac, 13 A.D.2d 650,213 N.Y.S.2d 784; Society of New YorkHospitals v. Burstein, 22 A.D.2d 768,253 N.Y.S.2d 753). We conclude thatthe judgment against the City should beaffirmed, although in affirming, we arenot approving the reasons reachedbelow (Ward v. Hasbrouck, 169 N.Y.407, 420, 62 N.E. 434, 438).Judgment modified to the extent ofreversing so much thereof as is againstthe defendant Consolidated EdisonCompany, without costs, and dismissingthe complaint against it; otherwiseaffirmed, with $25 costs.Was Judge Younger correct? Or was thereviewing court correct? Now how much had theCity and Con Ed paid their lawyers? Did they gettheir money's worth?5. One commentator characterizes the tort lawof New York state as having "evolved" from aBIERMAN V. CITY OF NEW YORK

§ A. NEGLIGENCE 5focus on fairness to an emphasis on efficiency.See William E. Nelson, From Fairness toEfficiency: The Transformation of Tort Law inNew York, 1920-1980, 47 Buff. L. Rev. 117(1999).6. Compensation and tort liability aredistinguished in John G. Culhane, Tort,Compensation, and Two Kinds of Justice, 55Rutgers L. Rev. 1027 (2003) (regarding theCompensation fund for victims of Sept. 11, 2001);Mark Geistfeld, Negligence, Compensation, andthe Coherence of Tort law 91 Geo. L.J. 585(2003).HAMMONTREE v. JENNER20 Cal. App. 3d 528, 97 Cal. Rptr. 739 (1971)LILLIE, Associate JusticePlaintiff Maxine Hammontree and herhusband sued defendant for personal injuries andproperty damage arising out of an automobileaccident. The cause was tried to a jury. Plaintiffsappeal from judgment entered on a jury verdictreturned against them and in favor of thedefendant.The evidence shows that on the afternoon ofApril 25, 1967, defendant was driving his 1959Chevrolet home from work; at the same timeplaintiff Maxine Hammontree was working in abicycle shop owned and operated by her and herhusband; without warning defendant's car crashedthrough the wall of the shop, struck Maxine andcaused personal injuries and damages to the shop.Defendant claimed he became unconsciousduring an epileptic seizure losing control of hiscar. He did not recall the accident but his lastrecollection before it, was leaving a stop lightafter his last stop, and his first recollection afterthe accident was being taken out of his car inplaintiffs' shop. Defendant testified he has amedical history of epilepsy and knows of no otherreason for his loss of consciousness except anepileptic seizure; prior to 1952 he had beenexamined by several neurologists whoseconclusion was that the condition could becontrolled and who placed him on medication; in1952 he suffered a seizure while fishing; severaldays later he went to Dr. Benson Hyatt whodiagnosed his condition as petit mal seizure andkept him on the same medication; thereafter hesaw Dr. Hyatt every six months and then on ayearly basis several years prior to 1967; in 1953he had another seizure, was told he was anepileptic and continued his medication; in 1954Dr. Kershner prescribed dilantin and in 1955 Dr.Hyatt prescribed phelantin; from 1955 until theaccident occurred (1967) defendant had usedphelantin on a regular basis which controlled hiscondition; defendant has continued to takemedication as prescribed by his physician and hasdone everything his doctors told him to do toavoid a seizure; he had no inkling or warning thathe was about to have a seizure prior to theoccurrence of the accident.In 1955 or 1956 the department of motorvehicles was advised that defendant was anepileptic and placed him on probation underwhich every six months he had to report to thedoctor who was required to advise it in writing ofdefendant's condition. In 1960 his probation waschanged to a once-a-year report.Dr. Hyatt testified that during the times hesaw defendant, and according to his history,defendant "was doing normally" and that hecontinued to take phelantin; that "[t]he purpose ofthe (phelantin) would be to react on the nervoussystem in such a way that where, without themedication, I would say to raise the threshold sothat he would not be as subject to these episodeswithout the medication, so as not to have theseizures. He would not be having the seizureswith the medication as he would without themedication compared to taking medication"; in aseizure it would be impossible for a person todrive and control an automobile; he believed itwas safe for defendant to drive.Appellants' contentions that the trial courterred in refusing to grant their motion forsummary judgment on the issue of liability andtheir motion for directed verdict on the pleadingsand counsel's opening argument are answered bythe disposition of their third claim that the trialcourt committed prejudicial error in refusing togive their jury instruction on absolute liability. 11"When the evidence shows that a driver of a motorvehicle on a public street or highway loses his ability tosafely operate and control such vehicle because of someseizure or health failure, that driver is nevertheless legallyliable for all injuries and property damage which aninnocent person may suffer as a proximate result of thedefendant's inability to so control or operate his motorvehicle."This is true even if you find the defendant driver had noHAMMONTREE V. JENNER

6 1. ESTABLISHING A BREACH OF DUTYUnder the present state of the law found inappellate authorities beginning with Waters v.Pacific Coast Dairy, Inc., 55 Cal. App. 2d 789,791-793, 131 P.2d 588 (driver renderedunconscious from sharp pain in left arm andshoulder) through Ford v. Carew & English, 89Cal. App. 2d 199, 203-204, 200 P.2d 828 (faintingspells from strained heart muscles), Zabunoff v.Walker, 192 Cal. App. 2d 8, 11, 13 Cal. Rptr. 463(sudden sneeze), and Tannyhill v. Pacific MotorTrans. Co., 227 Cal. App. 2d 512, 520, 38 Cal.Rptr. 774 (heart attack), the trial judge properlyrefused the instruction. The foregoing casesgenerally hold that liability of a driver, suddenlystricken by an illness rendering him unconscious,for injury resulting from an accident occurringduring that time rests on principles of negligence.However, herein during the trial plaintiffswithdrew their claim of negligence and, after bothparties rested and before jury argument, objectedto the giving of any instructions on negligenceelecting to stand solely on the theory of absoluteliability. The objection was overruled and thecourt refused plaintiffs' requested instruction afterwhich plaintiffs waived both opening and closingjury arguments. Defendant argued the cause to thejury after which the judge read a series ofnegligence instructions and, on his own motion,BAJI 4.02 (res ipsa loquitur).Appellants seek to have this court overridethe established law of this state which isdispositive of the issue before us as outmoded intoday's social and economic structure, particularlyin the light of the now recognized principlesimposing liability upon the manufacturer, retailerand all distributive and vending elements andactivities which bring a product to the consumerto his injury, on the basis of strict liability in tortexpressed first in Justice Traynor's concurringopinion in Escola v. Coca Cola Bottling Co., 24Cal. 2d 453, 461-468, 150 P.2d 436, and then inGreenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal. Rptr. 697, 377 P.2d 897;Vandermark v. Ford Motor Co., 61 Cal. 2d 256,37 Cal. Rptr. 896, 391 P.2d 168, and Elmore v.American Motors Corp., 70 Cal. 2d 578, 75 Cal.Rptr. 652, 451 P.2d 84. These authorities hold that"A manufacturer (or retailer) is strictly liable intort when an article he places on the market,knowing that it is to be used without inspectionfor defects, proves to have a defect that causesinjury to a human being." (Greenman v. Yubawarning of any such impending seizure or health failure."Power Products, Inc., 59 Cal. 2d 57, 62, 27 Cal.Rptr. 697, 700, 377 P.2d 897, 900; Vandermark v.Ford Motor Co., 61 Cal. 2d 256, 260-261, 37 Cal.Rptr. 896, 391 P.2d 168.) Drawing a parallel withthese products liability cases, appellants argue,with some degree of logic, that only the driveraffected by a physical condition which couldsuddenly render him unconscious and who isaware of that condition can anticipate the hazardsand foresee the dangers involved in his operationof a motor vehicle, and that the liability of thosewho by reason of seizure or heart failure or someother physical condition lose the ability to safelyoperate and control a motor vehicle resulting ininjury to an innocent person should be predicatedon strict liability.We decline to superimpose the absoluteliability of products liability cases drivers underthe circumstances here. The theory on which thosecases are predicated is that manufacturers,retailers and distributors of products are engagedin the business of distributing goods to the publicand are an integral part of the over-all producingand marketing enterprise that should bear the costof injuries from defective parts. (Vandermark v.Ford Motor Co., 61 Cal. 2d 256, 262, 37 Cal.Rptr. 896, 391 P.2d 168; Greenman v. Yuba PowerProducts, Inc., 59 Cal. 2d 57, 63, 27 Cal. Rptr.697, 377 P.2d 897.) This policy hardly applieshere and it is not enough to simply say, as doappellants, that the insurance carriers should bethe ones to bear the cost of injuries to innocentvictims on a strict liability basis. In Maloney v.Rath, 69 Cal. 2d 442, 71 Cal. Rptr. 897, 445 P.2d513, followed by Clark v. Dziabas, 69 Cal. 2d449, 71 Cal. Rptr. 901, 445 P.2d 517, appellanturged that defendant's violation of a safetyprovision (defective brakes) of the Vehicle Codemakes the violator strictly liable for damagescaused by the violation. While reversing thejudgment for defendant upon another ground, theCalifornia Supreme Court refused to apply thedoctrine of strict liability to automobile drivers.The situation involved two users of the highwaybut the problems of fixing responsibility under asystem of strict liability are as complicated in theinstant case as those in Maloney v. Rath at 447, 71Cal. Rptr. 897, 445 P.2d 513, and could onlycreate uncertainty in the area of its concern. Asstated in Maloney, at page 446, 71 Cal. Rptr. atpage 899, 445 P.2d at page 515: "To invoke a ruleof strict liability on users of the streets andhighways, however, without also establishing insubstantial detail how the new rule should operatewould only contribute confusion to theautomobile accident problem. Settlement andHAMMONTREE V. JENNER

§ A. NEGLIGENCE 7claims adjustment procedures would becomechaotic until the new rules were worked out on acase-by-case basis, and the hardships of delayedcompensation would be seriously intensified.Only the Legislature, if it deems it wise to do so,can avoid such difficulties by enacting acomprehensive plan for the compensation ofautomobile accident victims in place of or inaddition to the law of negligence."The instruction tendered by appellants wasproperly refused for still another reason. Evenassuming the merit of appellants' position underthe facts of this case in which defendant knew hehad a history of epilepsy, previously had sufferedseizures and at the time of the accident wasattempting to control the condition by medication,the instruction does not except from its ambit thedriver who suddenly is stricken by an illness orphysical condition which he had no reasonwhatever to anticipate and of which he had noprior knowledge.The judgment is affirmed.WOOD, P.J., and THOMPSON, J., concur.§ A. NegligenceIntroductory Note. By far the most commonkind of tort case is one based upon negligence. Inmost (but not all) areas of social interaction, weare expected to exercise "reasonable care." If Afails to use reasonable care, and that failure resultsin B's injury, A is usually responsible for thedamages suffered by B. Because negligence is thebedrock, so to speak, of tort liability, a thoroughmastery of it is crucial to understanding tort law.1. The Standard of Reasonable Care -In GeneralLUSSAN v. GRAIN DEALERSMUTUAL INSURANCE COMPANY280 F.2d 491 (5th Cir. 1960)John R. BROWN, Circuit JudgeThis case presents the question whether anaction which a human being would normally takemay be considered by a jury to be that which thelaw's ordinary prudent person would have takenunder such circumstances.What brings this all about was a wasp - or abee - it really doesn't matter for bees and waspsare both of the order hymenoptera, and while awasp, unlike the bee, is predacious in habit, bothsting human beings, or humans fear they will. Thewasp did not intrude upon a pastoral scene ordisturb the tranquillity of nature's order. What thiswasp did - perhaps innocently while wafted byconvection or the force of unnatural currentsgenerated by the ceaseless motion of man's nearbymachines - was to find itself an unwelcomepassenger in an automobile then moving toward,of all places, Elysian Fields - not on the banks ofOceanus, but a major thoroughfare in the City ofNew Orleans on the Mississippi.With the wasp was the defendant - owner anddriver of the vehicle. Two others were with him inthe front seat as his mobile guests. The wasp flewin - or his presence was suddenly discovered. Likethousands of others confronted with the imminentfear of a sting by such air-borne agents, thedefendant driver swatted at the wasp. Whether hehit the wasp, no one knows. But momentarily thedefendant driver apparently thought this menacehad flown his coupe. The wasp, however, was notyet through. One of the passengers suddenlylooked down and hollered out "watch out, it's stillalive." Instinctively the defendant driver lookeddown at the floorboard and simultaneously made asweeping swat at the wasp or where the wasp wasthought to be. The wasp with all his capacity forharm scarcely could have thought itself sopowerful. For without ever matter even beingthere at all, this anonymous bug broughtsubstantial damage to one of the guests.Unconscious probably that it had set in motion thelaw's but-for chain reaction of causation, the waspwas the blame in fact. For when the driver byinvoluntary reflex took the swat, he lurched justenough to pull the steering wheel over to crash themoving car into a vehicle parked at the curb.The traditional twelve good men performingtheir function in the jury system by which mendrawn from all walks of life pass upon behavior oftheir fellow men, heard these uncontradicted facts.Instructed by the judge in a clear fashion on thelaw of due care in a charge to which no exceptionwas taken, the jury in nine minutes returned averdict for the driver. The plaintiff, appellant here,injured substantially by this combination ofnatural, human and mechanical forces has a singleLUSSAN V. GRAIN DEALERS MUTUAL INSURANCE COMPANY

8 1. ESTABLISHING A BREACH OF DUTYaim, and hope and necessity: convincing us thatthe trial court erred in not granting the plaintiff'smotions for instructed verdict and j.n.o.v.His surprise or even disappointment in thisadverse verdict actually returned in favor of adirect-action insurer-defendant is not sufficient togive to this incident the quality essential to adirected verdict. Variously stated, restated,repeated and reiterated, the legal standard to bemet is that no reasonable man could infer that theprudent man would have acted this way. Marsh v.Illinois Central R., 5 Cir., 1949, 175 F.2d 498;Whiteman v. Pitrie, 5 Cir., 1955, 220 F.2d 941. Inthe determination of this, little instruction comesfrom prior cases involving a Connecticut bee inRindge v. Holbrook, 111 Conn. 72, 149 A. 231, ofa diversity Eighth Circuit Iowa wasp, Heerman v.Burke, 8 Cir., 1959, 266 F.2d 935.Asserting this negative imperative - noreasonable man could hold as the jury did -inescapably puts the reviewing judge, trial orappellate, in the position of a silent witness inbehalf of mankind. In assaying the scope of thespecific record, we inevitably measure it in termsof the general experience of mankind includingour own. Charles Alan Wright, The DoubtfulOmniscience of Appellate Courts, 41 MINN. L.REV. 751 (1957). We draw on what we and whatall others constituting that composite reasonableman have come to know. The sources of thisknowledge are as variable as are the subjects ofinquiry.In this simple case in the search for thenegative limits of the inferences open to the socalledreasonable man, we deal with a situationknown and experienced by all - the involuntaryreflex responses by which nature protects lifefrom harm or apprehended harm. In aphilosophical way it may be that nature has hereelevated the instinct of self-preservation to a planeabove the duty to refrain from harming others. Itis here where man through law and orderedsociety steps in. But in stepping in, man, throughlaw, has erected as the standard of performance,not what had to be done to avoid damage, but thatwhich prudent human beings would have done ornot done.At times the judgment of the common man -voiced through the jury or other trier of fact - onwhat the prudent man should have done will be todeny to the individual concerned a legaljustification for his perfectly human instinctiveresponse. At other times what is actually usualmay be equated with that which is legally prudent.That is what occurred here. A wasp becamethe object of apprehended harm. Protectiveresponses were instinctive and natural and swift.True, this diverted driver and his attention fromother harm and other duties. But the jury in thesecircumstances under unchallenged instruction onlegal standards concluded that this was normaland prudent human conduct. What better way isthere to judge of this?Affirmed.a. The "Reasonable Person"VAUGHN v. MENLOVE3 Bing. (N.C.) 468, 132 Eng. Rep. 490 (C.P.1837)At the trial it appeared that the rick [haystack]in question had been made by the Defendant nearthe boundary of his own premises; that the haywas in such a state when put together, as to giverise to discussions on the probability of a fire: thatthough there were conflicting opinions on thesubject, yet during a period of five weeks, theDefendant was repeatedly warned of his peril; thathis stock was insured; and upon one occasion,being advised to take the rick down to avoid alldanger, he said "he would chance it." He made anaperture or chimney through the rick; but in spite,or perhaps in consequence of this precaution, therick at length burst into flames from thespontaneous heating of its materials; the flamescommunicated to the Defendant's barn andstables, and thence to the Plaintiff's cottages,which were entirely destroyed.PATTESON, J. before whom the cause wastried, told the jury that the question for them toconsider, was, whether the fire had beenoccasioned by gross negligence on the part of theDefendant; adding, that he was bound to proceedwith such reasonable caution as a prudent manwould have exercised under such circumstances.A verdict having been found for the plaintiff,a rule nisi for a new trial was obtained, on theground that the jury should have been directed toconsider, not, whether the Defendant had beenguilty of gross negligence with reference to thestandard of ordinary prudence, a standard toouncertain to afford any criterion; but whether hehad acted bona fide to the best of his judgment; ifhe had, he ought not to be responsible for theVAUGHN V. MENLOVE

§ A. NEGLIGENCE 9misfortune of not possessing the highest order ofintelligence. The action, under suchcircumstances, was of the first impression.R.V. RICHARDS, in support of the rule....... The measure of prudence varies so with thefaculties of men, that it is impossible to say whatis gross negligence with reference to the standardof what is called ordinary prudence....TINDAL, C.J.... [I]t is well known that haywill ferment and take fire if it be not carefullystacked.... It is contended, however, that thelearned Judge was wrong in leaving this to thejury as a case of gross negligence, and that thequestion of negligence was so mixed up withreference to what would be the conduct of a manof ordinary prudence that the jury might havethought the latter the rule by which they were todecide; that such a rule would be too uncertain toact upon; and that the question ought to have beenwhether the Defendant had acted honestly andbona fide to the best of his own judgment. That,however, would leave so vague a line as to affordno rule at all, the degree of judgment belonging toeach individual being infinitely various: andthough it has been urged that the care which aprudent man would take, is not an intelligibleproposition as a rule of law, yet such has alwaysbeen the rule adopted in cases of bailment,...Instead, therefore, of saying that the liabilityfor negligence should be co-extensive with thejudgment of each individual, which would be asvariable as the length of the foot of eachindividual, we ought rather to adhere to the rulewhich requires in all cases a regard to cautionsuch as a man of ordinary prudence wouldobserve. That was in substance the criterionpresented to the jury in this case, and therefore thepresent rule must be discharged.Questions and Notes1. Should a mentally disabled person be heldto the standard of a "reasonable person" or to thestandard of the average person with thatdisability? See Note, Tort Liability of the MentallyIll. in Negligence Actions, 93 Yale L.J. 153(1983).2. Is the standard for determining negligenceobjective or subjective? Which should it be? Foran argument that tort law should use a standardbased less on luck, see Schroeder, CorrectiveJustice and Liability for Increasing Risks, 37UCLA L. Rev. 439 (1990).3. For an economic analysis, see Schwartz,Objective and Subjective Standards ofNegligence: Defining the Reasonable Person toInduce Optimal Care and Optimal Populations ofInjurers and Victims, 78 Geo. L.J. 241 (1989). Fora good historical treatment of the development ofnegligence, see M. HORWITZ, THETRANSFORMATION OF AMERICAN LAW: 1780-1860(1977), chapter 3.4. The Emergency Doctrine. One importantfeature of the standard of reasonable care is that itis phrased in terms of what the reasonable personwould do in the same or similar circumstances.Thus, if the defendant is confronted with anemergency, we do not hold the defendant to thestandard of what might be expected of a personwho has plenty of time to think about the bestcourse of action. Thus, a typical jury instructionon emergency reads like this: "A person who issuddenly confronted by an emergency through nonegligence of his or her own and who iscompelled to decide instantly how to avoid injuryand who makes such a choice as a reasonablycareful person placed in such a position mightmake, is not negligent even though it is not thewisest choice." (Washington Pattern Instruction12.02) Note, however, the qualification that theemergency must not be a result of the defendant'sown prior negligence.ADAMS v. BULLOCK227 N.Y. 208, 125 N.E. 93 (1919)CARDOZO, J.The defendant runs a trolley line in the city ofDunkirk, employing the overhead wire system. Atone point, the road is crossed by a bridge orculvert which carries the tracks of the Nickle Plateand Pennsylvania Railroads. Pedestrians often usethe bridge as a short cut between streets, andchildren play on it. On April 21, 1916, theplaintiff, a boy of 12 years, came across thebridge, swinging a wire about 8 feet long. Inswinging it, he brought it in contact with thedefendant's trolley wire, which ran beneath thestructure. The side of the bridge was protected bya parapet 18 inches wide. Four feet 7: inchesbelow the top of the parapet, the trolley wire wasVAUGHN V. MENLOVE

10 1. ESTABLISHING A BREACH OF DUTYstrung. The plaintiff was shocked and burnedwhen the wires came together. He had a verdict atTrial Term, which has been affirmed at theAppellate Division by a divided court.We think the verdict cannot stand. Thedefendant in using an overhead trolley was in thelawful exercise of its franchise. Negligence,therefore, cannot be imputed to it because is usedthat system and not another. Dumphy v. Montreal,etc., Co., 1907 A.C. 454. There was, of course, aduty to adopt all reasonable precautions tominimize the resulting perils. We think there is noevidence that this duty was ignored. The trolleywire was so placed that no one standing on thebridge or even bending over the parapet couldreach it. Only some extraordinary casualty, notfairly within the area of ordinary prevision, couldmake it a thing of danger. Reasonable care in theuse of a destructive agency imports a high degreeof vigilance. Nelson v. Branford L.& W. Co., 75Conn. 548, 551, 54 Atl. 303; Braun v. BuffaloGen. El. Co., 200 N.Y. 484, 94 N.E. 206, 35L.R.A.(N.S.) 1089, 140 Am. St. Rep. 645, 21 Ann.Cas. 370. But no vigilance, however alert, unlessfortified by the gift of prophecy, could havepredicted the point upon the route where such anaccident would occur. It might with equal reasonhave been expected anywhere else. At any pointupon the route a mischievous or thoughtless boymight touch the wire with a metal pole, or flinganother wire across it. Green v. W.P. Co., 246 Pa.340, 92 Atl. 341, L.R.A. 1915C, 151. If unable toreach it from the walk, he might stand upon awagon or climb upon a tree. No special danger atthis bridge warned the defendant that there wasneed of special measures of precaution. No likeaccident had occurred before. No custom had beendisregarded. We think that ordinary caution didnot involve forethought of this extraordinary peril.It has been so ruled in like circumstances bycourts in other jurisdictions. Green v. W.P. Co.,supra; Vannatta v. Lancaster Co., 164 Wis. 344,159 N.W. 940; Parker v. Charlotte R.R. Co., 169N.C. 68, 85 S.E. 33; Kempf v. S.R. Co., 82 Wash.263, 144 Pac. 77, L.R.A. 1915C, 405; SheffieldCo. v. Morton, 161 Ala. 153, 49 South. 772.Nothing to the contrary was held in Braun v.Buffalo Gen. El. Co., 200 N.Y. 484, 94 N.E. 206,35 L.R.A.(N.S.) 1089, 140 Am. St. Rep. 645, 21Ann. Cas. 370, or Wittleder v. Citizens Electric Ill.Co., 47 App. Div. 410, 62 N.Y. Supp. 297. Inthose cases, the accidents were well within therange of prudent foresight. Braun v. Buffalo Gen.El. Co., supra, 200 N.Y. at page 494, 94 N.E. 206,35 L.R.A.(N.S.) 1089, 140 Am. St. Rep. 645, 21Ann. Cas. 370. That was also the basis of theruling in Nelson v. Branford Lighting & WaterCo., 75 Conn. 548, 551, 54 Atl. 303. There is, wemay add, a distinction not to be ignored betweenelectric light and trolley wires. The distinction isthat the former may be insulated. Chance of harm,though remote, may betoken negligence, ifneedless. Facility of protection may impose a dutyto protect. With trolley wires, the case is different.Insulation is impossible. Guards here and thereare of little value. To avert the possibility of thisaccident and others like it at one point or anotheron the route, the defendant must have abandonedthe overhead system, and put the wiresunderground. Neither its power nor its duty tomake the change is shown. To hold it liable uponthe facts exhibited in this record would be tocharge it as an insurer.The judgment should be reversed, and a newtrial granted, with costs to abide the event.HISCOCK, C.J., and CHASE, COLLIN,HOGAN, CRANE, and ANDREWS, JJ., concur.Judgments reversed, etc.Questions and Notes1. What does the court mean by suggestingthat compensating the plaintiff in this case wouldamount to making the trolley company into an"insurer"?2. What would be the advantages of makingthe trolley company an insurer? Thedisadvantages? Which would you prefer?b. "Customizing" the Standard of theReasonable PersonROBINSON v. LINDSAY92 Wash. 2d 410, 598 P.2d 392 (1979)UTTER, Chief JusticeAn action seeking damages for personalinjuries was brought on behalf of Kelly Robinsonwho lost full use of a thumb in a snowmobileaccident when she was 11 years of age. Thepetitioner, Billy Anderson, 13 years of age at theADAMS V. BULLOCK

§ A. NEGLIGENCE 11time of the accident, was the driver of thesnowmobile. After a jury verdict in favor ofAnderson, the trial court ordered a new trial.The single issue on appeal is whether a minoroperating a snowmobile is to be held to an adultstandard of care. The trial court failed to instructthe jury as to that standard and ordered a new trialbecause it believed the jury should have been soinstructed. We agree and affirm the order grantinga new trial.The trial court instructed the jury under WPI10.05 that:In considering the claimednegligence of a child, you are instructedthat it is the duty of a child to exercisethe same care that a reasonably carefulchild of the same age, intelligence,maturity, training and experience wouldexercise under the same or similarcircumstances.Respondent properly excepted to the giving ofthis instruction and to the court's failure to give anadult standard of care.The question of what standard of care shouldapply to acts of children has a long historicalbackground. Traditionally, a flexible standard ofcare has been used to determine if children'sactions were negligent. Under somecircumstances, however, courts have developed arationale for applying an adult standard.In the courts' search for a uniform standard ofbehavior to use in determining whether or not aperson's conduct has fallen below minimalacceptable standards, the law has developed afictitious person, the "reasonable man of ordinaryprudence." That term was first used in Vaughan v.Menlove, 132 Eng. Rep. 490 (1837).Exceptions to the reasonable person standarddeveloped when the individual whose conductwas alleged to have been negligent suffered fromsome physical impairment, such as blindness,deafness, or lameness. Courts also found itnecessary, as a practical matter, to departconsiderably from the objective standard whendealing with children's behavior. Children aretraditionally encouraged to pursue childhoodactivities without the same burdens andresponsibilities with which adults must contend.See Bahr, Tort Law and the Games Kids Play, 23S.D. L. REV. 275 (1978). As a result, courtsevolved a special standard of care to measure achild's negligence in a particular situation.In Roth v. Union Depot Co., 13 Wash. 525, 43P. 641 (1896), Washington joined "the overwhelmingweight of authority" in distinguishingbetween the capacity of a child and that of anadult. As the court then stated, at page 544, 43 P.at page 647:[I]t would be a monstrous doctrineto hold that a child of inexperience andexperience can come only with yearsshould be held to the same degree ofcare in avoiding danger as a person ofmature years and accumulatedexperience.The court went on to hold, at page 545, 43 P.at page 647:The care or caution required isaccording to the capacity of the child,and this is to be determined, ordinarily,by the age of the child.* * *[A] child is held ... only to theexercise of such degree of care anddiscretion as is reasonably to beexpected from children of his age."The current law in this state is fairly reflectedin WPI 10.05, given in this case. In the past wehave always compared a child's conduct to thatexpected of a reasonably careful child of the sameage, intelligence, maturity, training andexperience. This case is the first to consider thequestion of a child's liability for injuries sustainedas a result of his or her operation of a motorizedvehicle or participation in an inherently dangerousactivity.Courts in other jurisdictions have created anexception to the special child standard because ofthe apparent injustice that would occur if a childwho caused injury while engaged in certaindangerous activities were permitted to defendhimself by saying that other children similarlysituated would not have exercised a degree of carehigher than his, and he is, therefore, not liable forhis tort. Some courts have couched the exceptionin terms of children engaging in an activity whichis normally one for adults only. See, e.g., Dellwov. Pearson, 259 Minn. 452, 107 N.W.2d 859(1961) (operation of a motorboat). We believe abetter rationale is that when the activity a childengages in is inherently dangerous, as is theoperation of powerful mechanized vehicles, thechild should be held to an adult standard of care.Such a rule protects the need of children to bechildren but at the same time discouragesimmature individuals from engaging in inherentlydangerous activities. Children will still be free toUNITED STATES V. CARROLL TOWING

12 1. ESTABLISHING A BREACH OF DUTYenjoy traditional childhood activities withoutbeing held to an adult standard of care. Althoughaccidents sometimes occur as the result of suchactivities, they are not activities generallyconsidered capable of resulting in "grave dangerto others and to the minor himself if the care usedin the course of the activity drops below that carewhich the reasonable and prudent adult woulduse...." Daniels v. Evans, 107 N.H. 407, 408, 224A.2d 63, 64 (1966).Other courts adopting the adult standard ofcare for children engaged in adult activities haveemphasized the hazards to the public if the rule isotherwise. We agree with the Minnesota SupremeCourt's language in its decision in Dellwo v.Pearson, supra, 259 Minn. at 457-58, 107 N.W.2dat 863:Certainly in the circumstances ofmodern life, where vehicles moved bypowerful motors are readily availableand frequently operated by immatureindividuals, we should be skeptical of arule that would allow motor vehicles tobe operated to the hazard of the publicwith less than the normal minimumdegree of care and competence.Dellwo applied the adult standard to a 12-year-old defendant operating a motor boat. Otherjurisdictions have applied the adult standard tominors engaged in analogous activities.Goodfellow v. Coggburn, 98 Idaho 202, 203-04,560 P.2d 873 (1977) (minor operating tractor);Williams v. Esaw, 214 Kan. 658, 668, 522 P.2d950 (1974) (minor operating motorcycle);Perricone v. DiBartolo, 14 Ill. App. 3d 514, 520,302 N.E.2d 637 (1973) (minor operating gasolinepoweredminibike); Krahn v. LaMeres, 483 P.2d522, 525-26 (Wyo. 1971) (minor operatingautomobile). The holding of minors to an adultstandard of care when they operate motorizedvehicles is gaining approval from an increasingnumber of courts and commentators. Seegenerally Comment, Capacity of Minors to beChargeable with Negligence and Their Standardof Care, 57 NEB. L. REV. 763, 770-71 (1978);Comment, Recommended: An Objective Stand-ardof Care for Minors in Nebraska, 46 NEB. L. REV.699, 703-05 (1967).The operation of a snowmobile likewiserequires adult care and competence. Currently 2.2million snowmobiles are in operation in theUnited States. 9 ENVIR. RPTR. (BNA) 876 (1978Current Developments). Studies show thatcollisions and other snowmobile accidents claimhundreds of casualties each year and that theincidence of accidents is particularly high amonginexperienced operators. See Note, Snowmobiles ALegislative Program, 1972 WIS. L. REV. 477, 489n.58.At the time of the accident, the 13-year-oldpetitioner had operated snowmobiles for about 2years. When the injury occurred, petitioner wasoperating a 30-horsepower snowmobile at speedsof 10-20 miles per hour. The record indicates thatthe machine itself was capable of 65 miles perhour. Because petitioner was operating a powerfulmotorized vehicle, he should be held to thestandard of care and conduct expected of an adult.The order granting a new trial is affirmed.ROSELLINI, STAFFORD, WRIGHT,BRACHTENBACH, HOROWITZ, DOLLIVERand HICKS, JJ., and RYAN, J. Pro Tem., concur.Questions and Notes1. Many jurisdictions hold that a childyounger than 7 years of age is legally incapable ofnegligence. See generally, Donald J. Gee &Charlotte Peoples Hodges, The Liability ofChildren: At What Age is a Child Deemed toHave the Capacity Required for Negligence,Contributory Negligence, or ComparativeNegligence?, 35 Trial 52 (May 1999).2. Students with a taste for British humor mayenjoy Fardell v. Potts, or "The Reasonable Man,"found in A.P. HERBERT, UNCOMMON LAW 1-6.ROBINSON V. LINDSAY

§ A. NEGLIGENCE 13c. EfficiencyUNITED STATES v. CARROLLTOWING159 F.2d 169 (2d Cir. 1947)L. HAND, Circuit JudgeThese appeals concern the sinking of thebarge, "Anna C," on January 4, 1944, off Pier 51,North River.[The barge Anna C, owned by the ConnersMarine Co., sank after colliding with a tanker inNew York's North River, losing a cargo of flourowned by the United States. The tug Carroll,owned by Carroll Towing Co. and chartered toGrace Line, Inc., was in the process of moving anearby barge when the Anna C came unmoored.To get to the barge it wished to move, the Carrollhad to throw off a line connecting one string ofbarges - of which the Anna C was innermost orclosest to the pier - with barges across the inlet atanother pier. When the other barges were tied tothe Anna C her fasts to the pier apparently hadnot been strengthened.The Carroll and another tug went to help theflotilla of barges after it broke loose and couldhave possibly helped pump water from the AnnaC had anyone known it was taking on water aftercolliding with the tanker. However, the bargee (theperson responsible for watching the barge while itis in the harbor) for the Anna C had left her theevening before. At trial, the district court did notassign any responsibility for the loss to theConners Marine Co. The other defendantsappealed, claiming that the owners of the Anna Cwere either negligent themselves or liable for theirbargee's negligence. - ed.]* * *For this reason the question arises whether abarge owner is slack in the care of his barge if thebargee is absent.As to the consequences of a bargee's absencefrom his barge there have been a number ofdecisions; and we cannot agree that it neverground for liability even to other vessels who maybe injured. As early as 1843, Judge Sprague inClapp v. Young, held a schooner liable whichbroke adrift from her moorings in a gale inProvincetown Harbor, and ran down another ship.The ground was that the owners of the offendingship had left no one on board, even though it wasthe custom in that harbor not to do so. JudgeTenney in Fenno v. The Mary E. Cuff, treated it asone of several faults against another vessel whichwas run down, to leave the offending vesselunattended in a storm in Port Jefferson Harbor.Judge Thomas in The On-the-Level, held liable fordamage to a stake-boat, a barge moored to thestake-boat "south of Liberty Light, off the Jerseyshore," because she had been left without abargee; indeed he declared that the bargee'sabsence was "gross negligence." In the Kathryn B.Guinan, Ward, J., did indeed say that, when abarge was made fast to a pier in the harbor, asdistinct from being in open waters, the bargee'sabsence would not be the basis for the owner'snegligence. However, the facts in that case madeno such holding necessary; the offending barge infact had a bargee aboard though he was asleep. InThe Beeko, Judge Campbell exonerated a powerboat which had no watchman on board, whichboys had maliciously cast loose from hermoorings at the Marine Basin in Brooklyn andwhich collided with another vessel. Obviouslythat decision has no bearing on the facts at bar. InUnited States Trucking Corporation v. City of NewYork, the same judge refused to reduce therecovery of a coal hoister, injured at a foul berth,because the engineer was not on board; he hadgone home for the night as was apparently hiscustom. We reversed the decree, but for anotherreason. In The Sadie, we affirmed JudgeColeman's holding that it was actionablenegligence to leave without a bargee on board abarge made fast outside another barge, in the faceof storm warnings. The damage was done to theinside barge. In The P.R.R. No. 216, we chargedwith liability a lighter which broke loose from, orwas cast off, by a tanker to which she wasmoored, on the ground that her bargee should nothave left her over Sunday. He could not knowwhen the tanker might have to cast her off. Wecarried this so far in The East Indian, as to hold alighter whose bargee went ashore for breakfast,during which the stevedores cast off some of thelighter's lines. True, the bargee came back aftershe was free and was then ineffectual in takingcontrol of her before she damaged another vessel;but we held his absence itself a fault, knowing ashe must have, that the stevedores were apt to castoff the lighter. The Conway No. 23 went on thetheory that the absence of the bargee had noconnection with the damage done to the vesselitself; it assumed liability, if the contrary had beenproved. In The Trenton, we refused to hold amoored vessel because another outside of her hadovercharged her fasts. The bargee had gone awayfor the night when a storm arose; and ourBENNETT V. LONG ISLAND R. CO.

14 1. ESTABLISHING A BREACH OF DUTYexoneration of the offending vessel did dependupon the theory that it was not negligent for thebargee to be away for the night; but no danger wasapparently then to be apprehended. In BoukerContracting Co. v. Williamsburgh Power PlantCorporation, we charged a scow with halfdamages because her bargee left her withoutadequate precautions. In O'DonnellTransportation Co. v. M.& J. Tracy, we refused tocharge a barge whose bargee had been absentfrom 9 A.M. to 1:30 P.M., having "left the vesselto go ashore for a time on his own business."It appears from the foregoing review thatthere is no general rule to determine when theabsence of a bargee or other attendant will makethe owner of the barge liable for injuries to othervessels if she breaks away from her moorings.However, in any cases where he would be soliable for injuries to others obviously he mustreduce his damages proportionately, if the injuryis to his own barge. It becomes apparent whythere can be no such general rule, when weconsider the grounds for such a liability. Sincethere are occasions when every vessel will breakfrom her moorings, and since, if she does, shebecomes a menace to those about her; the owner'sduty, as in other similar situations, to provideagainst resulting injuries is a function of threevariables: (1) The probability that she will breakaway; (2) the gravity of the resulting injury, if shedoes; (3) the burden of adequate precautions.Possibly it serves to bring this notion into relief tostate it in algebraic terms: if the probability becalled P; the injury, L; and the burden, B; liabilitydepends upon whether B is less than L multipliedby P: i.e., whether B

§ A. NEGLIGENCE 15Questions and Notes1. Pre-emption. Sometimes the United StatesCongress decides to substitute its own regulatoryscheme for the ordinary duties of reasonable careand resultant "regulation" by state tort law. Thishas been done in the case of tobacco companies;see Cipollone v. Liggett Group, Inc., 505 U.S. 504(1992); and for certain farm products under theFederal Insecticide, Fungicide and RodenticideAct (FIFRA); see Didier v. Drexel Chemical Co.,86 Wash.App. 795, 938 P.2d 364 (1997) (farmer'sclaim against chemical manufacturer for damagecaused by liquid growth retardant werepreempted, including failure to warn, express andimplied warranty, consumer protection, andnegligence claims, as well as claims againstwholesaler and retailer).2. What Evidence EstablishesNegligence?Introductory Note. It is one thing to agreeupon the definition of the standard by which thedefendant's conduct should be judged; it is anotherthing to determine what kinds of evidence can beused to prove what would have been reasonablecare under the circumstances, and whether or notthe defendant's conduct met that standard.Although such questions shade into thesubstantive area of evidence law, tort law containsits own determinations of how a plaintiff canprove negligence. Remember 1 that the job of thejury is to determine what the facts are; the job ofthe judge is to decide what the law is. The law iscommunicated to the jury through the form of juryinstructions, and by the judge's determination ofwhether or not there is enough question about thefacts to require the jury's deliberation. Thus, anunderstanding of the operation of the negligenceprinciple requires that we examine the kinds ofcases in which courts decide how negligence canbe proved.1It may be helpful for you to review Appendix A, TheHistory of a Simple Torts Case, for clarification of thesepoints.a. Juror ExperienceSometimes jurors have enough experiencewith the defendant's activity that they can usetheir own standard of what would be reasonableunder the circumstances. For example, when theinjury is caused by an everyday behavior such asdriving, shoveling a sidewalk, using householdtools, etc., the plaintiff can ask the jury to decidethat the defendant was negligent based upon theirown judgment as to what a reasonable personwould do in the same or similar circumstances.However, in many cases the plaintiff will want tosupplement the jurors' experience with additionalarguments for finding the defendant negligent.b. The Use of Industry CustomBENNETT v. LONG ISLAND R. CO.163 N.Y. 1, 57 N.E. 79 (1900)PARKER, C.J.The defendant, while building an extension toits railroad of about 10 miles in length, put in fortemporary use a switch without either lock ortarget, and by means of that switch, while open, acaboose propelled by an engine was run atconsiderable speed into a flat car loaded with railsstanding on the side track. The plaintiff, anemploye of the defendant, was, with a number ofother employes, in the caboose, en route to thepoint where they were to begin the labors of theday; and, discovering that a collision wasimminent, he jumped, receiving injuries to theright arm, for which damages have been awardedto him by the judgment now under review. Theswitch had been in use for a number of months,was perfect of its kind, and when the engine andcaboose passed by it the night before the accidentthe switch was closed; and, had it not been openedby human agency between that time and the returnof the engine and caboose the next morning, theaccident could not have happened. Neitherpassenger nor freight trains had been run over thistrack down to this time, nor were they so run forseveral months thereafter; and no engine was runover this road in the time intervening the passingof this engine and caboose at night, and theirreturn in the morning. There was some evidenceof threats of mischief by one or more Italians whohad formerly been employed in the constructionof the road, and of the close proximity of one ofthem at the time of the accident; and, while therewas not sufficient evidence to require a findingBENNETT V. LONG ISLAND R. CO.

16 1. ESTABLISHING A BREACH OF DUTYthat the switch had been thrown open by one ofthem, the fact was conclusively established thatthere was no defect in the switch, and that itrequired a man to open it. Therefore it must havebeen opened either by a fellow servant or by anoutsider, and in either event the defendant is notliable to respond to this plaintiff for the results ofsuch an act, because in the former case it was theact of a co-employee; in the latter, the feloniousact of a third party. The Penal Code makes aninterference with a switch by a third party afelony. Section 636. The learned trial justicecorrectly charged the jury as to these propositions,and with his conception of the law the appellatedivision agreed. The question submitted to thejury were whether defendant should haveprovided a lock for the switch "for the purpose ofsecuring it against trespassers who mightinadvertently throw it out of place, or preventtemptation to persons maliciously minded, whomight find it so easy to turn the switch, by havingit secured, to make it more difficult," and also"whether or not it was its duty to have provided asignal, called a "target," so that an approachingconstruction train could have seen it at a distanceso far that they could have stopped the train intime to prevent the accident," and, in effect, thatan affirmative finding would establish the liabilityof the defendant to respond to the plaintiff indamages. The prevailing opinion at the appellatedivision agreed with this view of the law, andjustified the trial court, upon those grounds only,in refusing to dismiss the complaint, adsubmitting the case to the jury.When the plaintiff rested, he had proved thecharacter of the switch, that it was closed the nightbefore and open at the moment of the accident,and that it was without lock or target, but had notoffered any evidence tending to show that it wascustomary to either lock or place targets onswitches made use of during the construction ofrailroads. The motion for nonsuit having beendenied, the defendant proceeded to introduceevidence tending to show that the switch actuallyused was such as is ordinarily used during theconstruction of railroads, and that, duringconstructions, switches are never locked andnever targeted. William A. Cattell, formerlyassistant chief engineer on defendant's railroad,testified that the siding in question was put in fortemporary use during the construction of therailroad, and, further, that during his 12 years'experience on various railroads, in which he hadmuch familiarity with construction work, he didnot think he had ever seen a locked switch on aconstruction track, and targets very seldom, ifever. The assistant engineer on the New Yorkdivision of the Pennsylvania Railroad testifiedthat he had had 18 years of experience on variousrailroads, was familiar with construction work onnew railroads, and had never seen a switch lockedon tracks in process of construction, nor had heever seen targets on such switches; and, of thisparticular switch, he said it was of the regularstandard variety of switch found on constructionwork, and that it was not customary to lock ortarget such switches during the process ofconstruction. No witness was called whoattempted to contradict the testimony given bythese witnesses. At the close of the trial, therefore,the uncontradicted testimony showed that theswitch in use had not only performed its workperfectly during the months that it had been inoperation, and was a perfect switch of its kid, but,further, that the switch was of the standard varietyfound on construction work, and that it was notcustomary either to lock or target such switches.The question, therefore, was presented to thecourt, on a motion for a nonsuit, whether the jurycould be permitted to say, notwithstanding thisevidence, that the defendant failed in the dutywhich it owed to its employes, in not providingthe switch with a lock or target, or both.The ruleof law is that the master's duty to his servants doesnot require him to furnish the best knownappliances, but such only as are reasonably safe;and the test by which to determine whether he hasperformed that duty is not satisfied by an answerto the inquiry whether better appliances mighthave been obtained, but whether the selectionmade was reasonably prudent and careful.Stringham v. Hilton, 111 N.Y. 195, 18 N.E. 870, 1L.R.A. 483; Kern v. Refining Co., 125 N.Y. 50, 25N.E. 1071; De Vau v. Railroad Co., 130 N.Y. 632,28 N.E. 532; Harley v. Manufacturing Co., 142N.Y. 31, 36 N.E. 813. Applying the test prescribedby the cases above cited to the evidence presentedby this record, for the purpose of determiningwhether this defendant, as master, discharged itsfull duty, the result is necessarily reached that thisdefendant fully performed its obligation to itsemployes engaged in the construction of its roadwhen it made selection of this particular switch,without putting on it either a lock or target. True,it might have made use of one or both of theseappliances; but, according to the record, theswitch selected was such as is generally andefficiently used on construction work by otherrailroads, and hence in making selection of it thedefendant acted with reasonable care andprudence. The best known appliance forcompleted railroads that are in actual operation isROBINSON V. LINDSAY

§ A. NEGLIGENCE 17a switch with a lock and a target, but thedefendant was not called upon during theconstruction of this road to do more than tofurnish a switch that was reasonably safe. In Brickv. Railroad Co., 98 N.Y. 211, this court had beforeit a case where the plaintiff's intestate lost his lifewhile riding upon a construction train over adilapidated railroad, which the defendant wasengaged in reconstructing; and in denying theplaintiff's right to recover the court asserted thegeneral principle that it is the duty of the master toprovide and maintain for the use of his employessuitable machinery and other instrumentalities forthe performance of the duties enjoined upon them,and within that principle is generally included theduty of a railroad to provide a track sufficient forthe purpose in view, and to maintain it in goodorder. But the court further said that, while thisprinciple is generally applicable to railroads whichare in a state of completion, it must be consideredwith some qualification in reference to a roadwhich has become dilapidated and out of repair,and is in the process of being reconstructed. "Itmay be assumed, we think, that the deceased, inperforming the services in which he was engaged,and in traveling on the construction train,understood that he was not working upon a roadthat was finished and in good repair, but upon onewhich, having been long neglected, and littletraveled, - latterly only by construction trains, -subjected him to greater risks and perils thanwould be incurred under ordinary circumstances,and in entering defendant's service he assumedhazards incident to the same." The reasoning inthat case is as applicable generally to theconstruction of a railroad as to its reconstruction.The master who, while constructing a railroad,makes use of such appliances as the experience ofothers engaged in similar work has shown to besufficient and reasonably safe, performs his duty.Therefore this defendant performed its duty inselecting and using the switch in question; for,according to the evidence contained in this record,it selected the kind of switch that had been in useon other railroads during construction, - a switchthat had stood the practical test of user for so longa time that it had become the custom to use itwithout either lock or target during the period ofconstruction by railroads generally, andparticularly by all those with which the witnesseshad become familiar during their long and variedexperience in railroad building. The record,therefore, was barren of any evidence authorizinga jury to find that in selecting this switch for useduring construction, without either lock or target,the defendant acted unreasonably or imprudently,and therefore the motion to dismiss the complaintshould have been granted. The judgment shouldbe reversed, and a new trial granted, with costs toabide the event.GRAY, BARTLETT, MARTIN, VANN, andWERNER, JJ., concur. CULLEN, J., not sitting.Judgment reversed, etc.T.J. HOOPER60 F.2d 737 (2d Cir. 1932)[The defendant, owner of tugboats, had beenfound liable for the loss of ship and cargo when asevere storm sank two barges that the defendantwas towing. Defendant appealed; one of theissues was whether or not the defendant shouldhave anticipated the severe weather. - ed.]L. HAND, Circuit Judge* * *Moreover, the "Montrose" and the "Hooper"would have had the benefit of the evening reportfrom Arlington had they had proper receiving sets.This predicted worse weather; it read: "Increasingeast and southeast winds, becoming fresh tostrong, Friday night and increasing cloudinessfollowed by rain Friday." The bare "increase" ofthe morning had become "fresh to strong." To besure this scarcely foretold a gale of from forty tofifty miles for five hours or more, rising at onetime to fifty-six; but if the four tows thought thefirst report enough, the second ought to have laidany doubts. The master of the "Montrose" himself,when asked what he would have done had hereceived a substantially similar report, said that hewould certainly have put in. The master of the"Hooper" was also asked for his opinion, and saidthat he would have turned back also, but thisadmission is somewhat vitiated by theincorporation in the question of the statement thatit was a "storm warning," which the witnessseized upon in his answer. All this seems to us tosupport the conclusion of the judge that prudentmasters, who had received the second warning,would have found the risk more than the exigencywarranted; they would have been amplyvindicated by what followed. To be sure thebarges would, as we have said, probably havewithstood the gale, had they been well found; buta master is not justified in putting his tow to everyBENNETT V. LONG ISLAND R. CO.

18 1. ESTABLISHING A BREACH OF DUTYtest which she will survive, if she be fit. There is azone in which proper caution will avoid puttingher capacity to the proof; a coefficient of prudencethat he should not disregard. Taking the situationas a whole, it seems to us that these masters wouldhave taken undue chances, had they got thebroadcasts.They did not, because their privateradio receiving sets, which were on board, werenot in working order. These belonged to thempersonally, and were partly a toy, partly a part ofthe equipment, but neither furnished by the owner,nor supervised by it. It is not fair to say that therewas a general custom among coastwise carriers soto equip their tugs. One line alone did it; as for therest, they relied upon their crews, so far as theycan be said to have relied at all. An adequatereceiving set suitable for a coastwise tug can nowbe got at small cost and is reasonably reliable ifkept up; obviously it is a source of greatprotection to their tows. Twice every day they canreceive these predictions, based upon the widestpossible information, available to every vesselwithin two or three hundred miles and more. Sucha set is the ears of the tug to catch the spokenword, just as the master's binoculars are her eyesto see a storm signal ashore. Whatever may besaid as to other vessels, tugs towing heavy coalladen barges, strung out for half a mile, have littlepower to manoeuvre, and do not, as this caseproves, expose themselves to weather whichwould not turn back stauncher craft. They canhave at hand protection against dangers of whichthey can learn in no other way.Is it then a final answer that the business hadnot yet generally adopted receiving sets? Thereare, no doubt, cases where courts seem to makethe general practice of the calling the standard ofproper diligence; we have indeed given somecurrency to the notion ourselves. Ketterer v.Armour & Co. (C.C.A.) 247 F. 921, 931, L.R.A.1918D, 798; Spang Chalfant & Co. v. Dimon, etc.,Corp. (C.C.A.) 57 F.(2d) 965, 967. Indeed in mostcases reasonable prudence is in fact commonprudence; but strictly it is never its measure; awhole calling may have unduly lagged in theadoption of new and available devices. It nevermay set its own tests, however persuasive be itsusages. Courts must in the end say what isrequired; there are precautions so imperative thateven their universal disregard will not excuse theiromission. Wabash R. Co. v. McDaniels, 107 U.S.454, 459-461, 2 S. Ct. 932, 27 L. Ed. 605; Texas& P.R. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 47 L. Ed. 905; Shandrew v. Chicago, etc.,R. Co., 142 F. 320, 324, 325 (C.C.A. 8); Maynardv. Buck, 100 Mass. 40. But here there was nocustom at all as to receiving sets; some had them,some did not; the most that can be urged is thatthey had not yet become general. Certainly insuch a case we need not pause; when some havethought a device necessary, at least we may saythat they were right, and the others too slack. Thestatute (section 484, title 46, U.S. Code (46 USCA§ 484)) does not bear on this situation at all. Itprescribes not a receiving, but a transmitting set,and for a very different purpose; to call for help,not to get news. We hold the tugs [liable]therefore because had they been properlyequipped, they would have got the Arlingtonreports. The injury was a direct consequence ofthis unseaworthiness.Decree affirmed.Questions and Notes1. What is the relationship between theexistence of a custom and a finding on the issue ofnegligence?2. One torts expert has commented that "thiscase [T.J. Hooper] has had an enormous influencein the product liability context, especially after theSECOND RESTATEMENT. The single sentence that`a whole calling may have unduly lagged in theadoption of new and available devices,' 60 F.2d at740, has itself been worth billions of dollars intransfer payments." Epstein, The UnintendedRevolution in Product Liability Law, 10 CardozoL. Rev. 2193 (1989).c. Statutory ViolationsIntroductory Note. Sometimes thedefendant's conduct will violate a statutory duty.For example, suppose that there is an automobileaccident in which A is injured by a car driven byB. What is the relevance of the fact that B wasexceeding the speed limit at the time of theaccident?MARTIN v. HERZOG228 N.Y. 164, 126 N.E. 814 (1920)MARTIN V. HERZOG

§ A. NEGLIGENCE 19CARDOZO, J.The action is one to recoverdamages for injuries resulting in death. Plaintiffand her husband, while driving toward Tarrytownin a buggy on the night of August 21, 1915, werestruck by the defendant's automobile coming inthe opposite direction. They were thrown to theground, and the man was killed. At the point ofthe collision the highway makes a curve. The carwas rounding the curve, when suddenly it cameupon the buggy, emerging, the defendant tells us,from the gloom. Negligence is charged against thedefendant, the driver of the car, in that he did notkeep to the right of the center of the highway.Highway Law, § 286, subd. 3, and section 332(CONSOL. LAWS, c. 25). Negligence is chargedagainst the plaintiff's intestate, the driver of thewagon, in that he was traveling without lights.Highway Law, § 329a, as amended by LAWS1915, c. 367. There is no evidence that thedefendant was moving at an excessive speed.There is none of any defect in the equipment ofhis car. The beam of light from his lamps pointedto the right as the wheels of his car turned alongthe curve toward the left; and, looking in thedirection of the plaintiff's approach, he waspeering into the shadow. The case against himmust stand, therefore, if at all, upon thedivergence of his course from the center of thehighway. The jury found him delinquent and hisvictim blameless. The Appellate Divisionreversed, and ordered a new trial.We agree with the Appellate Division that thecharge to the jury was erroneous and misleading.The case was tried on the assumption that the hourhad arrived when lights were due. It was arguedon the same assumption in this court. In suchcircumstances, it is not important whether thehour might have been made a question for thejury. Todd v. Nelson, 109 N.Y. 316, 325, 16 N.E.360. A controversy put out of the case by theparties is not to be put into it by us. We say this byway of preface to our review of the contestedrulings. In the body of the charge the trial judgesaid that the jury could consider the absence oflight "in determining whether the plaintiff'sintestate was guilty of contributory negligence infailing to have a light upon the buggy as providedby law. I do not mean to say that the absence oflight necessarily makes him negligent, but it is afact for your consideration." The defendantrequested a ruling that the absence of a light onthe plaintiff's vehicle was "prima facie evidence ofcontributory negligence." This request wasrefused, and the jury were again instructed thatthey might consider the absence of lights as someevidence of negligence, but that it was notconclusive evidence. The plaintiff then requesteda charge that "the fact that the plaintiff's intestatewas driving without a light is not negligence initself," and to this the court acceded. Thedefendant saved his rights by appropriateexceptions.We think the unexcused omission of thestatutory signals is more than some evidence ofnegligence. It is negligence in itself. Lights areintended for the guidance and protection of othertravelers on the highway. Highway Law, § 329a.By the very terms of the hypothesis, to omit,willfully or heedlessly, the safeguards prescribedby law for the benefit of another that he may bepreserved in life or limb, is to fall short of thestandard of diligence to which those who live inorganized society are under a duty to conform.That, we think, is now the established rule in thisstate. Whether the omission of an absolute duty,not willfully or heedlessly, but throughunavoidable accident, is also to be characterizedas negligence, is a question of nomenclature intowhich we need not enter, for it does not touch thecase before us. There may be times, when, if juralniceties are to be preserved, the two wrongs,negligence and breach of statutory duty, must bekept distinct in speech and thought. POLLOCK,TORTS (10th Ed.) p. 458; CLARK & LINSEIL,TORTS (6th Ed.) p. 493; SALMOND,JURISPRUDENCE (5th Ed.) pp. 351, 363; Texas &Pac. Ry. Co. v. Right, supra, 241 U.S. 43, 36 Sup.Ct. 482, 60 L. Ed. 874; Chicago, B.& Q. Ry. Co. v.U.S., 220 U.S. 559, 31 Sup. Ct. 612, 55 L. Ed.582.In the conditions here present they cometogether and coalesce. A rule less rigid has beenapplied where the one who complains of theomission is not a member of the class for whoseprotection the safeguard is designed. Amberg v.Kinley, supra; Union Pac. Ry. Co. v. McDonald,152 U.S. 262, 283, 14 Sup. Ct. 619, 38 L. Ed.434; Kelley v. N.Y. State Rys., 207 N.Y. 342, 100N.E. 1115; Ward v. Hobbs, 4 App. Cas. 13.... [T]heomission of a safeguard prescribed by statute is ...held not merely some evidence of negligence, butnegligence in itself. Massoth v. D.& H. Canal Co.,supra. Cf. Cordell v. N.Y.C.& H.R.R.R. Co., supra.In the case at hand, we have an instance of theadmitted violation of a statute intended for theprotection of travelers on the highway, of whomthe defendant at the time was one. Yet the jurorswere instructed in effect that they were at libertyin their discretion to treat the omission of lightseither as innocent or as culpable. They wereallowed to "consider the default as lightly orMARTIN V. HERZOG

20 1. ESTABLISHING A BREACH OF DUTYgravely" as they would (THOMAS, J., in the courtbelow). They might as well have been told thatthey could use a like discretion in holding amaster at fault for the omission of a safetyappliance prescribed by positive law for theprotection of a workman. Scott v. InternationalPaper Co., 204 N.Y. 49, 97 N.E. 413; Fitzwater v.Warren, 206 N.Y. 49, 97 N. 99 N.E. 1042, 42L.R.A.(N.S.) 1229; Texas & Pac. Ry. Co. v.Rigsby, 241 U.S. 33, 36 Sup. Ct. 482, 60 L. Ed.874. Jurors have no dispensing power, by whichthey may relax the duty that one traveler on thehighway owes under the statute to another. It iserror to tell them that they have. The omission ofthese lights was a wrong, and, being whollyunexcused, was also a negligent wrong. Nolicense should have been conceded to the triers ofthe facts to find it anything else.We must be on our guard, however, againstconfusing the question of negligence with that ofthe causal connection between the negligence andthe injury. A defendant who travels without lightsis not to pay damages for his fault, unless theabsence of lights is the cause of the disaster. Aplaintiff who travels without them is not to forfeitthe right to damages, unless the absence of lightsis at least a contributing cause of the disaster. Tosay that conduct is negligence is not to say that itis always contributory negligence. "Proof ofnegligence in the air, so to speak, will not do."POLLOCK TORTS (10th Ed.) p. 472.We think, however, that evidence of acollision occurring more than an hour aftersundown between a car and an unseen buggy,proceeding without lights, is evidence from whicha causal connection may be inferred between thecollision and the lack of signals. Lambert v. StatenIsland R. R. Co., 70 N.Y. 104, 109, 110; Walsh v.Boston R.R. Co., 171 Mass. 52, 58, 50 N.E. 453.The Pennsylvania, 19 Wall. 125, 136, 137, 22 L.Ed. 148; Fisher v. Village of Cambridge, 133 N.Y.527, 532, 30 N.E. 663. If nothing else is shown tobreak the connection, we have a case, prima faciesufficient, of negligence contributing to the result.There may, indeed, be times when the lightson a highway are so many and so bright that lightson a wagon are superfluous. If that is so, it is forthe offender to go forward with the evidence, andprove the illumination as a kind of substitutedperformance. The plaintiff asserts that she did sohere. She says that the scene of the accident wasillumined by moonlight, by an electric lamp, andby the lights of the approaching car. Her positionis that, if the defendant did not see the buggy thusillumined, a jury might reasonably infer that hewould not have seen it anyhow. We may doubtwhether there is any evidence of illuminationsufficient to sustain the jury in drawing such aninference; but the decision of the case does notmake it necessary to resolve the doubt, and so weleave it open, It is certain that they were notrequired to find that lights on the wagon weresuperfluous. They might reasonably have foundthe contrary. They ought, therefore, to have beeninformed what effect they were free to give, inthat event, to the viation of the statute. Theyshould have been told, not only that the omissionof the light was negligence, but that it was "primafacie evidence of contributory negligence"; i.e.,that it was sufficient in itself unless its probativeforce was overcome (THOMAS, J., in courtbelow) to sustain a verdict that the decedent wasat fault. Kelly v. Jackson, 6 Pet. 622, 632, 8 L. Ed.523.Here, on the undisputed facts, lack of vision,whether excusable or not, was the cause of thedisaster. The defendant may have been negligentin swerving from the center of the road; but he didnot run into the buggy purposely, nor was hedriving while intoxicated, nor was he going atsuch a reckless speed that warning would ofnecessity have been futile. Nothing of the kind isshown. The collision was due to his failure to seeat a time when sight should have been arousedand guided by the statutory warnings. Someexplanation of the effect to be given to theabsence of those warnings, if the plaintiff failed toprove that other lights on the car or the highwaytook their place as equivalents, should have beenput before the jury. The explanation was asked forand refused.We are persuaded that the tendency of thecharge, and of all the rulings, following it, was tominimize unduly, in the minds of the triers of thefacts, the gravity of the decedent's fault. Errorsmay not be ignored as unsubstantial, when theytend to such an outcome. A statute designed forthe protection of human life is not to be brushedaside as a form of words, its commands reducedto the level of cautions, and the duty to obeyattenuated into an option to conform.The order of the Appellate Division should beaffirmed, and judgment absolute directed on thestipulation in favor of the defendant, with costs inall courts.[The dissenting opinion is omitted. - ed.]MARTIN V. HERZOG

§ A. NEGLIGENCE 21TEDLA v. ELLMAN280 N.Y. 124, 19 N.E.2d 987 (1939)LEHMAN, JudgeWhile walking along a highway, Anna Tedlaand her brother, John Bachek, were struck by apassing automobile, operated by the defendant[Ellman]. She was injured and Bachek was killed.Bachek was a deaf-mute. His occupation wascollecting and selling junk. His sister, Mrs. Tedla,was engaged in the same occupation. They oftenpicked up junk at the incinerator of the village ofIslip. At the time of the accident they werewalking along "Sunrise Highway" and wheelingbaby carriages containing junk and wood whichthey had picked up at the incinerator. It was aboutsix o'clock, or a little earlier, on a Sunday eveningin December. Darkness had already set in. Bachekwas carrying a lighted lantern, or, at least, there istestimony to that effect. The jury found that theaccident was due solely to the negligence of theoperator of the automobile. The defendants donot, upon this appeal, challenge the finding ofnegligence on the part of the operator. Theymaintain, however, that Mrs. Tedla and herbrother were guilty of contributory negligence asmatter of law.Sunrise Highway, at the place of the accident,consists of two roadways, separated by a grassplot. There are no footpaths along the highwayand the center grass plot was soft. It is notunlawful for a pedestrian, wheeling a babycarriage, to use the roadway under suchcircumstances, but a pedestrian using the roadwayis bound to exercise such care for his safety as areasonably prudent person would use. The Vehicleand Traffic Law (CONSOL. LAWS, c. 71) providesthat "Pedestrians walking or remaining on thepaved portion, or traveled part of a roadway shallbe subject to, and comply with, the rulesgoverning vehicles, with respect to meeting andturning out, except that such pedestrians shallkeep to the left of the center line thereof, and turnto their left instead of right side thereof, so as topermit all vehicles passing them in either directionto pass on their right. Such pedestrians shall notbe subject to the rules governing vehicles as togiving signals." Section 85, subd. 6. Mrs. Tedlaand her brother did not observe the statutory rule,and at the time of the accident were proceeding ineasterly direction on the east bound or right-handroadway. The defendants moved to dismiss thecomplaint on the ground, among others, thatviolation of the statutory rule constitutescontributory negligence as matter of law. They didnot, in the courts below, urge that any negligencein other respect of Mrs. Tedla or her brother bars arecovery. The trial judge left to the jury thequestion whether failure to observe the statutoryrule was a proximate cause of the accident; he leftto the jury no question of other fault or negligenceon the part of Mrs. Tedla or her brother, and thedefendants did not request that any other questionbe submitted. Upon this appeal, the only questionpresented is whether, as matter of law, disregardof the statutory rule that pedestrians shall keep tothe left of the center line of a highway constitutescontributory negligence which bars any recoveryby the plaintiff.... Until by chapter 114 of the Laws of 1933,it adopted subdivision 6 of section 85, quotedabove, there was no special statutory rule forpedestrians walking along a highway. Then for thefirst time it reversed, for pedestrians, the ruleestablished for vehicles by immemorial custom,and provided that pedestrians shall keep to the leftof the center line of a highway.The plaintiffs showed by the testimony of aState policeman that "there were very few carsgoing east" at the time of the accident, but thatgoing west there was "very heavy Sunday nighttraffic." Until the recent adoption of the newstatutory rule for pedestrians, ordinary prudencewould have dictated that pedestrians should notexpose themselves to the danger of walking alongthe roadway upon which the "very heavy Sundaynight traffic" was proceeding when they couldwalk in comparative safety along a roadway usedby very few cars. In is said that now, by force ofthe statutory rule, pedestrians are guilty ofcontributory negligence as matter of law whenthey use the safer roadway, unless that roadway isleft of the center of the road. Disregard of thestatutory rule of the road and observance of a rulebased on immemorial custom, it is said, isnegligence which as matter of law is a proximatecause of the accident, though observance of thestatutory rule might, under the circumstances ofthe particular case, expose a pedestrian to seriousdanger from which he would be free if hefollowed the rule that had been established bycustom. If that be true, then the Legislature hasdecreed that pedestrians must observe the generalrule of conduct which it has prescribed for theirsafety even under circumstances whereobservance would subject them to unusual risk;that pedestrians are to be charged with negligenceas matter of law for acting as prudence dictates. Itis unreasonable to ascribe to the Legislature anintention that the statute should have soextraordinary a result, and the courts may not giveTEDLA V. ELLMAN

22 1. ESTABLISHING A BREACH OF DUTYto a statute an effect not intended by theLegislature.* * *Negligence is failure to exercise the carerequired by law. Where a statute defines thestandard of care and the safeguards required tomeet a recognized danger, then, as we have said,no other measure may be applied in determiningwhether a person has carried out the duty of careimposed by law. Failure to observe the standardimposed by statute is negligence, as matter of law.On the other hand, where a statutory general ruleof conduct fixes no definite standard of carewhich would under all circumstances tend toprotect life, limb or property but merely codifiesor supplements a common-law rule, which hasalways been subject to limitations and exceptions;or where the statutory rule of conduct regulatesconflicting rights and obligations in mannercalculated to promote public convenience andsafety, then the statute, in the absence of clearlanguage to the contrary, should not be construedas intended to wipe out the limitations andexceptions which judicial decisions have attachedto the common-law duty; nor should it beconstrued as an inflexible command that thegeneral rule of conduct intended to preventaccidents must be followed even under conditionswhen observance might cause accidents. We mayassume reasonably that the Legislature directedpedestrians to keep to the left of the center of theroad because that would cause them to face trafficapproaching in that lane and would enable them tocare for their own safety better than if the trafficapproached them from the rear. We cannot assumereasonably that the Legislature intended that astatute enacted for the preservation of the life andlimb of pedestrians must be observed whenobservance would subject them to more imminentdanger.* * *I have so far discussed the problem of theplaintiffs' right to compensation for the damagescaused by defendants' negligence as if it dependedsolely upon the question of whether thepedestrians were at fault, and I have ignored thequestion whether their alleged fault was aproximate cause of the accident. In truth, the twoquestions cannot be separated completely. If thepedestrians had observed the statutory rule of theroad they would have proceeded easterly alongthe roadway on the left of the center grass plot,and then, it must be conceded, they would nothave been struck by the automobile in which thedefendants were riding, proceeding in the samedirection along the roadway on the right. Theirpresence on the roadway where they were struckwas an essential condition of their injury. Was italso as matter of law a proximate cause of theaccident? "The position of a vehicle which hasbeen struck by another may or many not havebeen one of the causes of the striking. Of course,it could not have been struck if it had not been inthe place where the blow came. But this is astatement of an essential condition, and not of acause of the impact. The distinction is betweenthat which directly or proximately produces orhelps to produce, a result as an efficient cause andthat which is a necessary condition or attendantcause of it.... That is, a contributing cause of anaccident, is usually a question for a jury, to bedetermined by the facts of the particular case."Newcomb v. Boston Protective Department, 146Mass. 596, 604, 16 N.E. 555, 559, 4 Am. St. Rep.354. Here the jury might find that the pedestriansavoided a greater, indeed an almost suicidal, riskby proceeding along the east bound roadway; thatthe operator of the automobile was entirelyheedless of the possibility of the presence ofpedestrians on the highway; and that a pedestriancould not have avoided the accident even if he hadfaced oncoming traffic. Under thosecircumstances the question of proximate cause, aswell as the question of negligence, was one offact.In each action, the judgment should beaffirmed, with costs.CRANE, C.J., and HUBBS, LOUGHRAN,and RIPPEY, JJ., concur.O'BRIEN and FINCH, JJ., dissent on theauthority of Martin v. Herzog, 228 N.Y. 164, 126N.E. 814.Judgments affirmed.Questions and Notes1. Can you square the holding in Tedla withMartin v. Herzog? If so, how; if not, which casewas wrongly decided?2. In Rumpelheimer v. Haddock, or "Port toPort" (A.P. HERBERT, UNCOMMON LAW, 237-242)the defendant's boat collided with the plaintiff'smotor-car; the court decided that admiralty lawprescribed the method by which the two shouldpass.TEDLA V. ELLMAN

§ A. NEGLIGENCE 233. The RESTATEMENT (2D), TORTS, providesthe following definitions of negligence per se andexcuse:§ 286. When Standard of Conduct Definedby Legislation or Regulation Will Be AdoptedThe court may adopt as the standardof conduct of a reasonable man therequirements of a legislative enactmentor an administrative regulation whosepurpose is found to be exclusively or inpart (a) to protect a class of personswhich includes the one whose interest isinvaded, and (b) to protect the particularinterest which is invaded, and (c) toprotect that interest against the kind ofharm which has resulted, and (d) toprotect that interest against theparticular hazard from which the harmresults.§ 288A. Excused Violations(1) An excused violation of alegislative enactment or anadministrative regulation is notnegligence.(2) Unless the enactment orregulation is construed not to permitsuch excuse, its violation is excusedwhen(a) the violation is reasonablebecause of the actor's incapacity;(b) he neither knows nor shouldknow of the occasion for compliance;(c) he is unable after reasonablediligence or care to comply;(d) he is confronted by anemergency not due to his ownmisconduct;(e) the compliance would involve agreater risk of harm to the actor or toothers.§ 288B. Effect of Violation(1) The unexcused violation of alegislative enactment or anadministrative regulation which isadopted by the court as defining thestandard of conduct of a reasonableman, is negligence in itself.(2) The unexcused violation of anenactment or regulation which is not soadopted may be relevant evidencebearing on the issue of negligentconduct.4. How does a finder of fact conclude thatthere is negligence per se?5. What happens if negligence per se isfound?6. What happens if negligence per se is notfound?7. A famous case in the history of negligenceper se is Gorris v. Scott, [1874] 9 L.R. (Exch.)125, in which a sheepowner sued the owner of aship that lost the sheep during transport. Thesheepowner based his negligence claim on astatute that required sheep to be kept in pensduring the voyage. Instead, the sheep were left onthe deck of the ship and washed overboard. Thedefendant replied that the purpose of the statutewas to protect other animals from contamination,not to avoid loss from storms. Who should haveprevailed?8. Some states (e.g., Washington) do notimpose negligence per se but rather permit thejury to use a statutory violation as evidence ofnegligence. (See R.C.W. 5.40.050, barringnegligence per se except in cases involving certainbuilding code violations or driving whileintoxicated.) What difference would it make to theplaintiff (or to the defendant) if an unexcusedstatutory violation were treated merely asevidence, rather than as a conclusive presumption,of negligence?9. A special problem arises with theapplication of the negligence per se doctrine tochildren. Should children be held to a standardthat takes into account their age (see Robinson v.Lindsay, supra), or should they be expected toabide by the standard set by the statute? Mostjurisdictions use the statute as a guideline as towhat a reasonable jury would do, but allow thejury to take into account the child's age inevaluating whether the child was negligent.DIAMOND, LEVINE & MADDEN, UNDERSTANDINGTORTS § 6.05.TEDLA V. ELLMAN

24 1. ESTABLISHING A BREACH OF DUTYd. Res Ipsa LoquiturIntroductory Note. As noted earlier, theplaintiff bears the burden of producing evidenceupon which the jury can conclude that thedefendant should be held liable. In many cases thedefendant's conduct is known, and it is up to thejury to decide whether the defendant's conductmeasured up to the standard of reasonable care.However, in some cases the evidence of what thedefendant did is missing for some reason: it mayhave been destroyed in an explosion, or may havehappened so long ago that witnesses areunavailable. Does the plaintiff then lose becausehe cannot carry his burden of proof? Not always.Tort law employs a doctrine called "res ipsaloquitur," which is discussed in the followingcases.(The term "res ipsa loquitur" is usuallypronounced "race ipsuh loh-kwitur." For amusingadvice on how to pronounce Latin terms, pleaseconsult Rex v. Venables and Others, or "The DeadPronunciation," found in A.P. HERBERT,UNCOMMON LAW 360-364.)MURPHY v. MONTGOMERYELEVATOR CO.65 Wash. App. 112, 828 P.2d 584 (1992)PETRICH, Chief JudgeMargaret Murphy sued Montgomery ElevatorCompany for injuries she claims resulted whenshe fell while stepping out of an elevator atHumana Hospital, her place of employment. Aftera jury verdict for Montgomery Elevator(Montgomery), Murphy appeals, claiminginstructional errors. She argues that the trial courterred in not giving the jury her proposedinstruction on res ipsa loquitur and in not givingher proposed instruction that Montgomery be heldto the highest standard of care, i.e., that of acommon carrier, to discover and correct adangerous condition on an elevator it inspected,maintained, and repaired under contract withHumana Hospital. We affirm.Murphy contended at trial that while she wasstepping out of the elevator on March 30, 1987,the elevator dropped two to four inches afteropening and that this caused her fall. HumanaHospital had a limited service contract withMontgomery to maintain the elevator. Humanadid not service the elevators; Montgomerymaintenanced and repaired them.During the trial, Murphy presented the experttestimony of Joseph Cunningham, a former cityelevator inspector. He testified that elevators donot suddenly drop if they have been properlymaintained and that the likely cause of themisleveling was a failure in the "suicide switch."Ken Durin, a Montgomery employee, and CarlBurkland, Montgomery's expert witness, testifiedthat a properly functioning elevator should notmislevel by more than one-half inch.I. Res Ipsa LoquiturContending that the exact cause of themalfunction was indeterminable but was the resultof improper service and maintenance, Murphyproposed a res ipsa loquitur instruction. 1 Res ipsaloquitur applies if the following conditions aremet:(1) the accident or occurrenceproducing the injury is of a kind whichordinarily does not happen in theabsence of someone's negligence, (2)the injuries are caused by an agency orinstrumentality within the exclusivecontrol of the defendant, and (3) theinjury-causing accident or occurrence isnot due to any voluntary action orcontribution on the part of the plaintiff.Horner v. Northern Pac. BeneficialAss'n. Hosps., Inc., 62 Wash. 2d 351,359, 382 P.2d 518 (1963). 2Whether the doctrine applies in a given caseis a question of law. Zukowsky v. Brown, 79 Wash.2d 586, 592, 488 P.2d 269 (1971). See also Brown1Murphy's proposed instruction no. 12 provided:"When an agency or instrumentality which producesinjury or damage is under the control of the defendant atthe time of injury or damage to plaintiff and the injury ordamage which occurred would ordinarily have not resultedif the defendant had used ordinary care, then, in theabsence of satisfactory explanation, you may infer that thedefendant was negligent and that such negligenceproduced the injury or damage complained of by theplaintiff."2We need not address the issue of what effect theadoption of comparative negligence has on the thirdelement of res ipsa loquitur. See W.P.I. 3D at 206.TEDLA V. ELLMAN

§ A. NEGLIGENCE 25v. Dahl, 41 Wash. App. 565, 580-83, 705 P.2d 781(1985) (court should give res ipsa loquiturinstruction when plaintiff presents substantialevidence of each of its elements, even thoughdefendant presented weighty, competentexculpatory evidence). Once the trial courtdetermines that the doctrine applies, the defendanthas the duty to come forward with exculpatoryevidence to overcome the inference of negligence.Metropolitan Mortgage & Securities Co. v.Washington Water Power, 37 Wash. App. 241,243, 679 P.2d 943 (1984).The trial court did not err in refusingMurphy's proposed instruction. Murphy failed tosatisfy the second condition of this doctrine,which requires the plaintiff to present evidenceconnecting the defendant with the negligence.When the plaintiff fails to show that a defendanthad exclusive control of the object causing theinjury, res ipsa loquitur does not apply. Howell v.Spokane & Inland Empire Blood Bank, 114 Wash.2d 42, 58, 785 P.2d 815 (1990) (John Doe donatedblood, defendant collected it, and hospitaltransfused it). See also Jackson v. CriminalJustice Training Commission, 43 Wash. App. 827,830-31, 720 P.2d 457 (1986) (not only mustdefendant have exclusive control, but plaintiffmust have corresponding lack of control to avoidthe injury); Hughes v. King Cy., 42 Wash. App.776, 784, 714 P.2d 316, review denied, 106 Wash.2d 1006 (1986) (plaintiff failed to presentevidence that county had any control over privatedrainage system); Cusick v. Phillippi, 42 Wash.App. 147, 155-56, 709 P.2d 1226 (1985) (absenceof exclusive control when investors could havedirected earlier sale of apples, and evidenceestablished multiple possible causes of browning).Murphy contends that Montgomery hadexclusive control of the elevator because it wassolely responsible for its maintenance and repairand because it had sole access to the elevators.Montgomery, on the other hand, contends thatbecause Humana owned, operated, and supervisedMontgomery's work, Montgomery did not haveexclusive control. Under their contract,Montgomery was to service the elevators twice amonth, and Humana was to notify Montgomery ifother service work or repair needed to be made.Franklin Simmons, the director of engineeringfor Humana Hospital at the time of Murphy'saccident, testified that Montgomery had a servicecontract with Humana, that none of Humana'semployees did any type of preventativemaintenance on the elevators, that Humana did norepair work on the elevators, and that Humana didnot help Montgomery in making any repairs. Healso testified that he would periodically inspectMontgomery's work, look at the elevator andelevator rooms to insure they were in properorder, and occasionally watch Montgomeryservice the elevators.Ken Durin, Montgomery's service man whoworked on Humana's elevators, testified that hewent to Humana twice a month for two hours at atime, that he inspected, lubricated, and cleaned theparts, and that he would check the controller,which included the "suicide switch." He alsotestified that if a part needed replacement hewould go to Humana's maintenance departmentfor authorization, that Humana had to authorizeany additional time or labor that needed to bedone and that Montgomery billed Humana for thattime and those parts.Because Humana retained some control overthe elevators, and because its contract withMontgomery was only a limited service contract,Montgomery did not have exclusive control of theelevators. Murphy's argument that Montgomerywas the only entity which did any work on theelevators is insufficient under the reasoning ofCusick v. Phillippi, supra, which held that thefailure of the investors to exercise their discretiondid not give Phillippi exclusive control of theapple harvest. Similarly here, the failure ofHumana to exercise its discretion did not giveMontgomery exclusive control of the elevators.* * *Judgment affirmed.MORGAN and SEINFELD, JJ., concur.Questions and Notes1. The RESTATEMENT (2D), TORTS, providesthe following:§ 328 D. Res Ipsa Loquitur(1) It may be inferred that harmsuffered by the plaintiff is caused bynegligence of the defendant when (a)the event is of a kind which ordinarilydoes not occur in the absence ofnegligence; (b) other responsible causes,including the conduct of the plaintiffand third persons, are sufficientlyeliminated by the evidence; and (c) theindicated negligence is within the scopeof the defendant's duty to the plaintiff.Note that although the three elements do notMURPHY V. MONGOMERY ELEVATOR CO.

26 1. ESTABLISHING A BREACH OF DUTYspecifically mention it, many commentators havesuggested that the primary rationale for using resipsa loquitur is in situations where the defendanthas superior access to the information that wouldexplain the cause of the accident. TheRestatement does not make this a requirement (§328D, cmt. k), but it is a useful guideline todistinguish those cases where res ipsa makes themost sense.2. If there were no doctrine of res ipsaloquitur, would the plaintiff be able to provenegligence in Judson? If so, how? If he could not,should the plaintiff lose?3. In Ybarra v. Spangard, 25 Cal. 2d 486, 154P.2d 687 (1945), a plaintiff sustained nervedamage in his shoulder and arm while underanesthetic for an appendectomy. The damage wasapparently caused by two hard objects left on thetable upon which the plaintiff was placed duringsurgery. Plaintiff could not identify who had leftthem there. The court held that the doctrine of resipsa loquitur was appropriate in this case since theinjury was of the sort unlikely to occur withoutnegligence, was caused by instrumentsexclusively controlled by the defendants, and wasnot contributed to by the plaintiff. The courtconcluded it would be unreasonable to force theplaintiff to prove who had caused his injury whensuch knowledge was known only by thedefendants. Is Ybarra an appropriate case for theapplication of the res ipsa doctrine? Why or whynot?4. Courts differ on the procedural effect of theres ipsa inference. Some hold that where the factsof the case permit the inference of negligence theplaintiff is relieved only of the burden ofproducing evidence, but he still bears the risk ofnonpersuasion if the jury is undecided. Thus, evenif the defendant produces no additional evidenceto prove that he did use reasonable care, the jurymay still find for the defendant. Other courts holdthat the burden of production and the risk ofnonpersuasion shift to the defendant; thus, unlessthe defendant's evidence of reasonable care (or ofsome other explanation of how the accidentoccurred) persuades the jury that it was moreprobable than not that the defendant was notnegligent, the plaintiff is entitled to a judgment.Do you think this is a significant difference?e. Evidence of Defendant's SafetyPoliciesHYJEK V. ANTHONY INDUSTRIES133 Wash.2d 414, 944 P.2d 1036 (1997)MADSEN, Justice.Plaintiff Gary Hyjek brought an actionclaiming design defect against Anthony Industries'subsidiary, K2 Corporation (K2), as a result of aninjury he sustained while using a K2 snowboard.Plaintiff contends the trial court's decisionexcluding evidence of subsequent remedialmeasures relating to the binding retention systemof K2's snowboards was error. We affirm.STATEMENT OF THE CASEK2 Corporation (K2), a subsidiary ofAnthony Industries, designs, manufactures, andmarkets snowboards and other winter sportsequipment. In 1990, K2 marketed a snowboardmodel called the “Dan Donnelly XTC.” Ex. 6.The Dan Donnelly XTC was sold withoutbindings, allowing customers to affix theirbindings of choice. K2 did not pre-drill thesnowboard for bindings. Without a pre-set holepattern, the purchaser could install his choice ofany bindings on the market by simply screwingthem into the snowboard. Coarse threaded screwswere screwed directly into a fiberglass retentionplate in the snowboard's core to affix the bindingsultimately chosen by the customer.Plaintiff purchased a Dan Donnelly XTC andwas injured on March 24, 1991, while using thesnowboard. He testified that the binding cameloose from the snowboard, which then struck hisinside left ankle. In 1993, Plaintiff sued AnthonyIndustries, claiming the snowboard as designedwas not reasonably safe in that it provided for theaffixing of bindings to the snowboard by means ofthreaded screws which foreseeably could and didprove to be an inadequate and unsafe bindingretention method.In 1992, K2 began to design a new bindingsystem involving “through-core inserts” moldedinto the snowboard. Fine threaded screws werethen screwed into the inserts to hold the bindingsMURPHY V. MONGOMERY ELEVATOR CO.

§ A. NEGLIGENCE 27in place. Clerk's Papers (CP) at 34-35. Plaintiffsought to enter into evidence K2's subsequentchange in design to support his claim for designdefect.K2 brought a motion in limine to excludeevidence of subsequent remedial measurespursuant to Evidence Rules (ER) 402, 403, and407 and the motion was granted. A jury returned aspecial verdict in favor of K2. Plaintiff appealedto Division One of the Court of Appeals, arguingthat ER 407 does not apply to strict productliability cases, and the evidence of subsequentmeasures should have been admitted. Weaccepted certification from the Court of Appeals.DISCUSSIONThe issue in this case is whether ER 407,which provides that a party may not introduceevidence of subsequent remedial measures toestablish culpable conduct or negligence, appliesin products liability cases where strict liability isalleged. ER 407 provides:When, after an event, measures aretaken which, if taken previously, wouldhave made the event less likely to occur,evidence of subsequent measures is notadmissible to prove negligence orculpable conduct in connection with theevent. This rule does not require theexclusion of evidence of subsequentmeasures when offered for anotherpurpose, such as proving ownership,control, or feasibility of precautionarymeasures, if controverted, orimpeachment.Washington's Evidence Rule is identical toformer Federal Evidence Rule 407 1 and codifiesthe common law doctrine which excludesevidence of subsequent remedial measures as aproof of an admission of fault. 2 Wash. Evid. R.1 While this case was pending Federal Evidence Rule 407was amended.2 Washington cases follow the rule, allowing theintroduction of subsequent remedial measures for purposesother than proving liability such as proving ownership,control, or feasibility of precautionary measures, orimpeachment. See Brown v. Quick Mix Co., 75 Wash.2d833, 454 P.2d 205 (feasibility); Peterson v. King County,41 Wash.2d 907, 252 P.2d 797 (on nature of conditionsexisting at the time of the incident); Cochran v. HarrisonMem'l Hosp., 42 Wash.2d 264, 254 P.2d 752 (dictum onissue on control of an instrumentality); Hatcher v. GlobeUnion Mfg. Co., 170 Wash. 494, 16 P.2d 824 (feasibility).These “other purposes” for which subsequent remedial407 advisory committee note; see also Cochran v.Harrison Mem'l Hosp., 42 Wash.2d 264, 254 P.2d752.Courts justify the exclusion of suchevidence because it is not relevant and it maydiscourage development of safety measures.Regarding relevancy, courts have found thatevidence of a subsequent repair is of littleprobative value, since the repair may not be anadmission of fault. See Columbia & Puget SoundR.R. Co. v. Hawthorne, 144 U.S. 202, 207-08, 12S.Ct. 591 (the Supreme Court reasoned thatevidence of subsequent remedial measures couldnot be used to prove negligence because suchevidence is irrelevant, confusing to the jury, andprejudicial to the defendant). Rule 407 is arejection of the notion that **1038 “ „because theworld gets wiser as it gets older, therefore it wasfoolish before.‟ ” Fed.R.Evid. 407 advisorycommittee note (quoting Hart v. Lancashire &Yorkshire Rya. Co., 21 L.T.R.N.S. 261, 263(1869)). A manufacturer may change a product'sdesign for many other reasons besides theexistence of a defect. Washington courts haveexcluded such evidence on the basis of relevancy.See Bartlett v. Hantover, 84 Wash.2d 426, 526P.2d 1217; Aldread v. Northern Pac. Ry. Co., 93Wash. 209, 160 P. 429; Wash. Evid. R. 407advisory committee note.While the historical use of relevancy asthe basis for excluding evidence of subsequentremedial measures as evidence of negligence iswell established, the more widely accepted basisfor exclusion appears to be the social policyrationale of encouraging safety precautions. KarlB. Tegland, 5 Wash. Prac. Evidence § 131, at 471(3d ed.1989); see also Codd v. Stevens Pass, Inc.,45 Wash.App. 393, 725 P.2d 1008. The FederalAdvisory Committee Note to Rule 407specifically indicates a distinct preference for thisrationale. Fed.R.Evid. 407 advisory committeenote. The expressed concern is that theintroduction of such evidence may provide adisincentive for people to take safety precautions.Rule 407 seeks to advance the public policy ofencouraging people to take steps in furtherance ofmeasures may be admitted must be controverted in orderto avoid the introduction of evidence under false pretenses.Wash. Evid. R. 407 advisory committee note. Althoughevidence of subsequent remedial measures may beadmissible under one of the exceptions to Wash. Evid. R.407, the evidence will not be admitted unless it is relevantas proof upon the actual issues in the case. Wash. Evid. R.407 advisory committee note.HYJEK V. ANTHONY INDUSTRIES

28 1. ESTABLISHING A BREACH OF DUTYadded safety by freeing them from the fear thatsuch steps will be used against them in a futurelawsuit. Carter v. City of Seattle, 21 Wash. 585,59 P. 500; see also Wash. Evid. R. 407 advisorycommittee note.Although the rule clearly applies inproducts liability actions based in negligence,where the claim seeks recovery under theories ofstrict liability, the applicability of Rule 407 variesfrom state to state and across the federal circuits.Neither the text of Washington's rule nor theAdvisory Committee's Note addresses the issue ofwhether Rule 407 should apply to strict productliability actions. See Wash. Evid. R. 407 advisorycommittee note. Additionally, Washington courtshave not squarely addressed this question. SeeHaysom v. Coleman Lantern Co., 89 Wash.2d474, 573 P.2d 785.In the federal circuits, a solid majority applyRule 407 in products cases where strict liability isalleged and exclude evidence of subsequentremedial measures only where an exceptionapplies. The First, Second, Third, Fourth, Fifth,Sixth, Seventh, and Ninth Circuits each hasapplied Rule 407 in strict products liability cases.Only the Eighth and Tenth Circuits allowevidence of subsequent remedial measures to beadmitted in strict product liability actions.The debate in the federal courts, however, hasrecently been answered. Federal Evidence Rule407 has been amended, adopting the view of themajority of the federal courts, providing that“evidence of the subsequent measures is notadmissible to prove negligence, culpable conduct,a defect in a product, a defect in a product'sdesign, or a need for a warning or instruction.”(emphasis added). Amend. Fed.R.Evid. 407.(Westlaw 1997).Plaintiff asks this court to adopt thereasoning of those courts finding that ER 407does not apply to strict products liability actionsand find that the trial court erred in excludingevidence of subsequent remedial measures.Finding the majority of federal courts holding thatER 407 applies to actions based in strict liabilitypersuasive and considering the recent amendmentto the Federal Rule, we decline to reverse the trialcourt's decision.Plaintiff relies primarily on the CaliforniaSupreme Court's decision in Ault v. InternationalHarvester Co., 13 Cal.3d 113, 528 P.2d 1148,which was one of the first to admit evidence ofsubsequent remedial measures in a strict liabilityaction. The Ault court reasoned that the publicpolicy considerations underling the rule were notvalid in strict products liability cases, and heldthat a plaintiff may use evidence of a subsequentremedial measure to prove a defect. The courtfound inapplicable the goal of encouraging repairsin the case of mass produced products. Id., 528P.2d at 1152 A mass producer, the court reasoned,would not “risk innumerable additional lawsuitsand the attendant adverse effect upon its publicimage” merely to avoid admission of the evidencein the first lawsuit. Id. The threat of futureincreased liability for failure to remedy a productdefect is a sufficient impetus to encourage themass producer to take remedial actions. Id.Therefore, the court concluded, exclusion ofsubsequent remedial actions only provides “ashield against potential liability.” Id.The Ault court also considered whether thephrase “culpable conduct” included the actions ofmanufacturers who were sued under strictliability. Id. at 1151, 117 Cal.Rptr. at 815 If theLegislature had intended to apply the rule to strictliability, the court asserted, a phrase without theconnotation of “affirmative fault” would havebeen used. Id.The Ault court's dual rationale, that theadditional impetus of exclusion is unnecessary toencourage remedial action in a products liabilitycase and that culpable conduct does not apply tostrict liability actions, has been followed bynumerous state courts and in early federal courtdecisions concerning ER 407. See e.g., Robbins v.Farmers Union Grain Terminal Ass'n, 552 F.2d788, 793 (8th Cir.1977; Herndon v. Seven BarFlying Serv., Inc., 716 F.2d 1322 (10th Cir.1983);Ford Motor Co. v. Fulkerson, 812 S.W.2d 119,125 (Ky.1991; Sanderson v. Steve Snyder Enter.,Inc., 196 Conn. 134, 491 A.2d 389; McFarland v.Bruno Mach. Corp., 68 Ohio St.3d 305, 626N.E.2d 659.Expanding on the courts' reasoning in Ault,the Nevada Supreme Court held that the rule“comes into play only where negligence or other„culpable‟ conduct is alleged.” Jeep Corp. v.Murray, 101 Nev. 640, 708 P.2d 297. Strictliability, the court stated, does not include eitherof those issues. Id. In a products liability case thefocus is on the defect in the product, not on anyculpable acts of the manufacturer. Id. Becausethere is no negligent conduct to influence in strictproducts liability cases the rule does not apply. Id;see also Caldwell v. Yamaha Motor Co., 648 P.2d519, 524 (Wyo.1982 (since due care or culpabilityis not at issue in a strict liability action, theexclusionary rule was not applicable).We, however, agree with the majority of thefederal circuits rejecting these arguments andHYJEK V. ANTHONY INDUSTRIES

§ A. NEGLIGENCE 29applying the exclusionary rule to actions broughtunder a theory of strict products liability. Thereasoning employed by the Fourth Circuit inWerner v. Upjohn Co., 628 F.2d 848 (4thCir.1980), exemplifies the rationale followed bythe majority. In Werner, the court found that,regardless of the theory used to require amanufacturer to pay damages, the deterrent totaking remedial measures is the same, namely, thefear that the evidence may ultimately be usedagainst the defendant. Id. at 856-57.* * *The differences between theories ofnegligence and strict liability are not significantenough to require different approaches whenviewed against the goal of encouragingmanufacturers to implement safety measures.Instead, the focus must be on the realisticimplications of applying the exclusionary rule instrict products liability cases. From a defendant'spoint of view, it does not matter what kind ofaction the plaintiff brings. Rather, themanufacturer's focus will be on the fact that if itmakes any repairs or safety improvements to itsproduct, evidence of those repairs may be used attrial to show the product was defectivelydesigned. Thus, failing to apply the exclusionaryrule in strict liability actions will have the samedeterrent effect on subsequent remedial measuresas in a negligence case.* * *In this case, none of the exceptions listed inthe Rule was offered to support admission of K-2's later modifications. Therefore, evidence ofsubsequent remedial measures was correctlyexcluded in this case.STEVENS v. BOSTON ELEVATED RY.CO.184 Mass. 476, 69 N.E. 338 (1904)[Plaintiff sued for personal injuries sustainedin an accident involving defendant's streetcar.Defendant had issued a rule to its motormen(streetcar operators) requiring them to sound agong when approaching an intersection. Plaintiffobtained a jury verdict in part based uponevidence that the motorman in question had notfollowed this rule, and that if he had done so, theaccident would have been prevented. - ed.]KNOWLTON, C.J.The only exception now relied on by thedefendant is to the admission in evidence of thedefendant's rule in regard to sounding the gong, inconnection with testimony that the defendant'smotorman disobeyed the rule, and that thisdisobedience was one of the causes of theaccident. The decisions in different jurisdictionsare not entirely harmonious upon the questionnow raised, but we are of opinion that the weightof authority and of reason tends to support theruling of the judge in the present case.It has been settled by various adjudications inthis commonwealth that the adoption of additionalprecautions for safety by a defendant, after anaccident, cannot be proved, as tending to showliability for the method used at the time of theaccident. Menard v. Boston & Maine Railroad,150 Mass. 386, 23 N.E. 214; Shinners v.Proprietors, etc., 154 Mass. 168, 28 N.E. 10, 12L.R.A. 554, 26 Am. St. Rep. 226; Downey v.Sawyer, 157 Mass. 418, 32 N.E. 654; Hewitt v.Taunton Street Railway Company, 167 Mass. 483,485, 486, 46 N.E. 106; Dacey v. New York, NewHaven & Hartford Railroad Company, 168 Mass.479-481, 47 N.E. 418. This is the general rule inother jurisdictions. Morse v. MinneapolisRailroad, 30 Minn. 465, 16 N. W. 358; ColumbiaRailroad Company v. Hawthorne, 144 U.S. 202,207, 208, 12 Sup. Ct. 591, 36 L. Ed. 405, andcases there cited.On the other hand, the violation of rulespreviously adopted by a defendant in reference tothe safety of third persons has generally beenadmitted in evidence as tending to shownegligence of the defendant's disobedient servantfor which the defendant is liable. Theadmissibility of such evidence has often beenassumed by this court without discussion. Mayo v.Boston & Maine Railroad, 104 Mass. 137-140;Connolly v. New York & New England RailroadCompany, 158 Mass. 8, 10, 11, 32 N.E. 937;Floytrup v. Boston & Maine Railroad, 163 Mass.152, 39 N.E. 797; Sweetland v. Lynn & BostonRailroad Company, 177 Mass. 574, 578, 579, 59N.E. 443, 51 L.R.A. 783. See, also, in othercourts, Chicago, etc., Railroad Company v.Lowell, 151 U.S. 209-217, 14 Sup. Ct. 281, 38 L.Ed. 131; Warner v. Baltimore & Ohio RailroadCompany, 168 U.S. 339-346, 18 Sup. Ct. 68, 42L. Ed. 491. In Floytrup v. Boston & MaineRailroad, ubi supra, Mr. Justice Barker said in theopinion, "The evidence of the usage of the roadthat one train should not enter a station whileanother train was engaged in deliveringpassengers there was competent upon the questionwhether the defendant's servants managed theHYJEK V. ANTHONY INDUSTRIES

30 1. ESTABLISHING A BREACH OF DUTYtrain in a proper manner." Similar statements ofthe law may be found in numerous cases. Dublin,Wickford & Wexford Railway Company v. Slattery,3 App. Cas. 1155-1163; Delaware, etc., RailroadCompany v. Ashley, 67 Fed. 209-212, 14 C.C.A.368; Cincinnati Street Railway Company v.Altemeier, 60 Ohio St. 10, 53 N.E. 300; L.S.&M.S. Railway Company v. Ward, 135 Ill. 511-518,26 N.E. 520; Georgia Railway Company v.Williams, 74 Ga. 723-773; Atlanta Cons. RailwayCompany v. Bates, 103 Ga. 333, 30 S.E. 41. Theonly decision to the contrary of which we areaware is in the case of Fonda v. RailwayCompany, 71 Minn. 438-449, 74 N.W. 166, 70Am. St. Rep. 341.It is contended by the defendant that there isno sound principle under which such evidence canbe admitted. The evidence is somewhat analogousto proof of the violation of an ordinance or statuteby the defendant or his servant which is alwaysreceived as evidence, although not conclusive, ofthe defendant's negligence. Wright v. Malden &Melrose Railway Company, 4 Allen, 283; Lane v.Atlantic Works, 111 Mass. 136; Hall v. Ripley, 119Mass. 135; Hanlon v. South Boston, etc., RailwayCompany, 129 Mass. 310. Such an ordinance orstatute, enacted by a body representing theinterests of the public, imposes prima facie uponeverybody a duty of obedience. Disobedience istherefore a breach of duty, unless some excuse forit can be shown which creates a different duty,that, as between man and man, overrides the dutyimposed by the statute or ordinance. Suchdisobedience in a matter affecting the plaintiff isalways competent upon the question whether thedefendant was negligent. So, a rule made by acorporation for the guidance of its servants inmatters affecting the safety of others is made inthe performance of a duty, by a party that is calledupon to consider methods, and determine how itsbusiness shall be conducted. Such a rule, madeknown to its servants, creates a duty of obedienceas between the master and the servant, anddisobedience of it by the servant is negligence asbetween the two. If such disobedience injuriouslyaffects a third person, it is not to be assumed infavor of the master that the negligence wasimmaterial to the injured person, and that hisrights were not affected by it. Rather ought it to heheld an implication that there was a breach of dutytowards him, as well as towards the master whoprescribed the conduct that he thought necessaryor desirable for protection in such cases. Againstthe proprietor of a business, the methods which headopts for the protection of others are someevidence of what he thinks necessary or proper toinsure their safety.A distinction may well be made betweenprecautions taken voluntarily before an accident,and precautions which are suggested and adoptedafter an accident. This distinction is pointed out inColumbia Railroad Company v. Hawthorne, 144U.S. 202-207, 208, 12 Sup. Ct. 591, 36 L. Ed.405. Mr. Justice Gray, referring to changes madeby a defendant after an accident, says in theopinion, "It is now settled, upon muchconsideration, by the decisions of the highestcourts of most of the states in which the questionhas arisen, that the evidence is incompetent,because the taking of such precautions against thefuture is not to be construed as an admission ofresponsibility for the past, has no legitimatetendency to prove that the defendant has beennegligent before the accident happened, and iscalculated to distract the minds of the jury fromthe real issue, and to create a prejudice against thedefendant." In Morse v. Minneapolis & St. LouisRailway, 30 Minn. 465, 16 N.E. 358, it is said,referring to the same subject, that "a person mayhave exercised all the care which the law required,and yet in the light of his new experience, after anunexpected accident has occurred, and as ameasure of extreme caution, he may adoptadditional safeguards." See, also, Illinois CentralRailroad Company v. Swisher, 61 Ill. App. 611. InMenard v. Boston & Maine Railroad, 150 Mass.386, 23 N.E. 214, and in some of the earlier cases,there is language which goes further than thedecision, and which might imply that suchevidence as was received in this case isincompetent, but the case is authority only for thatwhich was decided.Exceptions overruled.Questions and Notes1. What is the basis for the rule against usingevidence of post-accident repairs?2. Is it distinguishable from using adefendant's company rulebooks as evidence thatthe defendant was negligent?STEVENS V. BOSTON ELEVATED RY. CO.

§ A. NEGLIGENCE 313. Establishing Vicarious Liability(Respondeat Superior)HAYES v. FAR WEST SERVICES, INC.50 Wash. App. 505, 749 P.2d 178 (1988)WILLIAMS, J.Frederick Hayes and Judy Frounfelter broughtsuit for damages against Thomas McGrath and hisformer law firm, Torbenson, Thatcher, McGrath,Treadwell & Schoonmaker, Inc., P.S., for injuriesarising out of McGrath's shooting of Hayes. Onmotion for summary judgment, the trial courtdismissed the firm as a defendant. Hayes appeals.The facts are these: at approximately 4:30p.m. on February 11, 1980, McGrath went to arestaurant/cocktail establishment in Kirkland.From then until about 11 o'clock, he imbibedconsiderable alcohol while socializing anddiscussing personal and firm-related business.After 11 o'clock, McGrath continued to socializeuntil approximately 1:45 a.m., when he andHayes, another bar patron, exchanged words.Shortly thereafter, the two encountered each otheroutside, and after another exchange, McGrath shotHayes in what he claims was self-defense.Frounfelter, who was in the company of Hayes, isalleged to have sustained emotional trauma.The basic question is whether the law firm isliable on the theory of respondeat superior fordamages arising out of McGrath's shooting ofHayes. The basic rule is stated in Kuehn v. White,24 Wash. App. 274, 277, 600 P.2d 679 (1979):A master is responsible for theservant's acts under the doctrine ofrespondeat superior when the servantacts within the scope of his or heremployment and in furtherance of themaster's business. Where a servant stepsaside from the master's business in orderto effect some purpose of his own, themaster is not liable.See also Kyreacos v. Smith, 89 Wash. 2d 425,429, 572 P.2d 723 (1977); Westerland v. ArgonautGrill, 185 Wash. 411, 55 P.2d 819 (1936).Under the traditional interpretation ofrespondeat superior, there is not sufficientevidence to establish liability on the part of thelaw firm. Viewing the evidence in a light mostfavorable to the nonmoving parties, Hayes andFrounfelter, as we must, there is nothing toindicate either directly or by inference thatMcGrath was acting in the scope of hisemployment when he shot Hayes. There is noevidence McGrath transacted firm business orengaged in any promotional activities any timeafter 11 p.m.But in Dickinson v. Edwards, 105 Wash. 2d457, 716 P.2d 814 (1986), the Supreme Courtextended the doctrine of respondeat superior,allowing a plaintiff to recover from abanquet-hosting employer if the following primafacie case is proven:1. The employee consumed alcoholat a party hosted by the employer whichwas held to further the employer'sinterest in some way and at which theemployee's presence was requested orimpliedly or expressly required by theemployer.2. The employee negligentlyconsumed alcohol to the point ofintoxication when he knew or shouldhave known he would need to operate avehicle on some public highway uponleaving the banquet.3. The employee caused theaccident while driving from the banquet.4. The proximate cause of theaccident, the intoxication, occurred atthe time the employee negligentlyconsumed the alcohol.5. Since this banquet was beneficialto the employer who impliedly orexpressly required the employee'sattendance, the employee negligentlyconsumed this alcohol during the scopeof his employment. Dickinson, at 468,716 P.2d 814.Appellants, citing Dickinson v. Edwards,supra, argue that McGrath's firm is liable underrespondeat superior because McGrath negligentlybecame intoxicated while acting within the scopeof his employment, and his intoxication was theproximate cause of the shooting.The decision in Dickinson v. Edwards, supra,is based on Chastain v. Litton Systems, Inc., 694F.2d 957 (4th Cir. 1982). That case employedessentially a three prong analysis: (1) was theemployee's consumption of alcohol within thescope of employment, (2) did the employee'sconsumption of alcohol while within the scope ofHAYES V. FAR WEST SERVICES INC.

32 1. ESTABLISHING A BREACH OF DUTYemployment constitute negligence, and (3) did thenegligent intoxication continue until the time ofthe incident and constitute a proximate cause ofthe injuries. Chastain, at 962; see also Childers v.Shasta Livestock Auction Yard, Inc., 190 Cal. App.3d 792, 235 Cal. Rptr. 641 (3d Dist. 1987).Under this formulation of the rule, there issufficient evidence to present a jury question as towhether McGrath was acting within the scope ofhis employment when he consumed alcohol. Priorto 8:30 p.m., McGrath met with severalacquaintances, including a friend from aninsurance company he had been trying to secureas a client for the firm for some time; McGrathlater submitted a charge slip marked"Entertainment" to his firm for bar purchaseswhile with the friend. From about 8:30 p.m. to 11p.m., McGrath discussed settlement possibilitieswith opposing counsel on a bankruptcy case hewas handling for his firm; McGrath's firmsubsequently billed their client in the bankruptcyfor 2.7 hours for that settlement conference.Moreover, McGrath's activities appear consistentwith his firm's policies; members wereencouraged to engage in promotional activities,and the firm gave partners such as McGrathconsiderable discretion in billing for expenses, asevidenced by the numerous reimbursements madeto McGrath for his business and entertainmentexpenditures.There is also sufficient evidence to present ajury question as to whether McGrath consumedalcohol to the point of intoxication while withinthe scope of his employment. McGrath admittedto having several drinks prior to 11 p.m., andHayes and several others said McGrath appearedintoxicated before the shooting.But there is nothing in the record to show thatMcGrath's consumption of alcohol was negligent.Negligence necessarily involves a foreseeablerisk; if an actor could not reasonably foresee anyinjury as the result of his act, there is nonegligence and no liability. Hunsley v. Giard, 87Wash. 2d 424, 435, 553 P.2d 1096 (1976). InDickinson v. Edwards, supra, negligence wasdefined in terms of whether the employee knew orshould have known he would be operating amotor vehicle on a public highway upon leavingthe banquet. Because the employee had driven tothe banquet, it was foreseeable that he would haveto drive away, and the risks of driving whileintoxicated are well-recognized. Such a situationis far removed from the particulars of this case.There is no evidence to suggest McGrath knew orshould have known that his drinking would leadto his becoming involved in an altercation thatwould result in his firing a gun at another barpatron; nothing in the record shows that thecocktail lounge was a frequent scene of suchincidents or that its patrons were known to beconfrontational, or that when intoxicated,McGrath became violent or had ever drawn a gun.Accordingly, there is not sufficient evidence toestablish liability on the part of the law firm underthe application of respondeat superior set forth inDickinson v. Edwards, supra.The remaining arguments are insubstantial.The notion of "enterprise liability" wasspecifically rejected by the court in Kuehn v.White, 24 Wash. App. at 279-80, 600 P.2d 679,and no subsequent cases have indicated otherwise.Nothing in the record supports a finding ofliability based on either a theory of negligentretention and supervision or a duty to controlbecause of a "special relation" between McGrathand his firm. And finally, the court did not err instriking certain materials submitted by theappellants, nor was its denial of their motion forcontinuance an abuse of discretion.Affirmed.Questions and Notes1. Obviously the plaintiff is often veryinterested in whether or not the defendant'semployer will be liable for the defendant'snegligence, since employers usually carryinsurance and usually have much greaterresources with which to pay a judgment. Sincemost people have employers, it is important tolook at the possibility of respondeat superiorwhenever you are analyzing an injury. Hayesdiscusses the requirement that, to impose liabilityupon the employer, the evidence must establishthat the negligent act was committed during thecourse and scope of employment. Prior to thatdetermination, there must be a finding that theperson who caused the injury was an employee (asdistinguished from an independent contractor).The test used by most courts is whether or not thealleged employer had a right to control thebehavior of the alleged employee. If I hire aplumber to hook up my washing machine, forexample, I don't control how he does his work,and he is therefore not my employee; anynegligence he commits is his responsibility, notmine. On the other hand, if I am a plumbingcontractor and I hire a person to do plumbinginstallation for me, I do have the right to controlthe way the work is done and therefore that personwill be considered my employee.HAYES V. FAR WEST SERVICES INC.

§ A. NEGLIGENCE 332. The issues of respondeat superior areaddressed more fully in RESTATEMENT (2D),TORTS § 317, and in the RESTATEMENT (2D) OFAGENCY §§ 219-49.3. Sometimes an employer can be liable forthe wrongs done by an employee where theemployer was negligent in the hiring orsupervision of the employee. For example, inCarlsen v. Wackenhut Corp., 73 Wash.App. 247,868 P.2d 882, review denied, 124 Wash.2d 1022,881 P.2d 255 (1994), the employer hired ushers(who doubled as "security") for a rock concertwithout adequate determination of whether theywere suitable. When an employee lured aconcertgoer under the stage and sexually assaultedher, the victim sued the employer for negligence.Although the trial court dismissed on summaryjudgment, the appellate court held that a jurycould find that there had been inadequatescreening of the employees and thereforereinstated the complaint.4. Even if there is agreement on the wisdomof holding “deep pockets” liable where negligenceleads to the infliction of intentional harm, there isno consensus on whether to divide the liabilitybetween the deep pocket and the malefactor, or tomake the deep pocket liable for the whole:William D. Underwood and Michael D. Morrison,Apportioning Responsibility in Cases InvolvingClaims of Vicarious, Derivative, or StatutoryLiability for Harm Directly Caused by theConduct of Another, 55 Baylor L. Rev. 617(2003).5. A related principle is that of negligententrustment. If the possessor of a dangerousinstrument, such as a gun or a motor vehicle,negligently entrusts it to someone who isincompetent to handle it safely, the owner can beheld liable to a victim who is injured thereby. Forexample, in Splawnik v. DiCaprio, 146 A.D.2d333, 540 N.Y.S.2d 615 (1989), a gun dealer sold aloaded gun to a woman who allegedly knew thatthe purchaser was depressed. When shecommitted suicide, her estate sued the gun dealerfor negligent entrustment.6. Employers are often caught in a dilemma.If they don't pass along information that wouldwarn others about the dangers of an employeethey have fired, they face liability for failure towarn. On the other hand, if they pass alonginformation that later turns out to have insufficientbasis in fact, they may face liability fordefamation. See J. Bradley Buckhalter, Speak NoEvil: Negligent Employment Referral and theEmployer's Duty to Warn (or, How Employers CanHave Their Cake and Eat It Too), 22 Seattle U. L.Rev. 265 (1998); see also Markita D. Cooper,Beyond Name, Rank and Serial Number: "NoComment" Job Reference Policies, ViolentEmployees and the Need for Disclosure-ShieldLegislation, 5 Va. J. Soc. Pol'y & L. 287 (1998).7. One of the difficulties faced by courts incases of sexual harassment is whether or not tomake the employer vicariously liable for tortscommitted by employees. In a recent case, theU.S. Supreme Court tried to strike a reasonablebalance. In Burlington Industries, Inc. v. Ellerth,118 S. Ct. 2257 (1998), the court decided that theplaintiff need not present evidence that theemployer knew that the harassment was takingplace, but the employer can present an affirmativedefense of having used reasonable care to preventthe harassment. The case is analyzed in WilliamR. Corbett, Faragher, Ellerth, and the FederalLaw of Vicarious Liability for Sexual Harassmentby Supervisors: Something Lost, SomethingGained, and Something to Guard Against, 7 WM.& MARY BILL RTS. J. 801 (1999)§ B. Strict LiabilityIntroductory Note. Although negligence isthe most common basis for the plaintiff's claimthat he is entitled to recover damages from thedefendant, it is not the exclusive basis for a tortclaim. "Strict liability" is the term used to describecases in which the plaintiff is able to recover eventhough the defendant has exercised reasonablecare. In Chapter Six we will consider cases thatimpose strict liability for a defective product.Here, however, we are concerned with caseswhere strict liability is imposed because of thenature of the defendant's activity. 11Some other systems, like the worker's compensationsystem in most states, provide compensation without proofof fault. However, they typically provide significantlysmaller benefits than those available for a tort recovery. Inthis chapter we consider cases where the liability is similarin its structure to a negligence recovery, but eliminates theneed for proving negligence.HAYES V. FAR WEST SERVICES INC.

34 1. ESTABLISHING A BREACH OF DUTY1. The Distinction Between StrictLiability and NegligenceHELLING v. CAREY83 Wash. 2d 514, 519 P.2d 981 (1974)HUNTER, Associate JusticeThis case arises from a malpractice actioninstituted by the plaintiff (petitioner), BarbaraHelling.The plaintiff suffers from primary open angleglaucoma. Primary open angle glaucoma isessentially a condition of the eye in which there isan interference in the ease with which thenourishing fluids can flow out of the eye. Such acondition results in pressure gradually risingabove the normal level to such an extent thatdamage is produced to the optic nerve and itsfibers with resultant loss in vision. The first lossusually occurs in the periphery of the field ofvision. The disease usually has few symptomsand, in the absence of a pressure test, is oftenundetected until the damage has become extensiveand irreversible.The defendants (respondents), Dr. Thomas F.Carey and Dr. Robert C. Laughlin, are partnerswho practice the medical specialty ofophthalmology. Ophthalmology involves thediagnosis and treatment of defects and diseases ofthe eye.The plaintiff first consulted the defendants formyopia, nearsightedness, in 1959. At that time shewas fitted with contact lenses. She next consultedthe defendants in September, 1963, concerningirritation caused by the contact lenses. Additionalconsultations occurred in October, 1963;February, 1967; September, 1967; October, 1967;May, 1968; July, 1968; August, 1968; September,1968; and October, 1968. Until the October 1968consultation, the defendants considered theplaintiff's visual problems to be related solely tocomplications associated with her contact lenses.On that occasion, the defendant, Dr. Carey, testedthe plaintiff's eye pressure and field of vision forthe first time. This test indicated that the plaintiffhad glaucoma. The plaintiff, who was then 32years of age, had essentially lost her peripheralvision and her central vision was reduced toapproximately 5 degrees vertical by 10 degreeshorizontal.Thereafter, in August of 1969, afterconsulting other physicians, the plaintiff filed acomplaint against the defendants alleging, amongother things, that she sustained severe andpermanent damage to her eyes as a proximateresult of the defendants' negligence. During trial,the testimony of the medical experts for both theplaintiff and the defendants established that thestandards of the profession for that specialty in thesame or similar circumstances do not requireroutine pressure tests for glaucoma upon patientsunder 40 years of age. The reason the pressure testfor glaucoma is not given as a regular practice topatients under the age of 40 is that the diseaserarely occurs in this age group. Testimonyindicated, however, that the standards of theprofession do require pressure tests if the patient'scomplaints and symptoms reveal to the physicianthat glaucoma should be suspected.The trial court entered judgment for thedefendants following a defense verdict. Theplaintiff thereupon appealed to the Court ofAppeals, which affirmed the judgment of the trialcourt. Helling v. Carey, No. 1185-41918-1 (Wn.App., filed Feb. 5, 1973). The plaintiff thenpetitioned this Court for review, which wegranted.In her petition for review, the plaintiff'sprimary contention is that under the facts of thiscase the trial judge erred in giving certaininstructions to the jury and refusing her proposedinstructions defining the standard of care whichthe law imposes upon an ophthalmologist. As aresult, the plaintiff contends, in effect, that shewas unable to argue her theory of the case to thejury that the standard of care for the specialty ofophthalmology was inadequate to protect theplaintiff from the incidence of glaucoma, and thatthe defendants, by reason of their special ability,knowledge and information, were negligent infailing to give the pressure test to the plaintiff atan earlier point in time which, if given, wouldhave detected her condition and enabled thedefendants to have averted the resultingsubstantial loss in her vision.We find this to be a unique case. Thetestimony of the medical experts is undisputedconcerning the standards of the profession for thespecialty of ophthalmology. It is not a question inthis case of the defendants having any greaterspecial ability, knowledge and information thanother ophthalmologists which would require thedefendants to comply with a higher duty of carethan that "degree of care and skill which isexpected of the average practitioner in the class towhich he belongs, acting in the same or similarcircumstances." Pederson v. Dumouchel, 72 Wash.2d 73, 79, 431 P.2d 973 (1967). The issue isHELLING V. CAREY

§ B. STRICT LIABILITY 35whether the defendants' compliance with thestandard of the profession of ophthalmology,which does not require the giving of a routinepressure test to persons under 40 years of age,should insulate them from liability under the factsin this case where the plaintiff has lost asubstantial amount of her vision due to the failureof the defendants to timely give the pressure testto the plaintiff.The defendants argue that the standard of theprofession, which does not require the giving of aroutine pressure test to persons under the age of40, is adequate to insulate the defendants fromliability for negligence because the risk ofglaucoma is so rare in this age group. Thetestimony of the defendant, Dr. Carey, however, isrevealing as follows:Q. Now, when was it, actually, thefirst time any complaint was made toyou by her of any field or visual fieldproblem? A. Really, the first time thatshe really complained of a visual fieldproblem was the August 30th date.[1968] Q. And how soon before thediagnosis was that? A. That was 30days. We made it on October 1st. Q.And in your opinion, how long, as younow have the whole history and analysisand the diagnosis, how long had she hadthis glaucoma? A. I would think sheprobably had it ten years or longer. Q.Now, Doctor, there's been somereference to the matter of takingpressure checks of persons over 40.What is the incidence of glaucoma, thestatistics, with persons under 40? A. Inthe instance of glaucoma under the ageof 40, is less than 100 to one per cent.The younger you get, the less theincidence. It is thought to be in theneighborhood of one in 25,000 peopleor less. Q. How about the incidence ofglaucoma in people over 40? A.Incidence of glaucoma over 40 gets intothe two to three per cent category, andhence, that's where there is this great bigdifference and that's why the standardsaround the world has been to checkpressures from 40 on.The incidence of glaucoma in one out of25,000 persons under the age of 40 may appearquite minimal. However, that one person, theplaintiff in this instance, is entitled to the sameprotection, as afforded persons over 40, essentialfor timely detection of the evidence of glaucomawhere it can be arrested to avoid the grave anddevastating result of this disease. The test is asimple pressure test, relatively inexpensive. Thereis no judgment factor involved, and there is nodoubt that by giving the test the evidence ofglaucoma can be detected. The giving of the test isharmless if the physical condition of the eyepermits. The testimony indicates that although thecondition of the plaintiff's eyes might have attimes prevented the defendants fromadministering the pressure test, there is an absenceof evidence in the record that the test could nothave been timely given.Justice Holmes stated in Texas & Pac. Ry. v.Behymer, 189 U.S. 468, 470, 23 S. Ct. 622, 623,47 L. Ed. 905 (1903):What usually is done may beevidence of what ought to be done, butwhat ought to be done is fixed by astandard of reasonable prudence,whether it usually is complied with ornot.In The T.J. Hooper, 60 F.2d 737, on page 740(2d Cir. 1932), Justice Hand stated:[I]n most cases reasonable prudenceis in fact common prudence; but strictlyit is never its measure; a whole callingmay have unduly lagged in the adoptionof new and available devices. It nevermay set its own tests, howeverpersuasive be its usages. Courts must inthe end say what is required; there areprecautions so imperative that eventheir universal disregard will not excusetheir omission. (Italics ours.)Under the facts of this case reasonableprudence required the timely giving of thepressure test to this plaintiff. The precaution ofgiving this test to detect the incidence ofglaucoma to patients under 40 years of age is soimperative that irrespective of its disregard by thestandards of the ophthalmology profession, it isthe duty of the courts to say what is required toprotect patients under 40 from the damagingresults of glaucoma.We therefore hold, as a matter of law, that thereasonable standard that should have beenfollowed under the undisputed facts of this casewas the timely giving of this simple, harmlesspressure test to this plaintiff and that, in failing todo so, the defendants were negligent, whichproximately resulted in the blindness sustained bythe plaintiff for which the defendants are liable.There are no disputed facts to submit to thejury on the issue of the defendants' liability.HELLING V. CAREY

36 1. ESTABLISHING A BREACH OF DUTYHence, a discussion of the plaintiff's proposedinstructions would be inconsequential in view ofour disposition of the case.The judgment of the trial court and thedecision of the Court of Appeals is reversed, andthe case is remanded for a new trial on the issue ofdamages only.HALE, C.J., and ROSELLINI, STAFFORD,WRIGHT and BRACHTENBACH, JJ., concur.UTTER, Associate Justice (concurring)I concur in the result reached by the majority.I believe a greater duty of care could be imposedon the defendants than was established by theirprofession. The duty could be imposed when adisease, such as glaucoma, can be detected by asimple, well-known harmless test whose resultsare definitive and the disease can be successfullyarrested by early detection, but where the effectsof the disease are irreversible if undetected over asubstantial period of time.The difficulty with this approach is that we asjudges, by using a negligence analysis, seem to beimposing a stigma of moral blame upon thedoctors who, in this case, used all the precautionscommonly prescribed by their profession indiagnosis and treatment. Lacking their training inthis highly sophisticated profession, it seemsillogical for this court to say they failed toexercise a reasonable standard of care. It seems tome we are, in reality, imposing liability, because,in choosing between an innocent plaintiff and adoctor, who acted reasonably according to hisspecialty but who could have prevented the fulleffects of this disease by administering a simple,harmless test and treatment, the plaintiff shouldnot have to bear the risk of loss. As such,imposition of liability approaches that of strictliability.Strict liability or liability without fault is notnew to the law. Historically, it predates ourconcepts of fault or moral responsibility as a basisof the remedy. Wigmore, Responsibility forTortious Acts: Its History, 7 HAR. L. REV. 315,383, 441 (1894). As noted in W. PROSSER, THELAW OF TORTS § 74 (3d ed. 1964) at pages 507,508:There are many situations in whicha careful person is held liable for anentirely reasonable mistake.... [I]n somecases the defendant may be held liable,although he is not only charged with nomoral wrongdoing, but has not evendeparted in any way from a reasonablestandard of intent or care.... There is "astrong and growing tendency, wherethere is blame on neither side, to ask, inview of the exigencies of social justice,who can best bear the loss and hence toshift the loss by creating liability wherethere has been no fault." (Footnoteomitted.)Tort law has continually been in a state offlux. It is "not always neat and orderly. But this isnot to say it is illogical. Its central logic is thelogic that moves from premises - its objectives -that are only partly consistent, to conclusions - itsrules - that serve each objective as well as may bewhile serving others too. It is the logic ofmaximizing service and minimizing disservice tomultiple objectives." Keeton, Is There a Place forNegligence in Modern Tort Law?, 53 VA. L. REV.886, 897 (1967).When types of problems rather than numbersof cases are examined, strict liability is appliedmore often than negligence as a principle whichdetermines liability. Peck, Negligence andLiability Without Fault in Tort Law, 46 WASH. L.REV. 225, 239 (1971). There are many similaritiesin this case to other cases of strict liability.Problems of proof have been a common feature insituations where strict liability is applied. Whereevents are not matters of common experience, ajuror's ability to comprehend whether reasonablecare has been followed diminishes. There are fewareas as difficult for jurors to intelligentlycomprehend as the intricate questions of proof andstandards in medical malpractice cases.In applying strict liability there are manysituations where it is imposed for conduct whichcan be defined with sufficient precision to insurethat application of a strict liability principle willnot produce miscarriages of justice in a substantialnumber of cases. If the activity involved is onewhich can be defined with sufficient precision,that definition can serve as an accounting unit towhich the costs of the activity may be allocatedwith some certainty and precision. With thispossible, strict liability serves a compensatoryfunction in situations where the defendant is,through the use of insurance, the financially moreresponsible person. Peck, Negligence andLiability Without Fault in Tort Law, supra at 240,241.If the standard of a reasonably prudentspecialist is, in fact, inadequate to offer reasonableprotection to the plaintiff, then liability can beimposed without fault. To do so under the narrowfacts of this case does not offend my sense ofjustice. The pressure test to measure intraocularpressure with the Schiotz tonometer and theHELLING V. CAREY

§ B. STRICT LIABILITY 37Goldman applanometer takes a short time,involves no damage to the patient, and consists ofplacing the instrument against the eyeball. Anabnormally high pressure requires other testswhich would either confirm or deny the existenceof glaucoma. It is generally believed that from 5to 10 years of detectable increased pressure mustexist before there is permanent damage to theoptic nerves.Although the incidence of glaucoma in theage range of the plaintiff is approximately one in25,000, this alone should not be enough to denyher a claim. Where its presence can be detected bya simple, well known harmless test, where theresults of the test are definitive, where the diseasecan be successfully arrested by early detection andwhere its effects are irreversible if undetectedover a substantial period of time, liability shouldbe imposed upon defendants even though they didnot violate the standard existing within theprofession of ophthalmology.The failure of plaintiff to raise this theory atthe trial and to propose instructions consistentwith it should not deprive her of the right toresolve the case on this theory on appeal. Wherethis court has authoritatively stated the law, theparties are bound by those principles until theyhave been overruled. Acceptance of thoseprinciples at trial does not constitute a waiver orestop appellants from adapting their cause onappeal to such a rule as might be declared if theearlier precedent is overruled. Samuelson v.Freeman, 75 Wash. 2d 894, 900, 454 P.2d 406(1969).FINLEY and HAMILTON, JJ., concur.Questions and Notes1. Was the majority opinion based upon anapplication of strict liability or negligence? Whatabout the concurring opinion?2. The Washington Legislature enacted astatute in 1975 that provided that a plaintiff in amedical malpractice action would have to "proveby a preponderance of the evidence that thedefendant or defendants failed to exercise thatdegree of skill, care, and learning possessed at thattime by other persons in the same profession, andthat as a proximate result of such failure theplaintiff suffered damages . . .." Nonetheless, inGates v. Jensen, 92 Wash.2d 246 (1979), theWashington Supreme Court again held a physiciannegligent for failing to give a pressure test to aglaucoma patient.3. In Spano v. Perini, 25 N.Y.2d 11, 302N.Y.S.2d 527, 250 N.E.2d 31 (1969), the NewYork Court of Appeals considered a case in whicha garage owner's property was damaged byblasting conducted nearby in tunnel construction.The leading New York case, Booth v. Rome, W.&O.T.R. Co., 140 N.Y. 267, 35 N.E. 592 (1893) hadpermitted the imposition of strict liability inblasting cases only where there was a physicalinvasion of the property (e.g., by flying debris),reasoning that (1) construction was a valuableactivity, and (2) to declare a landowner's right tobe free from the results of blasting would in effectdeclare blasting unlawful. "This sacrifice, wethink, the law does not exact. Public policy issustained by the building up of towns and citiesand the improvement of property. Anyunnecessary restraint on freedom of action of aproperty owner hinders this." Booth, 35 N.E. at596. However, in Spano the court overruled thisprecedent, stating:This rationale cannot withstandanalysis. The plaintiff in Booth was notseeking, as the court implied, to"exclude the defendant from blasting"and thus prevent desirableimprovements to the latter's property.Rather, he was merely seekingcompensation for the damage whichwas inflicted upon his own property as aresult of that blasting. The question, inother words, was not whether it waslawful or proper to engage in blastingbut who should bear the cost of anyresulting damage - the person whoengaged in the dangerous activity or theinnocent neighbor injured thereby.Viewed in such a light, it clearly appearsthat Booth was wrongly decided andshould be forthrightly overruled. (250N.E.2d at 34).Is this the right question to ask in decidingwhether to impose strict liability?4. There is a continuing fascination with "nofault"schemes for medical malpractice. For arecent review, see Bovbjerg, Randall R. and FrankA. Sloan, No-fault for Medical Injury: Theoryand Evidence. 67 U. Cin. L. Rev. 53 (1998). Seealso infra, Chapter Ten, Professional Negligence.HELLING V. CAREY

38 1. ESTABLISHING A BREACH OF DUTY2. When Is Strict Liability Imposed?Introductory Note. Just as we had todistinguish between identifying the standard fornegligence (reasonable care) and the means bywhich it can be identified (negligence per se, resipsa, etc.), so we now must shift from anunderstanding of what strict liability is to aconsideration of the circumstances in which strictliability will be imposed upon the defendant.Remember that unless the plaintiff establishes theexistence of facts that bring the case into one ofthe categories qualifying for strict liability, thea. Abnormally Dangerous ActivitiesSIEGLER v. KUHLMAN81 Wash. 2d 448, 502 P.2d 1181 (1973HALE, Associate JusticeSeventeen-year-old Carol J. House died in theflames of a gasoline explosion when her carencountered a pool of thousands of gallons ofspilled gasoline. She was driving home from herafter-school job in the early evening of November22, 1967, along Capitol Lake Drive in Olympia; itwas dark but dry; her car's headlamps wereburning. There was a slight impact with someobject, a muffled explosion, and then searingflames from gasoline pouring out of an overturnedtrailer tank engulfed her car. The result of theexplosion is clear, but the real causes of whathappened will remain something of an eternalmystery.* * *The jury apparently found that defendants hadmet and overcome the charges of negligence.Defendants presented proof that both the truck,manufactured by Peterbilt, a division of PacificCar and Foundry Company, and the tank andtrailer, built by Fruehauf Company, had beenconstructed by experienced companies, and thatthe fifth wheel, connecting the two units and builtby Silver Eagle Company, was the type ofconnecting unit used by 95 percent of thetruck-trailer units. Defendants presented evidencethat a most careful inspection would not haverevealed the defects or fatigue in the metalconnections between truck and trailer; that theplaintiff will be required to prove negligence inorder to recover. We have already seen theimposition of strict liability in Bierman, althoughthat case is unique because of its use of the smallclaims court standard ("substantial justice")instead of tort doctrine as such. In general, it canbe said that strict liability cases represent smallislands within the larger sea of cases governed bythe negligence standard. As you read thesubsequent cases, see if you can find a commonthread connecting the cases in which strictliability is imposed.trailer would not collapse unless both mainsprings failed; there was evidence that, when fullyloaded, the tank could not touch the wheels of thetank trailer without breaking the springs becausethe maximum flexion of the springs was less than1 inch. Defendants presented evidence that thedrawbar was secure and firmly attached; that thetanks were built of aluminum to prevent sparks;and that, when fully loaded with 4,800 gallons ofcargo, there would be 2 or 3 inches of spacebetween the cargo and top of the tank; that twosafety cables connected the two units; that thetruck and trailer were regularly serviced andrepaired, and records of this preserved and put inevidence; that the unit had been subject toInterstate Commerce Commission spot checks andconformed to ICC standards; and that, at the timeof the accident, the unit had traveled less thanone- third of the average service life of that kindof unit. There was evidence obtained at the site ofthe fire that both of the mainsprings above thetank trailer's front wheels had broken as a result ofstress, not fatigue - from a kind of stress thatcould not be predicated by inspection - and finallythat there was no negligence on the driver's part.Defendants also presented some evidence ofcontributory negligence on the basis that CarolHouse, driving on a 35-mile-per-hour road, passedanother vehicle at about 45 miles per hour andalthough she slacked speed somewhat before theexplosion, she was traveling at the time of theimpact in excess of the 35-mile-per-hour limit.The trial court submitted both contributorynegligence and negligence to the jury, declared themaximum speed limit on Capitol Lake Drive to be35 miles per hour, and told the jury that, althoughviolation of a positive statute is negligence as amatter of law, it would not engender liabilityunless the violation proximately contributed to theinjury. From a judgment entered upon a verdictHELLING V. CAREY

§ B. STRICT LIABILITY 39for defendants, plaintiff appealed to the Court ofAppeals which affirmed. 3 Wash. App. 231, 473P.2d 445 (1970). We granted review (78 Wash. 2d991 (1970)), and reverse.* * *Strict liability is not a novel concept; it is atleast as old as Fletcher v. Rylands, L.R. 1 Ex. 265,278 (1866), affirmed, House of Lords, 3 H.L. 330(1868). In that famous case, where waterimpounded in a reservoir on defendant's propertyescaped and damaged neighboring coal mines, thelandowner who had impounded the water washeld liable without proof of fault or negligence.Acknowledging a distinction between the naturaland nonnatural use of land, and holding themaintenance of a reservoir to be a nonnatural use,the Court of Exchequer Chamber imposed a ruleof strict liability on the landowner. The ratiodecidendi included adoption of what is now calledstrict liability, and at page 278 announced, wethink, principles which should be applied in theinstant case:[T]he person who for his ownpurposes brings on his lands andcollects and keeps there anything likelyto do mischief if it escapes, must keep itin at his peril, and, if he does not do so,is prima facie answerable for all thedamage which is the naturalconsequence of its escape.All of the Justices in Fletcher v. Rylands,supra, did not draw a distinction between thenatural and nonnatural use of land, but such adistinction would, we think, be irrelevant to thetransportation of gasoline. The basic principlessupporting the Fletcher doctrine, we think, controlthe transportation of gasoline as freight along thepublic highways the same as it does theimpounding of waters and for largely the samereasons. See PROSSER, TORTS, § 78 (4th ed. 1971).In many respects, hauling gasoline as freightis no more unusual, but more dangerous, thancollecting water. When gasoline is carried ascargo - as distinguished from fuel for the carriervehicle - it takes on uniquely hazardouscharacteristics, as does water impounded in largequantities. Dangerous in itself, gasoline developseven greater potential for harm when carried asfreight - extraordinary dangers deriving fromsheer quantity, bulk and weight, whichenormously multiply its hazardous properties.And the very hazards inhering from the size of theload, its bulk or quantity and its movement alongthe highways presents another reason forapplication of the Fletcher v. Rylands, supra, rulenot present in the impounding of large quantitiesof water - the likely destruction of cogentevidence from which negligence or want of it maybe proved or disproved. It is quite probable thatthe most important ingredients of proof will belost in a gasoline explosion and fire. Gasoline isalways dangerous whether kept in large or smallquantities because of its volatility, inflammabilityand explosiveness. But when several thousandgallons of it are allowed to spill across a publichighway - that is, if, while in transit as freight, itis not kept impounded - the hazards to thirdpersons are so great as to be almost beyondcalculation. As a consequence of its escape fromimpoundment and subsequent explosion andignition, the evidence in a very high percentage ofinstances will be destroyed, and the reasons forand causes contributing to its escape will quitelikely be lost in the searing flames and explosions.That this is a sound case for the imposition ofa rule of strict liability finds strong support inProfessor Cornelius J. Peck's analysis inNegligence and Liability Without Fault in TortLaw, 46 WASH. L. REV. 225 (1971). Pointing outthat strict liability was imposed at common lawprior to Fletcher v. Rylands, supra, that studyshows the application of a rule of strict liability ina number of instances, i.e., for harm done bytrespassing animals; on a bona fide purchaser ofstolen goods to their true owner; on a bailee forthe misdelivery of bailed property regardless ofhis good faith or negligence; and on innkeepersand hotels at common law. But there are otherexamples of strict liability: The Supreme Court ofMinnesota, for example, imposed liability withoutfault for damage to a dock inflicted by a shipmoored there during a storm. Vincent v. Lake ErieTransp. Co., 109 Minn. 456, 124 N.W. 221(1910).The rule of strict liability rests not only uponthe ultimate idea of rectifying a wrong and puttingthe burden where it should belong as a matter ofabstract justice, that is, upon the one of the twoinnocent parties whose acts instigated or made theharm possible, but it also rests on problems ofproof:One of these common features isthat the person harmed would encountera difficult problem of proof if someother standard of liability were applied.For example, the disasters caused bythose who engage in abnormallydangerous or extra-hazardous activitiesfrequently destroy all evidence of whatSIEGLER V. KUHLMAN

40 1. ESTABLISHING A BREACH OF DUTYin fact occurred, other than that theactivity was being carried on. Certainlythis is true with explosions of dynamite,large quantities of gasoline, or otherexplosives. It frequently is the case withfalling aircraft. Tracing the coursefollowed by gases or other poisons usedby exterminators may be difficult if notimpossible. The explosion of an atomicreactor may leave little evidence of thecircumstances which caused it.Moreover, application of such astandard of liability to activities whichare not matters of common experience iswell-adapted to a jury's limited ability tojudge whether proper precautions wereobserved with such activities.Problems of proof which mightotherwise have been faced by shippers,bailors, or guests at hotels and innscertainly played a significant role inshaping the strict liabilities of carriers,bailees, and innkeepers. Problems ofproof in suits against manufacturers forharm done by defective productsbecame more severe as the compositionand design of products and thetechniques of manufacture became lessand less matters of common experience;this was certainly a factor bringingabout adoption of a strict liabilitystandard. (Footnote omitted.) C. Peck,Negligence and Liability Without Faultin Tort Law, 46 WASH. L. REV. 225, 240(1971).See, also, G.P. Fletcher, Fairness and Utilityin Tort Theory, 85 Harv. L. Rev. 537 (1972), foran analysis of the judicial philosophy relating totort liability as affecting or affected by concepts offault and negligence; and Comment, LiabilityWithout Fault: Logic and Potential of aDeveloping Concept, 1970 WIS. L. REV. 1201.Thus, the reasons for applying a rule of strictliability obtain in this case. We have a situationwhere a highly flammable, volatile and explosivesubstance is being carried at a comparatively highrate of speed, in great and dangerous quantities ascargo upon the public highways, subject to all ofthe hazards of high-speed traffic, multiplied by thegreat dangers inherent in the volatile andexplosive nature of the substance, and multipliedagain by the quantity and size of the load. Thenwe have the added dangers of ignition andexplosion generated when a load of this size, thatis, about 5,000 gallons of gasoline, breaks itscontainer and, cascading from it, spreads over thehighway so as to release an invisible but highlyvolatile and explosive vapor above it.Danger from great quantities of gasolinespilled upon the public highway is extreme andextraordinary, for any spark, flame or appreciableheat is likely to ignite it. The incandescentfilaments from a broken automobile headlight, aspark from the heat of a tailpipe, a lightedcigarette in the hands of a driver or passenger, thehot coals from a smoker's pipe or cigar, and themany hot and sparking spots and units of anautomobile motor from exhaust to generator couldreadily ignite the vapor cloud gathered above ahighway from 5,000 gallons of spilled gasoline.Any automobile passing through the vapors couldreadily have produced the flames and explosionswhich killed the young woman in this case andwithout the provable intervening negligence ofthose who loaded and serviced the carrier and thedriver who operated it. Even the most prudent andcareful motorist, coming unexpectedly andwithout warning upon this gasoline pool andvapor, could have driven into it and ignited aholocaust without knowledge of the danger andwithout leaving a trace of what happened to setoff the explosion and light the searing flames.Stored in commercial quantities, gasoline hasbeen recognized to be a substance of suchdangerous characteristics that it invites a rule ofstrict liability - even where the hazard iscontamination to underground water supply andnot its more dangerous properties such as itsexplosiveness and flammability. See Yommer v.McKenzie, 255 Md. 220, 257 A.2d 138 (1969). Itis even more appropriate, therefore, to apply thisprinciple to the more highly hazardous act oftransporting it as freight upon the freeways andpublic thoroughfares.Recently this court, while declining to applystrict liability in a particular case, didacknowledge the suitability of the rule in a propercase. In Pacific Northwest Bell Tel. Co. v. Port ofSeattle, 80 Wash. 2d 59, 491 P.2d 1037 (1971), weobserved that strict liability had its beginning inFletcher v. Rylands, supra, but said that it oughtnot be applied in a situation where a burstingwater main, installed and maintained by thedefendant Port of Seattle, damaged plaintifftelephone company's underground wires. Therethe court divided - not on the basic justice of arule of strict liability in some cases - but in itsapplication in a particular case to what on its facewas a situation of comparatively minor hazards.Both majority and dissenting justices held,however, that the strict liability principles ofSIEGLER V. KUHLMAN

§ B. STRICT LIABILITY 41Fletcher v. Rylands, supra, should be given effectin some cases; but the court divided on thequestion of whether underground water mainsthere constituted such a case.The rule of strict liability, when applied to anabnormally dangerous activity, as stated in theRESTATEMENT (SECOND) OF TORTS § 519 (Tent.Draft No. 10, 1964), was adopted as the rule ofdecision in this state in Pacific Northwest Bell Tel.Co. v. Port of Seattle, supra, at 64, 491 P.2d, at1039, 1040, as follows:(1) One who carries on anabnormally dangerous activity is subjectto liability for harm to the person, landor chattels of another resulting from theactivity, although he has exercised theutmost care to prevent such harm.(2) Such strict liability is limited tothe kind of harm, the risk of whichmakes the activity abnormallydangerous.As to what constitutes an abnormal activity, §520 states:In determining whether an activityis abnormally dangerous, the followingfactors are to be considered:(a) Whether the activity involves ahigh degree of risk of some harm to theperson, land or chattels of others;(b) Whether the gravity of the harmwhich may result from it is likely to begreat;(c) Whether the risk cannot beeliminated by the exercise of reasonablecare;(d) Whether the activity is not amatter of common usage;(e) Whether the activity isinappropriate to the place where it iscarried on; and(f) The value of the activity to thecommunity.[The Siegler court continued its quotationfrom Pacific Northwest Bell:]Applying these factors to thissystem, we do not find the activity to beabnormally dangerous. There has neverbeen a break in the system before,absent an earthquake, and the pipe couldhave been expected to last many moreyears. It is a system commonly used forfire protection, and its placement underground is, of course, appropriate. We donot find § 519 of the RESTATEMENT,(Tent. Draft No. 10, 1964), or Rylands v.Fletcher, supra, applicable.It should be noted from the above languagethat we rejected the application of strict liability inPacific Northwest Bell Tel. Co. v. Port of Seattle,supra, solely because the installation ofunderground water mains by a municipality wasnot, under the circumstances shown, anabnormally dangerous activity. Had the activitybeen found abnormally dangerous, this courtwould have applied in that case the rule of strictliability.Contrast, however, the quiet, relatively safe,routine procedure of installing and maintainingand using underground water mains as describedin Pacific Northwest Bell v. Port of Seattle, supra,with the activity of carrying gasoline as freight inquantities of thousands of gallons at freewayspeeds along the public highway and even atlawful lesser speeds through cities and towns andon secondary roads in rural districts. In comparingthe quiescence and passive job of maintainingunderground water mains with the extremelyheightened activity of carrying nearly 5,000gallons of gasoline by truck, one cannot escapethe conclusion that hauling gasoline as cargo isundeniably an abnormally dangerous activity andon its face possesses all of the factors necessaryfor imposition of strict liability as set forth in theRESTATEMENT (SECOND) OF TORTS § 519 (Tent.Draft No. 10, 1964), above.Transporting gasoline as freight by truckalong the public highways and streets is obviouslyan activity involving a high degree of risk; it is arisk of great harm and injury; it creates dangersthat cannot be eliminated by the exercise ofreasonable care. That gasoline cannot bepracticably transported except upon the publichighways does not decrease the abnormally highrisk arising from its transportation. Nor will theexercise of due and reasonable care assureprotection to the public from the disastrousconsequences of concealed or latent mechanical ormetallurgical defects in the carrier's equipment,from the negligence of third parties, from latentdefects in the highways and streets, and from allof the other hazards not generally disclosed orguarded against by reasonable care, prudence andforesight. Hauling gasoline in great quantities asfreight, we think, is an activity that calls for theSIEGLER V. KUHLMAN

42 1. ESTABLISHING A BREACH OF DUTYapplication of principles of strict liability.The case is therefore reversed and remandedto the trial court for trial to the jury on the soleissue of damages.HAMILTON, C.J., FINLEY, ROSELLINI,and HUNTER, JJ., and RYAN, J., pro tem.,concur.ROSELLINI, Associate Justice (concurring)I agree with the majority that the transportingof highly volatile and flammable substances uponthe public highways in commercial quantities andfor commercial purposes is an activity whichcarries with it such a great risk of harm todefenseless users of the highway, if it is not keptcontained, that the common-law principles ofstrict liability should apply. In my opinion, a goodreason to apply these principles, which is notmentioned in the majority opinion, is that thecommercial transporter can spread the loss amonghis customers - who benefit from thisextrahazardous use of the highways. Also, if thedefect which caused the substance to escape wasone of manufacture, the owner is in the bestposition to hold the manufacturer to account.I think the opinion should make clear,however, that the owner of the vehicle will beheld strictly liable only for damages caused whenthe flammable or explosive substance is allowedto escape without the apparent intervention of anyoutside force beyond the control of themanufacturer, the owner, or the operator of thevehicle hauling it. I do not think the majoritymeans to suggest that if another vehicle,negligently driven, collided with the truck inquestion, the truck owner would be held liable forthe damage. But where, as here, there was nooutside force which caused the trailer to becomedetached from the truck, the rule of strict liabilityshould apply.It also is my opinion that the legislature hasexpressed an intent that owners and operators ofvehicles carrying trailers should be required tokeep them under control, and that intent can befound in the statutes cited in the majority opinion.Thus the application of the common-lawprinciples of strict liability is in accord with themanifest legislative view of the matter.It also should be remarked, I think, that therewas in this case no evidence that the allegednegligence of the deceased, in driving faster thanthe posted speed, was in any sense a proximatecause of the tragedy which befell her. There wasno showing that, had she been proceeding at thelegal rate of speed, she could have stopped hervehicle in time to avoid being enveloped in theflames or that the gasoline would not have ignited.Thus we are not confronted in this case with aquestion whether contributory negligence mightunder some circumstances be a defense to anaction of this kind. It should be understood thatthe court does not pass upon that question at thistime.HAMILTON, C.J., FINLEY, J., and RYAN,J., pro tem., concur.NEILL, Associate Justice (dissenting)The application of the doctrine of strictliability to the facts of this case is warranted, atleast as the applicability is qualified by theconcurring opinion of Justice Rosellini. However,to decide this case on that theory violates ourestablished rules of appellate review. NationalIndemnity Co. v. Smith-Gandy, Inc., 50 Wash. 2d124, 309 P.2d 742 (1957); State v. McDonald, 74Wash. 2d 474, 445 P.2d 345 (1968).Plaintiff seeks money redress for the death ofan exemplary young woman whose life washorribly terminated in a tragic accident. A juryabsolved the defendants from culpability.Irrespective of our sympathy, that jury verdictmust stand unless error was committed at the trial.On appeal, the Court of Appeals affirmed theverdict and judgment. Siegler v. Kuhlman, 3Wash. App. 231, 473 P.2d 445 (1970). We grantedreview. 78 Wn. 2d 991 (1970). The only issuebrought to this court by the appeal is theprocedural effect of res ipsa loquitur....I would affirm the trial court and the Court ofAppeals.STAFFORD, J., concurs.Questions and Notes1. In New Meadows Holding Co. v.Washington Water Power Co., 102 Wash. 2d 495,687 P.2d 212 (1984), natural gas leaked from apipeline, allegedly as the result of negligence by atelephone company employee. The ground abovethe pipeline was frozen, and so the gas found itsway into the plaintiff's house, where it exploded.When the plaintiff sued, should the court haveimposed strict liability upon the gas company fordamage caused by the explosion?2. In Crosby v. Cox Aircraft Co. ofWashington, 109 Wash. 2d 581, 746 P.2d 1198(1987), the defendant's airplane crashed into theplaintiff's house. Based upon Siegler, would theSIEGLER V. KUHLMAN

§ B. STRICT LIABILITY 43plaintiff be required to establish negligence, ordoes strict liability apply? See also RESTATEMENT(SECOND) OF TORTS (1977) § 520A.3. Apparently the theory of strict liability wasnot argued on appeal by the plaintiff; the plaintiffrelied upon the doctrine of res ipsa loquitur. Doyou think that doctrine would have provided arecovery in this case?4. In an article cited in the case, ProfessorGeorge Fletcher suggested that strict liability isappropriate where the defendant's activity imposesa "non-reciprocal risk" upon the plaintiff. Fletcher,Fairness and Utility in Tort Theory, 85 Harv. L.Rev. 537 (1972). Do you agree? Is the concept of"non-reciprocal risk" a useful one fordistinguishing cases that should be governed bythe negligence standard from those in which strictliability can be imposed?5. Suppose D is driving his car at a lawfulspeed through a residential area. P, a three-yearoldchild, runs out into the street to chase a ball; Dis unable to stop in time and P is struck by the car,suffering serious injuries. Must P prove that Dwas negligent in order to recover? Or should D besubject to strict liability? Explain your reasoning.6. The treatment of contributory negligenceon the part of the plaintiff is in a state of flux. TheRESTATEMENT (2D) OF TORTS originally providedthat contributory negligence is not a defense to aclaim based on strict liability for abnormallydangerous activities. § 524(1). This may havebeen a result of the contributory negligence rule,which in many jurisdictions barred the plaintiff'sclaim if he was in any way at fault. Now that thecomparative negligence principle has replaced theabsolute bar with a percentage reduction inproportion to fault, the rationale for § 524(1) nolonger applies. Most jurisdictions now usecomparative fault to allow a percentage reductionif the plaintiff is found to be at fault. This issue istaken up in more detail in Chapter Five, infra.7. Recent statutes have imposed whatamounts to strict liability on the generators ofhazardous wastes, and the owners of propertywhere those wastes are disposed. One estimateputs the cost of cleaning up existing hazardouswaste sites at $100 billion. Pollution andContamination Losses: Insurance Claims UnderProperty and Liability Policies, DEFENSERESEARCH INSTITUTE (Goldstein, ed., 1988). InKenney v. Scientific, Inc., 204 N.J. Super. 228, 497A.2d 1310 (1985), it was held that both theoperator of the waste dump and those responsiblefor generating the wastes would be strictly liableunder New Jersey law for any damages suchwastes caused when loosed on the environment:"A company which creates the Frankensteinmonster of abnormally dangerous waste shouldnot expect to be relieved of accountability ...merely because the company entrusts themonster's care to another...." 497 A.2d at 1320-21.In Kenney, some 625 defendants were alleged tohave generated toxic materials which found theirway to the dump. Because of the enormousamount of money at stake, there is an abundanceof literature on this subject. See Note,Developments in the Law: Toxic WasteLegislation, 99 Harv. L. Rev. 1458 (1986).8. The determination of what is an abnormallydangerous activity is made by the judge, not thejury, since the ruling applies to that activity as awhole, not just the facts of a particular case. SeeKlein v. Pyrodyne Corp., 117 Wash. 2d 1, 810 P.2d917 (1991).b. Invasion of Property Rights -NuisanceFLETCHER v. RYLANDSCourt of Exchequer, 1865, 34 L.J. Rep., N.S.177MARTIN, B.The circumstances of this case raise twoquestions. First, assuming the plaintiff anddefendants to be the owners of two adjoiningcloses [parcels] of land, and at some time or otherbeyond living memory coal had been workedunder both closes and that the workings under theclose of the defendants communicated with theworkings under the close of the plaintiff, but ofthe existence of such workings both plaintiff anddefendants were ignorant, and that the defendants,without any negligence or default whatever, madea reservoir upon their own land for the purpose ofcollecting water to supply a manufactory, and thatthe water escaped from an old shaft at the bottomof the reservoir into the old workings below thedefendants' close, and thence into the plaintiff'sSIEGLER V. KUHLMAN

44 1. ESTABLISHING A BREACH OF DUTYclose, and did damage there, are the defendantsresponsible?The second question is, assuming thedefendants not to be responsible upon the abovestate of facts, does it make any difference that thedefendants employed a competent engineer andcompetent contractors who were ignorant of theexistence of the old workings, and who selectedthe site of the reservoir and planned andconstructed it, and on the part of defendantsthemselves there was no personal negligence ordefault whatever, but in point of fact reasonableand proper care and skill were not exercised byand on behalf of the persons so employed withreference to the old shafts found at the bottom ofthe reservoir, to provide for the sufficiency of thereservoir to bear the pressure of the water, which,when filled to the height proposed, it would haveto bear.* * *First, I think there was no trespass. In thejudgment of my brother Bramwell, to which Ishall hereafter refer, he seems to think the act ofthe defendants was a trespass, but I cannot concur,and I own it seems to me that the cases cited byhim, viz., Leame v. Bray (3 East, 593) andGregory v. Piper (9 B.& C. 591) prove thecontrary. I think the true criterion of trespass islaid down in the judgments in the former case,that to constitute trespass the act doing thedamage must be immediate, and that if thedamage be mediate or consequential (which Ithink the present was), it is not a trespass.Secondly, I think there was no nuisance in theordinary and generally understood meaning ofthat word, that is to say, something hurtful orinjurious to the senses. The making a pond forholding water is a nuisance to no one. The digginga reservoir in a man's own land is a lawful act. Itdoes not appear that there was any embankment,or that the water in the reservoir was ever abovethe level of the natural surface of the land, and thewater escaped from the bottom of the reservoir,and in ordinary course would descend bygravitation into the defendants' own land, and theydid not know of the existence of the old workings.To hold the defendants liable would thereforemake them insurers against the consequence of alawful act upon their own land when they had noreason to believe or suspect that any damage waslikely to ensue.[The second question was also answered inthe negative; Baron Martin found that there wasno reason to suspect any danger, and thereforefound no negligence. - ed.]BRAMWELL, B.* * *I agree with Mr. Mellish, that the case issingularly wanting in authority, and, therefore,while it is always desirable to ascertain theprinciple on which a case depends, it is especiallyso here.Now, what is the plaintiff's right? He had theright to work his mines to their extent, leaving noboundary between himself and the next owner. Byso doing, he subjected himself to all consequencesresulting from natural causes; among others, tothe influx of all water naturally flowing in; but hehad a right to be free from what has been calledforeign water - that is, water artificially brought orsent to him directly, or indirectly by its being sentto where it would flow to him. * * *I proceed to deal with the arguments the otherway. It is said, there must be a trespass ornuisance with negligence. I do not agree with that,and I think Bonomi v. Blackhouse, 9 H.L. Cas.903; s.c. 27 LAW J. REP., N.S., Q.B. 378, and ante,Q.B. 181, shows the contrary. But why is not thisa trespass? - see Gregory v. Piper, 9 B.& C. 591.Wilfulness is not material - see Leame v. Bray, 3East, 593. Why is it not a nuisance? The nuisanceis not in the reservoir, but in the water escaping.As in Bonomi v. Blackhouse, 9 H.L. Cas. 903; s.c.27 LAW J. REP., N.S., Q.B. 378, and ante, Q.B.181, the act was lawful, the mischievousconsequence was a wrong. Where two carriagescome in collision, if there is no negligence ineither, it is as much the act of the one driver as ofthe other that they meet. The cases of carriers andinnkeepers are really cases of contract, and,though exceptional, furnish no evidence that thegeneral law, in cases wholly independent ofcontract, is not what I have stated. The oldcommon law liability for fire created a liabilitybeyond what I contend for here.I think, therefore, on the plain ground that thedefendants have caused water to flow into theplaintiff's mines, which, but for the defendants'act, would not have gone there, this action ismaintainable. I think that the defendants'innocence, whatever may be its moral bearing onthe case, is immaterial in point of law. But I mayas well add, that if the defendants did not knowwhat would happen, their agents knew that therewere old shafts on their land; knew, therefore, thatthey must lead to old workings; knew that thoseold workings might extend in any direction, and,consequently, knew damage might happen. Thedefendants surely are as liable as their agentsFLETCHER V. RYLANDS

§ B. STRICT LIABILITY 45would be. Why should not both be held to act attheir peril? But I own, this seems to me, rather toenforce the rule, that knowledge and wilfulnessare not necessary to make the defendant liable,than to give the plaintiff a separate ground ofaction. My judgment is for the plaintiff.[POLLOCK, C.B., voted with MARTIN, B.]FLETCHER v. RYLANDSL.R. 1 Ex. 265 (1866)May 14, 1866. BLACKBURN, J., read thefollowing judgment of the courtThis was a Special Case stated by anarbitrator under an order of nisi prius, in whichthe question for the court is stated to be whetherthe plaintiff is entitled to recover any, and, if any,what, damages from the defendants by reason ofthe matters thereinbefore stated. In the Court ofExchequer, POLLOCK, C.B., and MARTIN, B.,were of opinion that the plaintiff was not entitledto recover at all, BRAMWELL, B., being of adifferent opinion. The judgment in the Court ofExchequer was, consequently, given for thedefendants in conformity with the opinion of themajority of the court. The only question arguedbefore us was whether this judgment was right,nothing being said about the measure of damagesin case the plaintiff should be held entitled torecover.We have come to the conclusion that theopinion of BRAMWELL, B., was right, and thatthe answer to the question should be that theplaintiff was entitled to recover damages from thedefendants by reason of the matters stated in theCase, and consequently that the judgment belowshould be reversed; but we cannot, at present, sayto what damages the plaintiff is entitled. It appearsfrom the statement in the Case, that the plaintiffwas damaged by his property being flooded bywater which, without any fault on his part, brokeout of a reservoir constructed on the defendants'land by the defendants' orders and maintained bythe defendants. It appears from the statement inthe Case, that the coal under the defendants' landhad, at some remote period, been worked out, butthat this was unknown at the time when thedefendants gave directions to erect the reservoir,and the water in the reservoir would not haveescaped from the defendants' land, and nomischief would have been done to the plaintiff,but for this latent defect in the defendants' subsoil.It further appears from the Case that thedefendants selected competent engineers andcontractors and make the reservoir, andthemselves personally continued in totalignorance of what we have called the latent defectin the subsoil, but that the persons employed bythem, in the course of the work, became aware ofthe existence of ancient shafts filled up with soil,though they did not know or suspect that theywere shafts communicating with old workings. Itis found that the defendants personally were freefrom all blame, but that in fact, proper care andskill was not used by the persons employed bythem to provide for the sufficiency of the reservoirwith reference to these shafts. The consequencewas, that the reservoir, when filled with water,burst into the shafts, the water flowed downthrough them into the old workings, and thenceinto the plaintiff's mine, and there did themischief. The plaintiff, though free from all blameon his part, must bear the loss, unless he canestablish that it was the consequence of somedefault for which the defendants are responsible.The question of law, therefore, arises: What isthe liability which the law casts upon a personwho like the defendants, lawfully brings on hisland something which, though harmless while itremains there, will naturally do mischief if itescape out of his land? It is agreed on all handsthat he must take care to keep in that which he hasbrought on the land, and keep it there in order thatit may not escape and damage his neighbour's, butthe question arises whether the duty which the lawcasts upon him under such circumstances is anabsolute duty to keep it in at his peril, or is, as themajority of the Court of Exchequer have thought,merely a duty to take all reasonable and prudentprecautions in order to keep it in, but no more. Ifthe first be the law, the person who has brought onhis land and kept there something dangerous, andfailed to keep it in, is responsible for all thenatural consequences of its escape. If the secondbe the limit of his duty, he would not beanswerable except on proof of negligence, andconsequently would not be answerable for escapearising from any latent defect which ordinaryprudence and skill could not detect. Supposing thesecond to be the correct view of the law, a furtherquestion arises subsidiary to the first, namely,whether the defendants are not so far identifiedwith the contractors whom they employed as to beresponsible for the consequences of their want ofskill in making the reservoir in fact insufficientFLETCHER V. RYLANDS

46 1. ESTABLISHING A BREACH OF DUTYwith reference to the old shafts, of the existence ofwhich they were aware, though they had notascertained where the shafts went to.We think that the true rule of law is that theperson who, for his own purposes, brings on hisland, and collects and keeps there anything likelyto do mischief if it escapes, must keep it in at hisperil, and, if he does not do so, he is prima facieanswerable for all the damages which is thenatural consequence of its escape. He can excusehimself by showing that the escape was owing tothe plaintiff's default, or, perhaps, that the escapewas the consequence of vis major, or the act ofGod; but, as nothing of this sort exists here, it isunnecessary to inquire what excuse would besufficient. The general rule, as above stated,seems on principle just. The person whose grassor corn is eaten down by the escaped cattle of hisneighbour, or whose mine is flooded by the waterfrom his neighbour's reservoir, or whose cellar isinvaded by the filth of his neighbour's privy, orwhose habitation is made unhealthy by the fumesand noisome vapours of his neighbour's alkaliworks, is damnified without any fault of his own;and it seems but reasonable and just that theneighbour who has brought something on his ownproperty which was not naturally there, harmlessto others so long as it is confined to his ownproperty, but which he knows will be mischievousif it gets on his neighbour's, should be obliged tomake good the damage which ensues if he doesnot succeed in confining it to his own property.But for his act in bringing it there no mischiefcould have accrued, and it seems but just that heshould at his peril keep it there, so that nomischief may accrue, or answer for the naturaland anticipated consequences. On authority this,we think, is established to be the law, whether thething so brought be beasts or water, or filth orstenches.The case that has most commonly occurred,and which is most frequently to be found in thebooks, is as to the obligation of the owner of cattlewhich he has brought on his land to prevent theirescaping and doing mischief. The law as to themseems to be perfectly settled from early times; theowner must keep them in at his peril, or he will beanswerable for the natural consequences of theirescape, that is, with regard to tame beasts, for thegrass they eat and trample upon, although nor forany injury to the person of others, for ourancestors have settled that it is not the generalnature of horses to kick or bulls to gore, but if theowner knows that the beast has has a viciouspropensity to attack man he will be answerable forthat too. As early as [1480] BRIAN, C.J., laysdown the doctrine in terms very much resemblingthose used by LORD HOLT in Tenant v. Goldwin,which will be referred to afterwards. It wastrespass with cattle. Plea: that the plaintiff's landadjoined a place where the defendant hadcommon; that the cattle strayed from the common,and the defendant drove them back as soon as hecould. It was held a bad plea. BRIAN, C.J., says:It behoves him to use his commonso that it shall do no hurt to anotherman, and if the land in which he hascommon be not inclosed, it behoves himto keep the beasts in the common, andout of the land of any other.He adds, when it was proposed to amend bypleading that they were driven out of the commonby dogs,that although that might give a rightof action against the master of the dogs,it was no defence to the action oftrespass by the person on whose landthe cattle went.In Cox v. Burbidge, WILLIAMS, J., says (13C.B.N.S. at p. 438):I apprehend the law to be perfectlyplain. If I am the owner of an animal inwhich, by law, the right of property canexist, I am bound to take care that itdoes not stray into the land of myneighbour, and I am liable for anytrespass it may commit, and for theordinary consequences of that trespass.Whether or not the escape of the animalis due to my negligence is altogetherimmaterial.So in May v. Burdett, the court, after anelaborate examination of the old precedents andauthorities, came to the conclusion that a personkeeping a mischievous animal is bound to keep itsecure at his peril. And in 1 HALE'S PLEAS OF THECROWN, p. 430, Lord Hale states that where onekeeps a beast knowing that its nature or habitswere such that the natural consequences of hisbeing loose is that he will harm men, the ownermust at his peril keep him up safe fromdoing hurt, for though he uses hisdiligence to keep him up, if he escapesand does harm, the owner is liable toanswer damages;though, as he proceeds to show, he will not beliable criminally without proof of want of care.No case has been found in which the questionRYLANDS V. FLETCHER

§ B. STRICT LIABILITY 47of the liability of noxious vapours escaping from aman's works by inevitable accident has beendiscussed, but the following case will illustrate it.Some years ago several actions were broughtagainst the occupiers of some alkali works ofLiverpool for the damage alleged to be caused bythe chlorine fumes of their works. The defendantsproved that they had, at great expense, erected acontrivance by which the fumes of chlorine werecondensed, and sold as muriatic acid, and theycalled a great body of scientific evidence to provethat this apparatus was so perfect that no fumespossibly could escape from the defendants'chimneys. On this evidence it was pressed uponthe juries that the plaintiff's damage must havebeen due to some of the numerous other chimneysin the neighbourhood. The juries, however, beingsatisfied that the mischief was occasioned bychlorine, drew the conclusion that it had escapedfrom the defendants' works somehow, and in eachcase found for the plaintiff. No attempt was madeto disturb these verdicts on the ground that thedefendants had taken every precaution whichprudence or skill could suggest to keep thosefumes in, and that they could not be responsibleunless negligence were shown, yet if the law be aslaid down by the majority of the Court ofExchequer it would have been a very obviousdefence. If it had been raised, the answer wouldprobably have been that the uniform course ofpleading in actions for such nuisances is to saythat the defendant caused the noisome vapours toarise on his premises and suffered them to comeon the plaintiff's without stating that there was anywant of care or skill on the defendant's part; andthat Tenant v. Goldwin showed that this wasfounded on the general rule of law he whose stuffit is must keep it so that it may not trespass. Thereis no difference in this respect between chlorineand water; both will, if they escape, do damage,the one by scorching and the other by drowning,and he who brings them on his land must at hisperil see that they do not escape and do thatmischief.* * *But it was further said by MARTIN, B., thatwhen damage is done to personal property, oreven to the person by collision, neither upon landor at sea, there must be negligence in the partydoing the damage to render him legallyresponsible. This is no doubt true, and this is notconfined to cases of collision, for there are manycases in which proof of negligence is essential, as,for instance, where an unruly horse gets on thefootpath of a public street and kills a passenger:Hammack v. White, or where a person in a dock isstruck by the falling of a bale of cotton which thedefendant's servants are lowering: Scott v. LondonDock Co. Many other similar cases may be found.But we think these cases distinguishable from thepresent. Traffic on the highways, whether by landor sea, cannot be conducted without exposingthose whose persons or property are near it tosome inevitable risk; and, that being so, those whogo on the highway, or have their property adjacentto it, may well be held to do so subject to theirtaking upon themselves the risk of injury fromthat inevitable danger, and persons who, by thelicense of the owners, pass near to warehouseswhere goods are being raised or lowered, certainlydo so subject to the inevitable risk of accident. Inneither case, therefore, can they recover withoutproof of want of care or skill occasioning theaccident; and it is believed that all the cases inwhich inevitable accident has been held an excusefor what prima facie was a trespass can beexplained on the same principle, namely, that thecircumstances were such as to show that theplaintiff had taken the risk upon himself. But thereis no ground for saying that the plaintiff here tookupon himself any risk arising from the uses towhich the defendants should choose to apply theirland. He neither knew what there might be, norcould he in any way control the defendants, orhinder their building what reservoirs they liked,and storing up in them what water they pleased,so long as the defendants succeeded in preventingthe water which they there brought frominterfering with the plaintiff's property.The view which we take of the first pointrenders it unnecessary to consider whether thedefendants would or would not be responsible forthe want of care and skill in the persons employedby them. We are of opinion that the plaintiff isentitled to recover, but as we have not heard anyargument as to the amount, we are not able to givejudgment for what damages. The parties probablywill empower their counsel to agree on theamount of damages; should they differ on theprinciple the case may be mentioned again.[The defendants appealed to the House ofLords. - ed.]RYLANDS V. FLETCHER

48 1. ESTABLISHING A BREACH OF DUTYRYLANDS v. FLETCHERL.R. 3 H.L. 330 (1868)LORD CAIRNS* * *The principles on which this case must bedetermined appear to me to be extremely simple.The defendants, treating them as the owners oroccupiers of the close on which the reservoir wasconstructed, might lawfully, have used that closefor any purpose for which it might, in the ordinarycourse of the enjoyment of land, be used, and if,in what I may term the natural user of that land,there had been any accumulation of water, eitheron the surface or underground, and if by theoperation of the laws of nature that accumulationof water had passed off into the close occupied bythe plaintiff, the plaintiff could not havecomplained that that result had taken place. If hehad desired to guard himself against it, it wouldhave lain on him to have done so by leaving or byinterposing some barrier between his close and theclose of the defendants in order to have preventedthat operation of the laws of nature.* * *LORD CRANWORTHApplying the principles of these decisions tothe case now before the House, I come withouthesitation to the conclusion that the judgment ofthe Exchequer Chamber was right. The plaintiffhad a right to work his coal through the lands ofMr. Whitehead and up to the old workings. Ifwater naturally rising in the defendants' land (wemay treat the land as the land of the defendants forthe purpose of this case) had by percolation foundits way down to the plaintiff's mine through theold workings and so had impeded his operations,that would not have afforded him any ground ofcomplaint. Even if all the old workings had beenmade by the defendants they would have done nomore than they were entitled to do, for, accordingto the principle acted on in Smith v. Kenrick, theperson working the mine under the close in whichthe reservoir was made had a right to win andcarry away all the coal without leaving any wallor barrier against Whitehead's land. But that is notthe real state of the case. The defendants, in orderto effect an object of their own, brought on totheir land, or on to land which for this purposemay be treated as being theirs, a largeaccumulated mass of water, and stored it up in areservoir. The consequence of this was damage tothe plaintiff, and for that damage, however,skilfully and carefully the accumulation wasmade, the defendants, according to the principlesand authorities to which I have adverted, werecertainly responsible. I concur, therefore, with mynoble and learned friend in thinking that thejudgment below must be affirmed, and that theremust be judgment for the defendant in error.Questions and Notes1. The defendant's actions in this case wereheld to be a trespass, a direct invasion of theplaintiff's person or property. Trespass is one ofthe ancient forms of action recognized at commonlaw, distinguished from trespass on the case, or anaction in case, which is an injury to the person orproperty of the plaintiff, but caused indirectly. Forexample, if the defendant negligently drove hiscart so that a log fell out and struck another cartdriver, breaking his arm, the plaintiff could sue fortrespass vis et armis (literally, "with force ofarms"), and proof of negligence was not required.However, if the defendant negligently allowed alog to fall out of his cart, and the plaintiff later hitthe log and broke his arm in the collision, theplaintiff could only sue for trespass on the case,and negligence usually had to be shown. SeeAppendix C. Nonetheless, in Fletcher v. Rylandsthe court clearly considered this action to be basedon trespass, rather than case.The RESTATEMENT (2D), TORTS, provides:§ 165. Liability for IntrusionsResulting from Reckless or NegligentConduct and Abnormally DangerousActivitiesOne who recklessly or negligently,or as a result of an abnormallydangerous activity, enters land in thepossession of another or causes a thingor third person so to enter is subject toliability to the possessor if, but only if,his presence or the presence of the thingor the third person upon the land causesharm to the land, to the possessor, or toa thing or a third person in whosesecurity the possessor has a legallyprotected interest.Is this more or less protective of a propertyowner's rights than the court's description ofliability in Fletcher?2. One of the court's arguments in favor ofRYLANDS V. FLETCHER

§ B. STRICT LIABILITY 49strict liability was the long history of strictliability for trespasses by animals, bothdomesticated and "wild." When a defendant'scattle escape and eat a neighbor's crops, liabilitywill be imposed regardless of fault. If a wildanimal escapes and mauls someone, strict liabilitywill be imposed. This is the modern rule. SeeRESTATEMENT (2D), TORTS, §§ 504-518. Note thatin both cases the liability is restricted to thatwhich makes the animal dangerous. On the otherhand, animals not known to be dangerous imposeonly the duty to use reasonable care. Id., § 518.Thus, the origin of the misunderstood "every doggets one bite" rule: So long as the animal is notknown to be ferocious, the owner is required onlyto use reasonable care. However, after the dog'sfirst bite, the owner is on notice of its ferocity, andis then subject to strict liability for subsequentbites. Is this a sensible rule?3. Students who enjoy A.P. Herbert will beamused by Haddock v. Thwale, or "What is aMotor-Car," found in UNCOMMON LAW 124-132.4. Not everyone is impressed with thewisdom of Fletcher v. Rylands: Frank C.Woodside, III et al., Why Absolute Liability underRylands V. Fletcher Is Absolutely Wrong, 29 U.Dayton L. Rev. 1 (2003).BOHAN v. PORT JERVIS GAS LIGHTCO.25 N.E. 246 (N.Y. 1890)[See dissenting opinion for facts. - ed.]BROWN, J.* * *It was claimed by the defendant, and the courtrefused a request to charge, "that unless the juryshould find that the works of the defendant weredefective, or that they were out of repair, or thatthe persons in charge of manufacturing gas atthose works were unskillful and incapable, theirverdict should be for the defendant;" and "that ifthe odors which affect the plaintiff are those thatare inseparable from the manufacture of gas withthe most approved apparatus, and with the utmostskill and care, and do not result from any defectsin the works, or from want of care in theirmanagement, the defendant is not liable." Anexception to this ruling raises the principalquestion discussed in the case. While every personhas exclusive dominion over his own property,and may subject it to such uses as will subservehis wishes and private interests, he is bound tohave respect and regard for his neighbor's rights.The maxim, "sic utere tuo ut alienum non laedas,"limits his powers. He must make a reasonable useof his property, and a reasonable use can never beconstrued to include those uses which producedestructive vapors and noxious smells, and thatresult in material injury to the property and to thecomfort of the existence of those who dwell in theneighborhood. The reports are filled with caseswhere this doctrine has been applied, and it maybe confidently asserted that no authority can beproduced holding that negligence is essential toestablish a cause of action for injuries of such acharacter. A reference to a few authorities willsustain this assertion. In Campbell v. Seaman,supra, there was no allegation of negligence in thecomplaint, and there was an allegation of due carein the answer. There was no finding of negligence,and this court affirmed a recovery. In Heeg v.Licht, 80 N.Y. 579, an action for injuries arisingfrom the explosion of fire-works, the trial courtcharged the jury that they must find for thedefendant, "unless they found that the defendantcarelessly and negligently kept the gunpowder onhis premises." And he refused to charge upon theplaintiff's request "that the powder-magazine wasdangerous in itself to plaintiff, and was a privatenuisance, and defendant was liable to the plaintiff,whether it was carelessly kept or not." There wasa verdict for the defendant, and this court reversedthe judgment, holding that the charge waserroneous.* * *The principle that one cannot recover forinjuries sustained from lawful acts done on one'sown property, without negligence and withoutmalice, is well founded in the law. Everyone hasthe right to the reasonable enjoyment of his ownproperty, and, so long as the use to which hedevotes it violates no rights of others, there is nolegal cause of action against him. The wants ofmankind demand that property be put to many andvarious uses and employments, and one may haveupon his property any kind of lawful business;and so long as it is not a nuisance, and is notmanaged so as to become such, he is notresponsible for any damage that his neighboraccidentally and unavoidable sustains. Such lossesRYLANDS V. FLETCHER

50 1. ESTABLISHING A BREACH OF DUTYthe law regards as damnum absque injuria; andunder this principle, if the steam-boiler on thedefendant's property, or the gas-retort, or thenaphtha tanks, had exploded, and injured theplaintiff's property, it would have been necessaryfor her to prove negligence on the defendant's partto entitle her to recover. Losee v. Buchanan, 51N.Y. 476. But where the damage is the necessaryconsequence of just what the defendant is doing,or is incident to the business itself, or the mannerin which it is conducted, the law of negligence hasno application, and the law of nuisance applies.Hay v. Cohoes Co., 2 N.Y. 159; McKeon v. See, 51N.Y. 300. The exception to the refusal to chargethe first proposition above quoted was nottherefore well taken.* * *HAIGHT, J. (dissenting)This action was brought to recover damagesalleged to have been sustained by the plaintiff inconsequence of offensive odors proceeding fromthe gas-works of the defendant, and to obtain aninjunction restraining the defendant frompermitting further emission of such odors. Thecomplaint alleges negligent and unskillfulconstruction of the works, and also negligence inthe use and maintenance thereof. The trial resultedin a verdict for damages, upon which the courtawarded a judgment for an injunction.... A nuisance, as it is ordinarily understood, isthat which is offensive, and annoys and disturbs.A common or public nuisance is that which affectsthe people, and is a violation of a public right,either by direct encroachment upon publicproperty or by doing some act which tends to acommon injury, or by the omitting of that whichthe common good requires, and which it is theduty of a person to do.Public nuisances are founded upon wrongsthat arise from the unreasonable, unwarrantable,or unlawful use of property, or from improper,indecent, or unlawful conduct, working anobstruction of injury to the public, and producingmaterial annoyance, inconvenience, anddiscomfort. Founded upon a wrong, it is indictableand punishable as for a misdemeanor. It is theduty of individuals to observe the rights of thepublic, and to refrain from doing of that whichmaterially injures and annoys or inconveniencesthe people; and this extends even to businesswhich would otherwise be lawful, for the publichealth, safety, convenience, comfort, or morals isof paramount importance; and that which affectsor impairs it must give way for the general; good.In such cases, the question of negligence is notinvolved, for its injurious effect upon the publicmakes it a wrong which it is the duty of the courtsto punish rather than to protect. But a privatenuisance rests upon a different principle. It is notnecessarily founded upon a wrong, andconsequently cannot be indicted and punished asfor an offense. It is founded upon injuries thatresult from the violation of private rights, andproduce damages to but one or few persons.Injury and damage are essential elements, and yetthey may both exist, and still the act or thingproducing them not be a nuisance. Every personhas a right to the reasonable enjoyment of his ownproperty; and so long as the use to which hedevotes it violates no rights of another, howevermuch damage other may sustain therefrom, hisuse is lawful, and it is damnum absque injuria.Thurston v. Hancock, 12 Mass. 222. So that aperson may suffer inconvenience and be annoyed,and if the act or thing is lawful, and no rights areviolated, it is not such a nuisance as the law willafford a redress; but if his rights are violated, as,for instance, if a trespass has been committedupon his land by the construction of the eaves of ahouse so that the water will drip thereon, or by theconstruction of a ditch or sewer so that the waterwill flow, over and upon his premises, or if abrick-kiln be burned so near his premises as thatthe noxious gases generated therefrom are borneupon his premises, killing and destroying his treesand vegetation, it will be a nuisance of which hemay be awarded damages. Campbell v. Seaman,63 N.Y. 568. Hence it follows that in someinstances a party who devotes his premises to ause that is strictly lawful in itself may, eventhough his intentions are laudable and motivesgood, violate the rights of those adjoining him,causing them injury and damage, and thus becomeliable as for a nuisance. It therefore becomesimportant that the courts should proceed withcaution, and carefully consider the rights of theparties, and not declare a lawful business anuisance except in cases where rights have beeninvaded, resulting in material injury and damage.People living in cities and large towns mustsubmit to some inconvenience, annoyance, anddiscomforts. They must yield some of their rightsto the necessity of business which from the natureof things must be carried on in populous cities.Many things have to be tolerated that under othercircumstances would be abated, the necessity fortheir existence outweighing the ill results thatproceed therefrom.... In the case of Heeg v. Licht, 80 N.Y. 579,the defendant had constructed upon his premises aRYLANDS V. FLETCHER

§ B. STRICT LIABILITY 51powder-magazine, in which he kept stored aquantity of powder, which, without apparentcause, exploded, damaging the plaintiff's building.It was held that the plaintiff could recover,without showing carelessness or negligence.MILLER, J., in delivering the opinion of thecourt, says: "The fact that the magazine was liableto such a contingency, which could not be guardedagainst or averted by the greatest degree of careand vigilance, evinces its dangerous character, andmight in some localities render it a privatenuisance. In such a care the rule which exoneratesa party engaged in a lawful business when freefrom negligence has no application." The rule wehave contended for is thus recognized andconceded. There is a distinction between an actionfor a nuisance in respect to an act producing amaterial injury to property and one in respect toan act producing personal discomfort.BOOMER v. ATLANTIC CEMENT CO.26 N.Y.2d 219, 257 N.E.2d 870 (1970)BERGAN, JudgeDefendant operates a large cement plant nearAlbany. These are actions for injunction anddamages by neighboring land owners alleginginjury to property from dirt, smoke and vibrationemanating from the plant. A nuisance has beenfound after trial, temporary damages have beenallowed; but an injunction has been denied.The public concern with air pollution arisingfrom many sources in industry and intransportation is currently accorded ever widerrecognition accompanied by a growing sense ofresponsibility in State and Federal Governmentsto control it. Cement plants are obvious sources ofair pollution in the neighborhoods where theyoperate.But there is now before the court privatelitigation in which individual property ownershave sought specific relief from a single plantoperation. The threshold question raised by thedivision of view on this appeal is whether thecourt should resolve the litigation between theparties now before it as equitably as seemspossible; or whether, seeking promotion of thegeneral public welfare, it should channel privatelitigation into broad public objectives.A court performs its essential function when itdecides the rights of parties before it. Its decisionof private controversies may sometimes greatlyaffect public issues. Large questions of law areoften resolved by the manner in which privatelitigation is decided. But this is normally anincident to the court's main function to settlecontroversy. It is a rare exercise of judicial powerto use a decision in private litigation as apurposeful mechanism to achieve direct publicobjectives greatly beyond the rights and interestsbefore the court.Effective control of air pollution is a problempresently far from solution even with the fullpublic and financial powers of government. Inlarge measure adequate technical procedures areyet to be developed and some that appear possiblemay be economically impracticable.It seems apparent that the amelioration of airpollution will depend on technical research ingreat depth; on a carefully balanced considerationof the economic impact of close regulation; and ofthe actual effect on public health. It is likely torequire massive public expenditure and to demandmore than any local community can accomplishand to depend on regional and interstate controls.A court should not try to do this on its own as aby-product of private litigation and it seemsmanifest that the judicial establishment is neitherequipped in the limited nature of any judgment itcan pronounce nor prepared to lay down andimplement an effective policy for the eliminationof air pollution. This is an area beyond thecircumference of one private lawsuit. It is a directresponsibility for government and should not thusbe undertaken as an incident to solving a disputebetween property owners and a single cementplant - one of many - in the Hudson River valley.The cement making operations of defendanthave been found by the court of Special Term tohave damaged the nearby properties of plaintiffsin these two actions. That court, as it has beennoted, accordingly found defendant maintained anuisance and this has been affirmed at theAppellate Division. The total damage to plaintiffs'properties is, however, relatively small incomparison with the value of defendant'soperation and with the consequences of theinjunction which plaintiffs seek.The ground for the denial of injunction,notwithstanding the finding both that there is anuisance and that plaintiffs have been damagedsubstantially, is the large disparity in economicconsequences of the nuisance and of theinjunction. This theory cannot, however, besustained without overruling a doctrine which hasRYLANDS V. FLETCHER

52 1. ESTABLISHING A BREACH OF DUTYbeen consistently reaffirmed in several leadingcases in this court and which has never beendisavowed here, namely that where a nuisance hasbeen found and where there has been anysubstantial damage shown by the partycomplaining an injunction will be granted.The rule in New York has been that such anuisance will be enjoined although markeddisparity be shown in economic consequencebetween the effect of the injunction and the effectof the nuisance.* * *Although the court at Special Term and theAppellate Division held that injunction should bedenied, it was found that plaintiffs had beendamaged in various specific amounts up to thetime of the trial and damages to the respectiveplaintiffs were awarded for those amounts. Theeffect of this was, injunction having been denied,plaintiffs could maintain successive actions at lawfor damages thereafter as further damage wasincurred.The court at Special Term also found theamount of permanent damage attributable to eachplaintiff, for the guidance of the parties in theevent both sides stipulated to the payment andacceptance of such permanent damage as asettlement of all the controversies among theparties. The total of permanent damages to allplaintiffs thus found was $185,000. This basis ofadjustment has not resulted in any stipulation bythe parties.This result at Special Term and at theAppellate Division is a departure from a rule thathas become settled; but to follow the rule literallyin these cases would be to close down the plant atonce. This court is fully agreed to avoid thatimmediately drastic remedy; the difference inview is how best to avoid it.One alternative is to grant the injunction butpostpone its effect to a specified future date togive opportunity for technical advances to permitdefendant to eliminate the nuisance; another is togrant the injunction conditioned on the paymentof permanent damages to plaintiffs which wouldcompensate them for the total economic loss totheir property present and future caused bydefendant's operations. For reasons which will bedeveloped the court chooses the latter alternative.If the injunction were to be granted unlesswithin a short period - e.g., 18 months - thenuisance be abated by improved methods, therewould be no assurance that any significanttechnical improvement would occur.The parties could settle this private litigationat any time if defendant paid enough money andthe imminent threat of closing the plant wouldbuild up the pressure on defendant. If there wereno improved techniques found, there wouldinevitably be applications to the court at SpecialTerm for extensions of time to perform onshowing of good faith efforts to find suchtechniques.Moreover, techniques to eliminate dust andother annoying by-products of cement making areunlikely to be developed by any research thedefendant can undertake within any short period,but will depend on the total resources of thecement industry nationwide and throughout theworld. The problem is universal wherever cementis made.For obvious reasons the rate of the research isbeyond control of defendant. If at the end of 18months the whole industry has not found atechnical solution a court would be hard put toclose down this one cement plant if due regard begiven to equitable principles.On the other hand, to grant the injunctionunless defendant pays plaintiffs such permanentdamages as may be fixed by the court seems to dojustice between the contending parties. All of theattributions of economic loss to the properties onwhich plaintiffs' complaints are based will havebeen redressed.The nuisance complained of by theseplaintiffs may have other public or privateconsequences, but these particular parties are theonly ones who have sought remedies and thejudgment proposed will fully redress them. Thelimitation of relief granted is a limitation onlywithin the four corners of these actions and doesnot foreclose public health or other publicagencies from seeking proper relief in a propercourt.It seems reasonable to think that the risk ofbeing required to pay permanent damages toinjured property owners by cement plant ownerswould itself be a reasonable effective spur toresearch for improved techniques to minimizenuisance.The power of the court to condition onequitable grounds the continuance of aninjunction on the payment of permanent damagesseems undoubted. (See, e.g., the alternativesconsidered in McCarty v. Natural Carbonic GasCo., supra, as well as Strobel v. Kerr Salt Co.,supra.)The damage base here suggested is consistentwith the general rule in those nuisance caseswhere damages are allowed. "Where a nuisance isof such a permanent and unabatable character thatBOOMER V. ATLANTIC CEMENT CO.

§ B. STRICT LIABILITY 53a single recovery can be had, including the wholedamage past and future resulting therefrom, therecan be but one recovery" (66 C.J.S. Nuisances §140, p. 947). It has been said that permanentdamages are allowed where the loss recoverablewould obviously be small as compared with thecost of removal of the nuisance (Kentucky-OhioGas Co. v. Bowling, 264 Ky. 470, 477, 95 S.W.2d1).* * *Thus it seems fair to both sides to grantpermanent damages to plaintiffs which willterminate this private litigation. The theory ofdamage is the "servitude on land" of plaintiffsimposed by defendant's nuisance. (See UnitedStates v. Causby, 328 U.S. 256, 261, 262, 267, 66S. Ct. 1062, 90 L. Ed. 1206, where the term"servitude" addressed to the land was used byJustice Douglas relating to the effect of airplanenoise on property near an airport.)The judgment, by allowance of permanentdamages imposing a servitude on land, which isthe basis of the actions, would preclude futurerecovery by plaintiffs or their grantees (seeNorthern Indiana Public Serv. Co. v. W.J.& M.S.Vesey, supra, p. 351, 200 N.E. 620).This should be placed beyond debate by aprovision of the judgment that the payment bydefendant and the acceptance by plaintiffs ofpermanent damages found by the court shall be incompensation for a servitude on the land.Although the Trial Term has found permanentdamages as a possible basis of settlement of thelitigation, on remission the court should beentirely free to re-examine this subject. It mayagain find the permanent damage already found;or make new findings. The orders should bereversed, without costs, and the cases remitted toSupreme Court, Albany County to grant aninjunction which shall be vacated upon paymentby defendant of such amounts of permanentdamage to the respective plaintiffs as shall for thispurpose be determined by the court.JASEN, Judge (dissenting)I agree with the majority that a reversal isrequired here, but I do not subscribe to the newlyenunciated doctrine of assessment of permanentdamages, in lieu of an injunction, wheresubstantial property rights have been impaired bythe creation of a nuisance.* * *I see grave dangers in overruling ourlong-established rule of granting an injunctionwhere a nuisance results in substantial continuingdamage. In permitting the injunction to becomeinoperative upon the payment of permanentdamages, the majority is, in effect, licensing acontinuing wrong. It is the same as saying to thecement company, you may continue to do harm toyour neighbors so long as you pay a fee for it.Furthermore, once such permanent damages areassessed and paid, the incentive to alleviate thewrong would be eliminated, thereby continuingair pollution of an area without abatement.It is true that some courts have sanctioned theremedy here proposed by the majority in anumber of cases, but none of the authorities reliedupon by the majority are analogous to thesituation before us. In those cases, the courts, indenying an injunction and awarding moneydamages, grounded their decision on a showingthat the use to which the property was intended tobe put was primarily for the public benefit. Here,on the other hand, it is clearly established that thecement company is creating a continuing airpollution nuisance primarily for its own privateinterest with no public benefit.This kind of inverse condemnation (Fergusonv. Village of Hamburg, 272 N.Y. 234, 5 N.E.2d801) may not be invoked by a private person orcorporation for private gain or advantage. Inversecondemnation should only be permitted when thepublic is primarily served in the taking orimpairment of property. (Matter of New York CityHousing Auth. v. Muller, 270 N.Y. 333, 343, 1N.E.2d 153, 156; Pocantico Water Works Co. v.Bird, 130 N.Y. 249, 258, 29 N.E. 246, 248.) Thepromotion of the interests of the polluting cementcompany has, in my opinion, no public use orbenefit.Nor is it constitutionally permissible toimpose servitude on land, without consent of theowner, by payment of permanent damages wherethe continuing impairment of the land is for aprivate use. (See Fifth Ave. Coach Lines v. City ofNew York, 11 N.Y.2d 342, 347, 229 N.Y.S.2d 400,403, 183 N.E.2d 684, 686; Walker v. City ofHutchinson, 352 U.S. 112, 77 S. Ct. 200, 1 L. Ed.2d 178.) This is made clear by the StateConstitution (art. I, § 7, subd. (a)) which providesthat "[p]rivate property shall not be taken forpublic use without just compensation" (emphasisadded). It is, of course, significant that the sectionmakes no mention of taking for a private use.In sum, then, by constitutional mandate aswell as by judicial pronouncement, the permanentimpairment of private property for privatepurposes is not authorized in the absence ofBOOMER V. ATLANTIC CEMENT CO.

54 1. ESTABLISHING A BREACH OF DUTYclearly demonstrated public benefit and use.I would enjoin the defendant cement companyfrom continuing the discharge of dust particlesupon its neighbors' properties unless, within 18months, the cement company abated thisnuisance.* * *Questions and Notes1. This case raises questions about whatremedies to use in nuisance cases. The court mustnot only decide whether the defendant hasinvaded some protected right of the plaintiff, butmust also decide what to do about it. Most of thetime, the plaintiff in a tort case is interested inmoney damages. In this case the plaintiff alsosought a form of equitable relief, an injunction.The difference between remedies in equity andremedies at law is quite complex, and will becovered in greater depth in your Civil Procedureclass. In a nutshell, the two forms of relief reflecta historical development in the British courts inwhich some courts were permitted to awarddamages, while other courts (more closelycontrolled by the Crown) were able to award"equitable" relief - to order the defendant to do thefair thing. The standards in courts of law and incourts of equity were different, and having thetwo systems compete for the same legal businessmade for fascinating (although quite confusing)legal developments. Virtually all jurisdictions nowuse the same court system to dispense whicheverremedies seem appropriate. For a discussion ofthe history of law and equity, consult a civilprocedure text such as JAMES & HAZARD, CIVILPROCEDURE §§ 1.3-1.5.SPUR INDUSTRIES v. DEL E. WEBBDEVELOPMENT CO.108 Ariz. 178, 494 P.2d 700 (1972)CAMERON, Vice Chief JusticeFrom a judgment permanently enjoining thedefendant, Spur Industries, Inc., from operating acattle feedlot near the plaintiff Del E. WebbDevelopment Company's Sun City, Spur appeals.Webb cross-appeals. Although numerous issuesare raised, we feel that it is necessary to answeronly two questions. They are:1. Where the operation of a business, such asa cattle feedlot is lawful in the first instance, butbecomes a nuisance by reason of a nearbyresidential area, may the feedlot operation beenjoined in an action brought by the developer ofthe residential area?2. Assuming that the nuisance may beenjoined, may the developer of a completely newtown or urban area in a previously agriculturalarea be required to indemnify the operator of thefeedlot who must move or cease operationbecause of the presence of the residential areacreated by the developer?* * *It is clear that as to the citizens of Sun City,the operation of Spur's feedlot was both a publicand a private nuisance. They could havesuccessfully maintained an action to abate thenuisance. Del Webb, having shown a specialinjury in the loss of sales, had a standing to bringsuit to enjoin the nuisance. Engle v. Clark, 53Ariz. 472, 90 P.2d 994 (1939); City of Phoenix v.Johnson, supra. The judgment of the trial courtpermanently enjoining the operation of the feedlotis affirmed.Must Del Webb Indemnify Spur?A suit to enjoin a nuisance sounds in equityand the courts have long recognized a specialresponsibility to the public when acting as a courtof equity:§ 104. Where publicinterest is involved.Courts of equity may, andfrequently do, go much further both togive and withhold relief in furtheranceof the public interest than they areaccustomed to go when only privateinterests are involved. Accor-dingly, thegranting or withholding of relief mayproperly be dependent uponconsiderations of public interest.... 27AM. JUR. 2D, Equity, page 626.In addition to protecting the public interest,however, courts of equity are concerned withprotecting the operator of a lawfully, albeitnoxious, business from the result of a knowingand willful encroachment by others near hisbusiness.In the so-called "coming to the nuisance"cases, the courts have held that the residentialBOOMER V. ATLANTIC CEMENT CO.

§ B. STRICT LIABILITY 55landowner may not have relief if he knowinglycame into a neighborhood reserved for industrialor agricultural endeavors and has been damagedthereby:Plaintiffs chose to live in an areauncontrolled by zoning laws orrestrictive covenants and remote fromurban development. In such an areaplaintiffs cannot complain thatlegitimate agricultural pursuits are beingcarried on in the vicinity, nor canplaintiffs, having chosen to build in anagricultural area, complain that theagricultural pursuits carried on in thearea depreciate the value of their homes.The area being primarily agricultural,and opinion reflecting the value of suchproperty must take this factor intoaccount. The standards affecting thevalue of residence property in an urbansetting, subject to zoning controls andcontrolled planning techniques, cannotbe the standards by which agriculturalproperties are judged.People employed in a city whobuild their homes in suburban areas ofthe county beyond the limits of a cityand zoning regulations do so for areason. Some do so to avoid the hightaxation rate imposed by cities, or toavoid special assessments for street,sewer and water projects. They usuallybuild on improved or hard surfacehighways, which have been built eitherat state or county expense and therebyavoid special assessments for theseimprovements. It may be that theydesire to get away from the congestionof traffic, smoke, noise, foul air and themany other annoyances of city life. Butwith all these advantages in goingbeyond the area which is zoned andrestricted to protect them in their homes,they must be prepared to take thedisadvantages. Dill v. Excel PackingCompany, 183 Kan. 513, 525, 526, 331P.2d 539, 548, 549 (1958). See also EastSt. Johns Shingle Co. v. City ofPortland, 195 Or. 505, 246 P.2d 554,560-562 (1952).And:a party cannot justly call upon thelaw to make that place suitable for hisresidence which was not so when heselected it.... Gilbert v. Showerman, 23Mich. 448, 455, 2 Brown 158 (1871).Were Webb the only party injured, we wouldfeel justified in holding that the doctrine of"coming to the nuisance" would have been a barto the relief asked by Webb, and, on the otherhand, had Spur located the feedlot near theoutskirts of a city and had the city grown towardthe feedlot, Spur would have to suffer the cost ofabating the nuisance as to those people locatingwithin the growth pattern of the expanding city:The case affords, perhaps, anexample where a business established ata place remote from population isgradually surrounded and becomes partof a populous center, so that a businesswhich formerly was not an interferencewith the rights of others has become soby the encroachment of thepopulation.... City of Ft. Smith v.Western Hide & Fur Co., 153 Ark. 99,103, 239 S.W. 724, 726 (1922).We agree, however, with the Massachusettscourt that:The law of nuisance affords no rigidrule to be applied in all instances. It iselastic. It undertakes to require only thatwhich is fair and reasonable under allthe circumstances. In a commonwealthlike this, which depends for its materialprosperity so largely on the continuedgrowth and enlargement ofmanufacturing of diverse varieties,'extreme rights' cannot be enforced....Stevens v. Rockport Granite Co., 216Mass. 486, 488, 104 N.E. 371, 373(1914).There was no indication in the instant case atthe time Spur and its predecessors located inwestern Maricopa County that a new city wouldspring up, full-blown, alongside the feedingoperation and that the developer of that city wouldask the court to order Spur to move because of thenew city. Spur is required to move not because ofany wrongdoing on the part of Spur, but becauseof a proper and legitimate regard of the courts forthe rights and interests of the public.Del Webb, on the other hand, is entitled to therelief prayed for (a permanent injunction), notbecause Webb is blameless, but because of thedamage to the people who have been encouragedto purchase homes in Sun City. It does notequitable or legally follow, however, that Webb,WILLIAMS V. JOHNSON

56 1. ESTABLISHING A BREACH OF DUTYbeing entitled to the injunction, is then free of anyliability to Spur if Webb has in fact been the causeof the damage Spur has sustained. It does notseem harsh to require a developer, who has takenadvantage of the lesser land values in a rural areaas well as the availability of large tracts of land onwhich to build and develop a new town or city inthe area, to indemnify those who are forced toleave as a result.Having brought people to the nuisance to theforeseeable detriment of Spur, Webb mustindemnify Spur for a reasonable amount of thecost of moving or shutting down. It should benoted that this relief to Spur is limited to a casewherein a developer has, with foreseeability,brought into a previously agricultural or industrialarea the population which makes necessary thegranting of an injunction against a lawful businessand for which the business has no adequate relief.It is therefore the decision of this court thatthe matter be remanded to the trial court for ahearing upon the damages sustained by thedefendant Spur as a reasonable and direct result ofthe granting of the permanent injunction. Sincethe result of the appeal may appear novel and bothsides have obtained a measure of relief, it isordered that each side will bear its own costs.Affirmed in part, reversed in part, andremanded for further proceedings consistent withthis opinion.Questions and Notes1. Feedlot operators received moresympathetic treatment in a recent Idaho case.Carpenter v. Double R Cattle Co., 108 Idaho 602,701 P.2d 222 (1985).2. Is there a difference between the treatmentof damage caused by "nuisance" and damagecaused by "negligence"? If so, what is it?3. Should such a distinction be made? Why orwhy not?4. In Armory Park Neighborhood Ass'n v.Episcopal Community Services in Arizona, 148Ariz. 1, 8, 712 P.2d 914, 921 (1985), the plaintiffs'association brought an action to enjoin thedefendant from providing free meals to indigentpersons because, before and after mealtime, centerclients frequently trespassed, urinated, defecated,drank and littered on the plaintiffs' property.Should the court have granted the injunction?Why or why not?5. Prosser comments, "So far as there is onecentral idea, it would seem that it is that liabilitymust be based upon conduct which is sociallyunreasonable. The common thread woven into alltorts is the idea of unreasonable interference withthe interests of others." PROSSER & KEETON, § 2,at 6. In this quotation, is "unreasonable"synonymous with "negligent"?c. AnimalsWILLIAMS v. JOHNSON781 P.2d 922 (Wy. 1989)CARDINE, Chief JusticeAppellant, Thomas Williams, was deliveringmail in a Cheyenne neighborhood when he wasattacked by two dogs owned by appellees, Danieland Jennifer Johnson. The dogs attacked appellantwhile he was standing on the porch of a housenext door to appellees' house. Although the dogsinflicted no direct injury on appellant, theyfrightened him and he injured his knee in anattempt to avoid the attack. Williams sued torecover compensation for his injury. The trialcourt entered summary judgment in favor of theJohnsons. Williams now appeals, asserting thatthe district court erred in its determination that, inorder to defeat the summary judgment motion, hemust raise an issue of fact concerning Johnsons'knowledge of the dangerous propensities of theirdogs.We affirm.The only issue raised by appellant is this:The court below erred in ruling thatas a matter of law, appellants must havehad notice of the dangerous propensitiesof their dogs.Appellant's complaint, filed in June 19, 1987,generally alleged appellees' liability based on thefacts outlined above, but omitted reference to anyparticular theory of recovery. His "Pre-trialMemorandum," however, limited the factual andlegal issues which he considered material toappellees' liability to the following:SPUR INDUSTRIES V. DEL E. WEBB DEVELOPMENT CO.

§ B. STRICT LIABILITY 571. Was appellant attacked by dogsowned by appellee?2. Was such an attack the proximatecause of his injury?3. Could appellees be held liable forthat injury if they had no notice of thevicious nature of their dogs?4. Could appellant obtaincompensation for injury sustained as aresult of a dog attack, during whichthere was no physical contact by theattacking dogs?In opposition to the summary judgmentmotion, appellant argued that he need not proveappellees' knowledge of the vicious propensitiesof their dogs. That contention was consistent withthe position he advanced at the pretrialconference, at which time appellant consideredhimself entitled to recover upon proof of: (1)injury, (2) proximately caused, (3) by attackingdogs owned by appellees. Appellees' summaryjudgment motion asserts that because of absenceof any knowledge of dangerous propensities,appellees are entitled to judgment as a matter oflaw. We agree.This court has recognized three distincttheories of recovery under which appellant couldhave argued the particular facts of this case. Thefirst is the common law theory of strict liability ofan owner who keeps an animal knowing of itsdangerous propensities as articulated inRESTATEMENT, SECOND, TORTS § 509 (1977);Abelseth v. City of Gillette, 752 P.2d 430, 433-34(Wyo. 1988). The second is also a common lawcause of action, for negligence in the care andcontrol of domestic animals. Endresen v. Allen,574 P.2d 1219, 1221-22 (Wyo. 1978). Finally, wehave recognized a theory of negligence premisedon duties created by state statutes or municipalordinances which alter the duties imposed bycommon law by making it unlawful for owners ofdomestic animals to permit them to run at large.Id. at 1222-25; see also Nylen v. Dayton, 770 P.2d1112, 1116 (Wyo. 1989).Under the common law, the owner of avicious dog, if he had knowledge of a dangerouspropensity, was held strictly liable for any harmproximately caused by the animal's viciousbehavior. Such liability attached despite theowner's exercise of utmost care to control theanimal. RESTATEMENT, SECOND, TORTS § 509(1977); Abelseth, 752 P.2d at 433-34; Larsen v.City of Cheyenne, 626 P.2d 558, 560 (Wyo. 1981).The common law also provided that the owner ofan animal which was not vicious or not known tobe vicious, but which was prone to some otherpotentially harmful behavior, could be held liableunder a theory of negligence for any injuryproximately caused by such behavior. In suchcases the owner was only liable if, havingknowledge of the particular propensities whichcreated a foreseeable risk of harm, he failed toexercise reasonable care in his control of theanimal. Thus, if the owner of a dog knew of itsproclivity for leaping fences and chasing cars, hecould be held liable for failure to take reasonablemeasures to confine the animal should it escapefrom his property and cause an accident.RESTATEMENT, SECOND, TORTS § 518 (1977);Endresen, 574 P.2d at 1221-22.Common to both of these causes of action arecertain facts which must be put in issue to defeatdefendant's summary judgment motion, i.e., (1)the owner, (2) of an animal with a propensity forpotentially harmful behavior, (3) must know ofthat propensity, and (4) such behavior must be theproximate cause of injury to the plaintiff. In thiscase, appellees denied knowledge of harmfulpropensities. Appellant claimed knowledge ofdangerous propensities was unnecessary to acommon law cause of action. Appellant thereforefailed to assert facts, by affidavit or otherwise,which would place in issue appellees' knowledgeof the vicious nature of their dogs. This was fatalto his maintaining a cause of action under thesecommon law theories. His suit was premised onthese theories, and the district court, therefore,correctly granted appellees' summary judgmentmotion.Appellant's argument on appeal, however,characterizes his suit as one based on appellees'duties under Cheyenne's municipal ordinances. Heasserts that these ordinances alter the elementsnecessary to the common law actions and renderappellees liable, despite their lack of knowledgeconcerning the dangerous propensities of theiranimals. Appellant bases that argument on ourdiscussion in Endresen v. Allen, in which weexplained that a dog owner's common law dutymay be altered by a municipal ordinance thatprohibits owners from permitting animals to run atlarge. We noted that, while the unconditionalprohibition of such an ordinance creates a duty torestrain animals from running at large withoutreference to the owner's knowledge of theirpropensities to escape or cause harm, theordinance does not relieve a plaintiff from theobligation of establishing that a failure to restrainwas a result of the owner's negligence. Thus, weCOOK V. WHITSELL-SHERMAN

58 1. ESTABLISHING A BREACH OF DUTYrejected the notion that a prima facie case ofnegligence could result from the mere fact that ananimal was at large. Endresen, 574 P.2d at 1222-25. See also Nylen, 770 P.2d at 1116; Hinkle v.Siltamaki, 361 P.2d 37, 40-41 (Wyo. 1961).Appellant presented his claim of a cause ofaction under the ordinances for the first time onappeal. Parties seeking reversal of a summaryjudgment may not, on appeal, assert issues ortheories of recovery which were not presented tothe trial court. This court will not consider suchissues or theories unless it is apparent orreasonably discernable from the pleadings,affidavits and exhibits that they were raisedbelow. Teton Plumbing and Heating, Inc. v. Boardof Trustees, Laramie County School District No.One, 763 P.2d 843, 848 (Wyo. 1988); MinnehomaFinancial Company v. Pauli, 565 P.2d 835, 838-39 (Wyo. 1977).We conclude from our examination of therecord that appellant never presented the trialcourt with a theory of recovery grounded in theduty which may have been created by the"running at large" ordinance. Instead, heproceeded solely upon a common law cause ofaction, arguing merely that the animal controlordinances taken as a whole created apresumption that the Johnsons' dogs were vicious.Nowhere in his pleadings, affidavits, exhibits,or in his pretrial memorandum does appellant somuch as mention any of these city ordinances.Appellees called this fact to the attention of thetrial court in a brief supporting their summaryjudgment motion, which noted:The Plaintiff has not alleged that astate statute or city ordinance posed aduty upon the Defendants and thecomplaint basically alleges a negligencecause of action.Clearly, the Plaintiff is required toshow that the Defendants hadknowledge of the dangerouspropensities of the animals or they arebarred from recovery.Appellant first mentioned the ordinances inhis memorandum in opposition to the summaryjudgment motion, where he briefly quotes from anumber of definitional provisions and the sectionprohibiting owners from permitting animals to runat large, and then relied upon the provisions toestablish that the Johnsons' dogs, running at large,were presumed vicious because of the attack.Appellant summarizes his position with respect tothe ordinances by stating, "It is clear, however,that the Cheyenne Municipal Ordinance has bydefinition abrogated the Common Law Rule andhas created a presumption that an animal isvicious if it engages in an unprovoked attack."The district court correctly concluded thatCheyenne's animal control ordinances did notprovide appellant with presumptive proof that theJohnson's knew of the vicious nature of their dogs.The district court correctly determined that, underthe common law theory of recovery advanced,appellant was required to present as an issue thefact appellees had knowledge of the dangerouspropensities of their dogs. Accordingly, thesummary judgment is affirmed.URBIGKIT, J., files a dissenting opinion.[omitted]d. Statutory Strict LiabilityCOOK v. WHITSELL-SHERMAN796 N.E.2d 271 (Ind. 2003)BOEHM, Justice.Tamara Cook's dog bit Kenneth Whitsell-Sherman while Whitsell-Sherman was discharginghis duties as a letter carrier. The liability ofowners whose dogs bite mail carriers and certainother public servants is governed in Indiana bystatute. We hold the effect of this statute is torender dog owners strictly liable if their dogs bitethe described public servants without provocation.We also hold Indiana Rule of Evidence 413allows the admission into evidence of bills foractual charges for past medical treatment but doesnot authorize admission of written statementspurporting to estimate future medical costs.Factual and Procedural BackgroundOn the afternoon of July 31, 1998, KennethWhitsell-Sherman was delivering mail as a lettercarrier for the United States Postal Service. Whenhe arrived at the home of Marva and Joseph Hart,the Harts were on the sidewalk outside theirfenced yard and their eight-year-old daughter wasseveral feet away on the sidewalk, holdingMaggie, a 100-pound Rottweiler, on a leash.Maggie was owned by appellant Tamara Cook,and the Harts were taking care of her while CookWILLIAMS V. JOHNSON

§ B. STRICT LIABILITY 59was out of town. When Whitsell-Shermanfinished delivering the Hart's mail and attemptedto walk around Mrs. Hart, Maggie broke free andbit Whitsell-Sherman on the left hand. Before thisincident, Maggie had never demonstrated anyaggressive or violent tendencies.Whitsell-Sherman sued Cook and the Harts.The Harts did not appear and a default judgmentwas entered against them on both the complaintand Cook's cross claim for indemnity. After abench trial, the trial court found that Cook was theowner of the dog and the Harts had custody andcontrol at the time of the incident. The courtconcluded that Cook was liable for negligence perse and violation of a statutory duty.* * * The trial court entered judgment forWhitsell-Sherman against Cook and the Harts inthe amount of $87,000. Cook appealed and theHarts remained in default.Indiana Code section 15-5-12-1 provides:If a dog, without provocation, bitesany person who is peaceably conductinghimself in any place where he may berequired to go for the purpose ofdischarging any duty imposed upon himby the laws of this state or by the laws orpostal regulations of the United States ofAmerica, the owner of such dog may beheld liable for any damages suffered bythe person bitten, regardless of the formerviciousness of such dog or the owner'sknowledge of such viciousness.On appeal, the Court of Appeals agreed thatCook was the "owner" of the dog for purposes ofthis statute, but reversed the trial court'sdetermination that the statute rendered the ownerliable under the doctrine of negligence per se. TheCourt of Appeals reasoned that the statuteimposed no duty upon Cook and did not alter thecommon law standard of reasonable care requiredof dog owners except to eliminate the commonlaw presumption that a dog is harmless. The courtconcluded that under general rules of negligence apublic servant who has been bitten by a dog muststill show that the dog's owner failed to actreasonably to prevent the dog from causing harm.* * * This Court granted transfer.I. Liability of "Owners" and Keepers toPublic Servants Bitten by DogsAt the time Maggie bit Whitsell-Sherman,Cook was Maggie's owner but not her custodian.Whether Indiana Code chapter 15-5-12 rendersCook liable under these facts is a question of lawand we review it de novo.Cook argues initially that the statute does notapply to her in this situation because at the time ofthe incident she was not in possession of the dog.Section 15-5-12-2 provides that "owner" as theterm is used in 15-5-12-1 "includes a possessor,keeper, or harborer of a dog." Cook reasons thatunder this definitional section, an "owner" of adog is the person who has control of the dog at thetime of the bite. As in this case, the "keeper" maynot be the person to whom the dog belongs. TheCourt of Appeals held that the statute applies toCook by its terms. The statute explicitly providesthat " 'owner' means the owner of a dog."Ind.Code § 15-5-12-2 (1998). The court reasonedthat the fact that the statute goes on to say that"owner" also "includes" the "possessor, keeper, orharborer of a dog" does not restrict the term"owner" to those in immediate custody. Rather, itexpands the definition of "owner" to includeothers in addition to the dog's owner. We agreethat Cook's liability is governed by this statute.By providing that owner "includes" custodians, itdoes not substitute them for the owner if, likeCook, the owner is absent from the scene of thebite. This also seems fair because the owner isusually better able to know the dog's temperamentthan one to whom temporary custody is extended.The owner is ordinarily best positioned to givewhatever special instructions are necessary tocontrol the dog.Cook argues that even if she is an owner, thetrial court misapplied Section 15-5-12-1 when itheld her negligent per se by reason of the statute.The common law presumes that all dogs,regardless of breed or size, are harmless.Poznanski v. Horvath, 788 N.E.2d 1255, 1257(Ind.2003); Ross v. Lowe, 619 N.E.2d 911, 914(Ind.1993). This presumption can be overcomeby evidence of a known vicious or dangerouspropensity of the particular dog. Ross, 619N.E.2d at 914. The owner or keeper of a dog whoknows of any vicious propensity is required to usereasonable care in those circumstances to preventthe animal from causing injury. Id. Furthermore,the owner of a dog is expected to use reasonablecare to prevent injury that might result from thenatural propensities of dogs. Id. "Thus, whetherthe owner or keeper of the animal is aware of anyvicious propensity, the legal description of theduty owed is the same: that of reasonable careunder the circumstances." Id. Cook argues thatIndiana Code section 15-5-12-1 does nothing toalter this traditional framework other than toremove the common law presumption ofharmlessness if a dog injures a public servant.Accordingly, she argues, the public servantinjured by a dog still bears the burden of showingCOOK V. WHITSELL-SHERMAN

60 1. ESTABLISHING A BREACH OF DUTYthat the owner of the dog failed to exercisereasonable care to prevent the dog from causinginjury.We agree with Cook's view of the commonlaw of dog bites, but we think it clear that Section15-5-12-1 was intended to alter that common lawframework if the victim is a letter carrier. Astatute in derogation of the common law ispresumed to be enacted with awareness of thecommon law. Bartrom v. Adjustment Bureau, Inc.,618 N.E.2d 1, 10 (Ind.1993). Here, the legislatureclearly intended to change the common law anddid so by explicitly removing the common lawpresumption that a dog is harmless unless it actsotherwise. Some states have chosen to imposestrict liability for all dog bites. As theRestatement notes, "[s]tatutes frequently abolishthe necessity of scienter and impose strict liabilityfor all harm caused to human beings and livestockby dogs." Restatement (Second) of Torts § 509cmt. f (1977). See, e.g., Nicholes v. Lorenz, 49Mich.App. 86, 211 N.W.2d 550, 551 (1973) (astatute that provides "the owner of any dogswhich shall ... bite any person ... shall be liable forsuch damages as may be suffered by the personbitten, regardless of the former viciousness ofsuch dog or the owner's knowledge of suchviciousness" places absolute liability on the ownerof the dog).The Indiana statute imposes a less sweepingrevision of common law. It protects only publicservants, and does not expressly set a standard ofconduct or impose liability for a bite. The trialcourt concluded that the effect of the statute wasto render the owner negligent per se. Negligenceper se is ordinarily found where the actor hasviolated a duty imposed by law. Elder v. Fisher,247 Ind. 598, 602, 217 N.E.2d 847, 850 (1966).For example, violation of a statute making it amisdemeanor to permit cattle to wander onto ahighway is negligence per se. Corey v. Smith, 233Ind. 452, 455, 120 N.E.2d 410, 412 (1954). Justas the Indiana statute does not explicitly createliability, it also does not expressly establish astandard of conduct. It thus does not suggestnegligence per se under standard doctrine.We nevertheless conclude the statute has theeffect of rendering the owner liable for bites ofpublic servants. Persons engaged in dangerousactivities may be strictly liable to others who areinjured. Specifically, owners of wild animalshave been viewed as negligent per se for failure tocontrol the animal. See Bostock-FerariAmusement Co. v. Brocksmith, 34 Ind.App. 566,568, 73 N.E. 281, 282 (1905). More recently,liability for injuries inflicted by wild animals hasbeen viewed as strict liability doctrine. Irvine v.Rare Feline Breeding Ctr., 685 N.E.2d 120, 123(Ind.Ct.App.1997) (injuries by a tiger). Thus,possession of a wild animal is, like blasting, anunreasonably dangerous activity subjecting theactor to strict liability. The common law treateddogs, unlike tigers, as presumptively notdangerous and not subject to that liability.Otherwise stated, although a dog with apreviously spotless record may present some riskof a bite, canine ownership was not an abnormallydangerous activity at common law. However, theIndiana statute puts dog owners on the same legalfooting as owners of less domestic animals as faras public servants are concerned. The result isstrict liability for failure to prevent injuries thatare the result of the perceived dangerouspropensity. In this case, the dangerous propensityis a dog bite. Keeping a tiger in the backyard is aclassic example of an "abnormally dangerous"activity subjecting the keeper to strict liability.See Dan B. Dobbs, The Law of Torts § 345, at947-48 (2001). The Indiana statute gives thepostal delivery worker the same protection fromdog bites that the common law gives all citizensfrom tiger maulings. In this case, the statutereflects a policy choice that the dog's owner andkeeper should bear the loss rather than the injuredpublic employee. Accordingly, Cook is subject tostrict liability for Maggie's biting Whitsell-Sherman.Reading the statute to impose strict liability issimilar but not identical to the negligence per setheory followed by the trial court. Undernegligence per se, the law accepts the legislativejudgment that acts in violation of the statuteconstitute unreasonable conduct. A person whoseacts are negligent per se can still invoke theexcuses available to any negligent actor such asemergency response or lack of capacity. Seegenerally Restatement (Second) of Torts § 288A;Gore v. People's Sav. Bank, 235 Conn. 360, 665A.2d 1341, 1345 n. 10 (1995). Strict liability, onthe other hand, assumes no negligence of theactor, but chooses to impose liability anyway.David C. Sobelsohn, Comparing Fault, 60 Ind.L.J. 413, 427-28 (1985).By stating that an owner "may be held liable... regardless of the former viciousness of suchdog or the owner's knowledge of suchviciousness," the statute directs that a court mayhold a person liable whether or not the dog had ahistory of violence. Cook points to the statute'suse of the word "may," and argues that the statutepermits but does not require liability for the dog'sfirst bite. She reasons that a successful plaintiffCOOK V. WHITSELL-SHERMAN

§ B. STRICT LIABILITY 61must still establish lack of reasonable care. Wethink "may" simply emphasizes the change in theliability scheme from the common law rule thatevery dog gets one free bite. Because every canineis a dangerous instrumentality as far as postalemployees are concerned, the rules applicable towild animals apply to impose strict liability. Thenet result of eliminating the presumption of canineharmlessness is that the statute imposes strictliability on dog owners for bites of letter carriersand other public servants in the course of theirduties. The result is that the statute's removal ofthe presumption in most cases leaves the bittenpublic servant with nothing more to prove toestablish liability than who the owner is and thatthe dog sunk his teeth into the public servantwithout provocation. Failure to control the dogwho bites under these circumstances renders theowner liable without more.* * *ConclusionWe hold that Indiana Code section 15-5-12-1imposes strict liability on dog owners whose dogsbite public servants without provocation. We holdalso that Rule 413 of the Indiana Rules ofEvidence does not support the introduction intoevidence of written estimates of future medicalcosts. Cook argues that the amount of damagesassessed against her was excessive. Because theremust be a new trial of damages, we need notaddress this issue. This case is remanded forretrial on the issue of damages.SHEPARD, C.J., and DICKSON, andSULLIVAN, JJ. concur.RUCKER, J., concurs in part and dissents inpart with separate opinion.RUCKER, Justice, concurring in part anddissenting in part.I disagree with the majority's conclusion thatIndiana Code section 15-5- 12-1 imposes strictliability on the owners of dogs that bite lettercarriers and other public servants. Although theGeneral Assembly abrogated the common law inthis area, there is nothing in the statute to suggestthat it did so by making dog owners strictly liable.Professor Prosser discussed the rationale for theimposition of strict liability against owners forinjuries caused by dangerous animals. Heexplained that strict liability is appropriatelyplaced:[U]pon those who, even with propercare, expose the community to the risk ofa very dangerous thing.... The kind of"dangerous animal" that will subject thekeeper to strict liability ... must posesome kind of an abnormal risk to theparticular community where the animal iskept; hence, the keeper is engaged in anactivity that subjects those in the vicinity,including those who come onto hisproperty, to an abnormal risk. It is theexposing of others to an abnormal riskthat is regarded as justifying strictliability.... Thus, strict liability has beenimposed on keepers of lions and tigers,bears, elephants, wolves, monkeys, andother animals. No member of such aspecies, however domesticated, can everbe regarded as safe, and liability does notrest upon any experience with theparticular animal.Prosser and Keeton on the Law of Torts § 76,at 541-42 (5th ed.1984) (footnotes omitted). Theunderlying premise is that the animal itself isinherently dangerous and thus safety lies only inkeeping the animal secure. See, e.g., Irvine v.Rare Feline Breeding Ctr., Inc., 685 N.E.2d 120,125 (Ind.Ct.App.1997) (discussing the impositionof strict liability on owners of wild animals),trans. denied.There is nothing inherently dangerous about adog. Indeed, as the majority correctly points out,under our common law, all dogs regardless ofbreed or size, are presumed to be harmlessdomestic animals. Poznanski v. Horvath, 788N.E.2d 1255, 1258 (Ind.2003); Ross v. Lowe, 619N.E.2d 911, 914 (Ind.1993). Ordinarily thispresumption is overcome by evidence of a knownor dangerous propensity as shown by the specificacts of the particular animal. Poznanski, 788N.E.2d at 1258. However, even where the ownerof a dog knows of the animal's dangerouspropensity "[the] rules of liability are based uponnegligence and not strict liability." Id. at 1259(quoting Alfano v. Stutsman, 471 N.E.2d 1143,1144 (Ind.Ct.App.1984)).In this case the majority reasons the statute'slanguage that an owner "may be held liable ...regardless of the former viciousness of such dogor the owner's knowledge of such viciousness,"has the "net result" of imposing strict liability ondog owners when their dogs bite letter carriers andother public servants in the course of their duties.Slip op. at 8-9 (emphasis added). In my view thisis an overly expansive reading of the statute. Hadthe Legislature intended to impose strict liability,it would have done so by dictating that an owner"shall be held liable ... etc." Absent suchlanguage, I agree with my colleagues on the Courtof Appeals that the statute removes the commonlaw presumption that a dog is harmless inCOOK V. WHITSELL-SHERMAN

62 1. ESTABLISHING A BREACH OF DUTYsituations where an unprovoked dog bites a lettercarrier or other public servant. In essence, thestatute simply relieves the plaintiff of the burdenof establishing a dog owner's knowledge of thedog's dangerous propensities. The plaintiff stillhas the burden of establishing that the dog ownerfailed to exercise reasonable care to prevent thedog from causing injury. On this point I thereforedissent. I concur in the remainder of the majorityopinion.Notes and Questions1. Students are often confused by thesimilarity between statutory strict liability andnegligence per se. Everything depends upon theintent of the legislature in adopting the statute inquestion. Typically a statute will simply prohibitor require some activity (like a prohibition againstdumping non-recylcable material into a recyclingcontainer, or a requirement that anyone riding amotorcycle must first obtain a license). Somestatutes, however, go beyond merely commandingor prohibiting an activity and actually require theperson engaging in a particular activity tocompensate those injured by the activity. That‟swhat is at stake in Cook. Note that it is not alwayseasy to determine the legislature‟s intent, as theconflicting opinions in the case demonstrate.What is important for the student is to understandthe different effect that the two types of statuteswill have. If the statute is of the ordinary kind, atmost it creates a presumption (sometimesconclusive) that the unexcused violation of astatute will be judged negligent as a matter of law.But the defendant can dispute the characterizationof the conduct as negligent by offering an excuse,or challenging the scope of statutory purpose. Onthe other hand, if the intent of the statute is to shiftthe burden of loss to the defendant, withoutrequiring proof that the defendant was negligent,then it imposes a form of strict liability thatapplies regardless of negligence.COOK V. WHITSELL-SHERMAN

Chapter 2Proximate CauseIntroductionCausation is one of the most difficultconcepts for many law students to master. This isperhaps because most of the causation concept isintuitively obvious. What is difficult is not thelargely intuitive and obvious part, but therelatively rare case in which our intuitive facultiesfail us. For example, when two cars collide in anintersection, and one of the cars was driven atexcessive speed through a red light, it is notdifficult for us to assign the cause of the accidentto speeding and failure to yield. Although theissue of causation is technically part of theplaintiff's burden of proof, in practice that issuewill occupy almost none of the jury's time indeliberation.The difficulty arises where we are uncertainabout what caused a particular accident, or wherewe are certain of one cause, but uncertain withrespect to another. For example, if an asbestosworker/smoker dies of lung cancer, what must weknow about the relationship between lung cancerand smoking or between lung cancer and asbestosbefore we can say that one or the other (or both)caused his lung cancer? Is it enough to note thatsmokers have a significantly higher rate of lungcancer than nonsmokers? What about the fact thatasbestos workers have higher lung cancer ratesthan the population as a whole?A typical jury instruction requires the jury tofind that the defendant's conduct was "a proximatecause" of the plaintiff's injury. Tort law hasgenerally divided the question of proximate causeinto two separate inquiries, both of which must beaffirmatively answered by the finder of fact:(a) But-for causation (alsocalled cause-in-fact): Can it be said thatthe injury would not have occurred butfor the defendant's conduct?- and -(b) Legal cause: was thedefendant's conduct closely enoughrelated to the plaintiff's injury to make itfair to hold him liable?Each of these is taken up in turn, after wehave looked at a California case that abandonedthe traditional approach.MITCHELL v. GONZALEZ54 Cal. 3d 1041, 1 Cal. Rptr. 2d 913, 819 P.2d872 (1991)LUCAS, Chief JusticeIn this case we decide whether BAJI No.3.75, 12 the so-called proximate cause instruction,which contains a "but for" test of cause in fact,should continue to be given in this state, orwhether it should be disapproved in favor of BAJINo. 3.76, the so-called legal cause instruction,which employs the "substantial factor" test ofcause in fact. 1312All BAJI instructions referred to are from thebound volume of the seventh edition (1986) unlessotherwise noted.13BAJI No. 3.75, requested by defendants andgiven by the trial court, provides: "A proximate cause of[injury] [damage] [loss] [or] [harm] is a cause which, innatural and continuous sequence, produces the [injury][damage] [loss] [or] [harm] and without which the [injury][damage] [loss] [or] [harm] would not have occurred."Because of the "without which" language, courts oftenrefer to this instruction as the "but for" instruction ofcausation. BAJI No. 3.76, requested by plaintiffs andrefused by the trial court, provides: "A legal cause of[injury] [damage] [loss] [or] [harm] is a cause which is asubstantial factor in bringing about the [injury] [damage][loss] [or] [harm]."We emphasize that despite the use of the terms proximatecause and legal cause, BAJI Nos. 3.75 and 3.76 areinstructions on cause in fact. Issues that are properlyreferred to as questions of proximate or legal cause arecontained in other instructions. (See, e.g., BAJI No. 3.79COOK V. WHITSELL-SHERMAN

64 2. PROXIMATE CAUSEPlaintiffs James and Joyce Mitchell, theparents of 12-year-old Damechie Mitchell, whodrowned in Lake Gregory on July 4, 1985, sueddefendants Jose L. Gonzales, Matilde Gonzales,and Mrs. Gonzales's son Luis (hereafterdefendants) for damages, claiming defendants'negligence caused Damechie's death. By specialverdict, the jury found that defendants werenegligent, i.e., they had breached a duty, but thatthe negligence was not a proximate cause of thedeath.The Court of Appeal concluded that, underthe facts, the trial court erred when it deniedplaintiffs' request to instruct the jury pursuant toBAJI No. 3.76 and instead instructed under BAJINo. 3.75. After reviewing both instructions, theCourt of Appeal concluded that BAJI No. 3.75 ispotentially misleading and should not have beengiven, and that the trial court committedprejudicial error when it refused to give BAJI No.3.76.We granted review in this case to determinewhether courts should continue to instruct jurieson cause in fact using BAJI No. 3.75 in light ofthe frequent criticism of that instruction. Weconclude that the Court of Appeal was correct andthat BAJI No. 3.75 should be disapproved.I. FactsDamechie, 12 years old, standing 4 feet 11inches tall, and weighing 90 pounds, had a tagalonglittle-brother relationship with his friendLuis, who was 14 years old, 5 feet 4 inches tall,and weighed 190 pounds. The Gonzales invitedDamechie to accompany them to Lake Gregoryfor the Fourth of July. According to Mrs.Mitchell's testimony, when Mrs. Gonzales calledher to ask whether Damechie could accompanythem, she informed Mrs. Gonzales that Damechiecould not swim. After Mrs. Gonzales suggestedthat the boys would play in the shallow edge ofthe lake, the Mitchells agreed that Damechiecould go, as long as he was restricted to the edgeof the lake.Mrs. Gonzales denied that she had told Mrs.Mitchell the children would be swimming or thatMrs. Mitchell had told her Damechie could notswim.According to Mrs. Mitchell, while Damechiewas packing, he, Luis, and Luis's sister, Yoshi,talked about swimming. Mrs. Mitchell told the[superseding causes].)children Damechie could not swim and should notgo swimming. Luis and Yoshi said they wouldwatch Damechie.Luis testified that Mrs. Mitchell did not tellhim that Damechie could not swim. He didremember telling her they were going swimming,but he did not remember what she said about it.He also remembered that Mrs. Mitchell told himto watch out for Damechie because Luis wasbigger and older than Damechie.At the lake, the Gonzales family was joinedby Mr. and Mrs. Reyes and their young children.Luis asked his parents for money to rent apaddleboard. Mrs. Gonzales told him, as shealways did, not to go into water over his head.Both Luis and Yoshi knew how to swim.The three children rented two paddleboards,replying affirmatively when asked by theemployee in charge of rentals whether they knewhow to swim. During the morning, the childrenstayed within 30 feet of shore, in water that wasnot over their heads. Mr. and Mrs. Gonzalesadmittedly did not watch the children during someof the time the children were in the water.Mrs. Gonzales testified that had she knownthe children were going into deep water, sheprobably would not have allowed it because shebelieved it would be dangerous. Apparently,because of her vantage point, it was difficult forher to watch the children in the water, and therewas a long period when she did not have them insight. She assumed Luis would obey her, althoughshe acknowledged that he had disobeyed her onother occasions.Mr. Gonzales testified that he relied on thelifeguards to watch the children and that heneither knew nor asked whether Damechie couldswim.After lunch, Mrs. Gonzales told the childrennot to leave the picnic area and went to therestroom. Nevertheless, the children left andrented another paddleboard. When she returned tothe picnic site 15 minutes later, the children weregone and Mr. Gonzales was asleep. She did notknow where they had gone, nor did she ask Mr.Reyes, who was awake and at the site, of theirwhereabouts.The children had entered the water and, ontheir paddleboard, crossed the lake. When Luisstarted to push Damechi and Yoshi, who were onthe paddleboard, back across the lake, Damechietold Luis he could not swim.Luis, nevertheless, pushed them 100 feet outonto the lake, into water over their heads. He thenMITCHELL V. GONZALEZ

INTRODUCTION 65told Damechie to let him get on the paddleboardbecause he was tired. Damechie again told Luis hewas unable to swim and asked him to be careful.Luis promised to be careful. After Luis got onboard, Damechie asked Luis whether Luis wouldsave him if he fell off. Luis said he would do so.Shortly before the accident, the children werefive to ten feet from three women, apparently on anearby paddleboard, who testified that thechildren made a lot of noise and engaged inhorseplay. They each testified that Luis was therowdiest.One of the women testified that thepaddleboard tipped over and that the noise androughhousing stopped for five to ten minutes.Immediately before the board tipped over, Luiswas on the center of the board and Damechie andYoshi were draped over it. During the quietperiod, neither Luis nor Yoshi called or gesturedfor help, but they appeared to be whispering.The second woman testified that the quietperiod lasted from one to five minutes, duringwhich time she glanced over and saw only Luisand Yoshi. She did not hear any cries for help.The third woman thought three minutes ofquiet elapsed before she notice only two childrenwhere there had previously been three. She neverheard any call for help.After the women noticed one of the childrenwas missing, Luis said, "Lady, my friend's downthere," indicating the lake. One of the womenyelled for a lifeguard and asked Luis why he hadnot signalled for help sooner. He replied thatneither he nor his sister could swim. He also saidthat Damechie had grabbed Luis in an effort tosave himself and that he, Luis, had kickedDamechie to get him off and to avoid being pulledunder.Luis testified that the board tipped over whenDamechie put his hands on Luis's shoulder. Headmitted he rocked the board before it tipped overand that Damechie's movement had not caused theboard to tip. The employee in charge of thepaddleboard rentals testified that "You have towork at it" to get a board to tip. Yoshi testified thatthe board tipped when Luis attempted to climb on.Luis testified that Damechie was very scaredwhile the board was rocking and that he askedLuis not to rock the board because he did not wantto fall off. Additionally, Luis admitted that at thetime, he was being very rowdy and that when hetipped the board, he and Damechie fell off.Damechie panicked and grabbed Luis's shorts,pulling them down. Luis pulled them up, andDamechie grabbed Luis's ankles. Luis shook freeof Damechie, got to the surface, and climbed ontothe board. He looked into the water and could seeDamechie's fingers, which he tried to grab. Yoshiremained on the board. Luis testifiedinconsistently, one time stating that he waited twoor three minutes before calling a lifeguard andanother time stating that he immediately called fora lifeguard.Later that day, Luis told the lifeguards thatDamechie had rocked the board, causing it to flip.He asked them whether he and his family wouldbe sued. Mrs. Gonzales asked him, "Why didn'tyou stay where I told you to stay?"Damechie's body was not recovered forseveral days because of the opacity of the waterand bottom vegetation. The body was about 120feet from shore in 8 feet of water.The Mitchells sued the Gonzaleses, includingLuis, and others not party to this appeal. Thecomplaint alleged causes of action for negligenceand wrongful death. Defendants assertedcomparative negligence on the part of Damechieand his parents.As noted above, the court refused plaintiffs'proffered instruction on causation in fact (i.e.,BAJI No. 3.76) and instead gave the causation infact instruction requested by defendants, BAJINo. 3.75.The jury, by special verdict, concluded thatdefendants were negligent but that the negligencewas not a cause of the death. The jury thereforedid not reach a special verdict on comparativenegligence.The trial court denied plaintiffs' motions for anew trial or a judgment notwithstanding theverdict. The Court of Appeal reversed.II. DiscussionAs explained below, we conclude the Court ofAppeal correctly determined that the trial courtprejudicially erred when it refused BAJI No. 3.76and instead gave BAJI No. 3.75. Our discussionproceeds in two steps. We begin by determiningwhether instructional error occurred. Our analysisfocuses on whether conceptual and grammaticalflaws in BAJI No. 3.75 may confuse jurors andlead them to improperly limit their findings oncausation, and whether BAJI No. 3.76 is asuperior alternative instruction. Because we finderror, we next analyze prejudice and conclude thatthere is a reasonable probability that BAJI No.3.75 misled the jurors into finding that defendants'negligence was not a "proximate cause" ofHULL V. MERCK

66 2. PROXIMATE CAUSEDamechie's death and that a result more favorableto plaintiffs would have occurred if the jury hadbeen instructed under BAJI No. 3.76.Accordingly, we affirm the Court of Appeal'sdecision reversing the judgment of the trial court.A. Alleged Instructional ErrorAs Dean Prosser observed over 40 years ago,"Proximate cause remains a tangle and a jungle, apalace of mirrors and a maze...." Cases "indicatethat `proximate cause' covers a multitude of sins,that it is a complex term of highly uncertainmeaning under which other rules, doctrines andreasons lie buried...." (Prosser, Proximate Causein California (1950) 38 CAL. L. REV. 369, 375.)One of the concepts included in the termproximate cause is cause in fact, also referred toas actual cause. 14 Indeed, for purposes of BAJINo. 3.75, "so far as a jury is concerned `proximatecause' only relates to causation in fact." (Com. toBAJI No. 3.75, italics added.) 15 "There are twowidely recognized tests for establishing cause infact. The `but for' or `sine qua non' rule,unfortunately labeled `proximate cause' in BAJINo. 3.75, asks whether the injury would not haveoccurred but for the defendant's conduct. Theother test, labeled `legal cause' in BAJI No. 3.76,asks whether the defendant's conduct was asubstantial factor in bringing about the injury."(Maupin v. Widling (1987) 192 Cal. App. 3d 568,574, 237 Cal. Rptr. 521.)BAJI Nos. 3.75 and 3.76 are alternativeinstructions that should not jointly be given in asingle lawsuit. (See Maupin v. Widling, supra, 192Cal. App. 3d 568, 575-579, 237 Cal. Rptr. 521[error to give both BAJI No. 3.79, which instructs14In addition to the issue of causation in fact,Prosser lists the following issues that have at various timesbeen included in the proximate cause rubric:apportionment of damages among causes, liability forunforeseeable consequences, superseding causes, shiftedresponsibility, duty to the plaintiff, and plaintiff's fault.(Prosser, Proximate Cause in California, supra, 38 CAL.L. REV. 369, 374.)15Although the dissent embarks upon a generaldiscussion of proximate cause, the discussion is misplaced.We do not dispute the dissent's claim that there is morethan one concept included in the term "proximate cause."(Dis. opn., post, at p. 923 of 1 Cal. Rptr. 2d, at p. 881 of819 P.2d.) For purposes of this case, however, we focus onthe jury's consideration of BAJI No. 3.75 as it relates tocause in fact.on supervening causes in substantial factor terms,and BAJI No. 3.75].) Several Court of Appealopinions have discussed the propriety of givingone or he other instruction in particularcircumstances. It has generally been recognizedthat the "but for" test contained in BAJI No. 3.75should not be used when two "causes concur tobring about an event and either one of themoperating alone could have been sufficient tocause the result (Thomsen v. Rexall Drug &Chemical Co. [(1965)] 235 Cal. App. 2d 775 [45Cal. Rptr. 642]). In those few situations, wherethere are concurrent [independent] causes, our lawprovides one cannot escape responsibility for hisnegligence on the ground that identical harmwould have occurred without it. The proper rulefor such situations is that the defendant's conductis a cause of the event because it is a materialelement and a substantial factor in bringing itabout." (Vecchione v. Carlin (1980) 111 Cal. App.3d 351, 359, 168 Cal. Rptr. 571; see also Hart v.Browne (1980) 103 Cal. App. 3d 947, 960-962,163 Cal. Rptr. 356; Fraijo v. Hartland Hospital(1979) 99 Cal. App. 3d 331, 346-347, 160 Cal.Rptr. 246; PROSSER & KEETON ON TORTS (5th ed.1984) § 41, pp. 266-267; BAJI Nos. 3.75, 3.76and respective comments.) The foregoingauthorities conclude that in such a situation BAJINo. 3.76 should be given.This case presents the issue of whether BAJINo. 3.75 should be given in any negligenceaction.Criticism of the term "proximate cause" hasbeen extensive. Justice Traynor once observed,"In all probability the general expectation is thereasonable one that in time courts will dispel themists that have settled on the doctrine ofproximate cause in the field of negligence."(Mosley v. Arden Farms Co. (1945) 26 Cal. 2d213, 222, 157 P.2d 372 (conc. opn. of TRAYNOR,J.).) Similarly, while serving on the Court ofAppeal, Justice Tobriner commented, "Theconcept of proximate causation has given courtsand commentators consummate difficulty and hasin truth defied precise definition." (State Comp.Ins. Fund v. Ind. Acc. Com. (1959) 176 Cal. App.2d 10, 20, 1 Cal. Rptr. 73.)Nor did Prosser and Keeton hide their dislikefor the term: "The word `proximate' is a legacy ofLord Chancellor Bacon, who in his timecommitted other sins. The word means nothingmore than near or immediate; and when it wasfirst taken up by the courts it had connotations ofproximity in time and space which have longMITCHELL V. GONZALEZ

INTRODUCTION 67since disappeared. It is an unfortunate word,which places an entirely wrong emphasis upon thefactor of physical or mechanical closeness."(PROSSER & KEETON ON TORTS, supra, § 42, at p.273, fn. omitted.)It is reasonably likely that when jurors hearthe term "proximate cause" they maymisunderstand its meaning or improperly limittheir discussion of what constitutes a cause in fact.Prosser and Keeton's concern that the word"proximate" improperly imputes a spatial ortemporal connotation is well founded. WEBSTER'STHIRD NEW INTERNATIONAL DICTIONARY (1981)page 1828, defines proximate as "very near,""next," "immediately preceding or following."Yet, "[p]roximity in point of time or space is nopart of the definition [of proximate cause] ...except as it may afford evidence for or againstproximity of causation. [Citation.]" (Osborn v.City of Whittier (1951) 103 Cal. App. 2d 609, 616,230 P.2d 132.)Given the foregoing criticism, it is notsurprising that a jury instruction incorporating theterm "proximate cause" would come under attackfrom courts, litigants, and commentators. Inconsidering a predecessor to BAJI No. 3.75 thatincluded language almost identical to the currentinstruction, 16 Prosser observed, "There areprobably few judges who would undertake to sayjust what this means, and fewer still who wouldexpect it to mean anything whatever to a jury. Thefirst sentence was lifted by a California opinionlong since from SHEARMAN AND REDFIELD ONNEGLIGENCE, a text written for lawyers and notexpected to be comprehensible to laymen, andnone too good a text at that." (Prosser, ProximateCause in California, supra, 38 CAL. L. REV. 369,424, fn. omitted.)The misunderstanding engendered by theterm "proximate cause" has been documented. 17In a scholarly study of 14 jury instructions, BAJINo. 3.75 produced proportionally the mostmisunderstanding among laypersons. (Charrow,Making Legal Language Understandable: APsycholinguistic Study of Jury Instructions (1979)79 COLUM. L. REV. 1306, 1353 (hereafterPsycholinguistic Study).) The study noted twosignificant problems with BAJI No. 3.75. First,because the phrase "natural and continuoussequence" precedes "the verb it is intended tomodify, the construction leaves the listener withthe impression that the cause itself is in a naturaland continuous sequence. Inasmuch as a single`cause' cannot be in a continuous sequence, thelistener is befuddled." (Psycholinguistic Study,supra, 79 COLUM. L. REV. at p. 1323.) Second, inone experiment, "the term `proximate cause' wasmisunderstood by 23% of the subjects.... Theyinterpreted it as `approximate cause,' `estimatedcause,' or some fabrication." (Id., at p. 1353.)Our Courts of Appeal have recognized theserious problems with the language of BAJI No.3.75. In Fraijo v. Hartland Hospital, supra, 99Cal. App. 3d 331, 160 Cal. Rptr. 246, the courtcriticized the instruction because it appeared toplace an undue emphasis on "nearness."Nonetheless, "despite the criticism of the `but for'language in BAJI No. 3.75, the most recentedition of California Jury Instructions (Civil)[citation] ... allow[s] the trial judge to exercise adiscretion in selecting his preference between ...the `proximate cause' instruction found in BAJINo. 3.75, or the `legal cause' instruction found inBAJI No. 3.76." (Id., at p. 346, 160 Cal. Rptr.246.)The Fraijo court said, "We agree that BAJINo. 3.75 - the proximate cause instruction - is farfrom constituting a model of clarity in informing ajury as to what is meant by proximate causation....Nevertheless, in view of its long history of beingconsidered a correct statement of the law by the16"The proximate cause of an injury is that causewhich, in natural and continuous sequence, unbroken byany efficient intervening cause, produces the injury, andwithout which the result would not have occurred. It is theefficient cause - the one that necessarily sets in operationthe factors that accomplish the injury. It may operatedirectly or through intermediate agencies or throughconditions created by such agencies." (BAJI No. 104 (4thed. 1943 bound vol.), italics added.)17Contrary to the dissenting opinion, we think itunwise to underestimate the problems associated with theterm "proximate cause." (Dis. opn., post, at p. 924 of 1Cal. Rptr. 2d, at p. 882 of 819 P.2d.) The precedingexamples clearly establish the likelihood that jurors will bemisled by the term. It is in the face of a flurry of criticismthat the dissent recognizes the instruction is not a "modelof clarity." (Dis. opn., post, at p. 923 of 1 Cal. Rptr. 2d, atp. 881 of 819 P.2d.) Yet, the dissent advocates retention ofthe flawed instruction without explaining what mysteriousmeritorious aspect of the instruction overcomes its readilyapparent shortcomings. The dissent fails to articulate anycompelling reason for this court to embrace an admittedlyconfusing instruction.HULL V. MERCK

68 2. PROXIMATE CAUSEcourts of this state, we are not inclined to hold thatBAJI No. 3.75 is an erroneous instruction.Although we believe such a determination shouldbe made, we consider that the determination oughtto be made by our Supreme Court and not by anintermediate reviewing court." (Fraijo v. HartlandHospital, supra, 99 Cal. App. 3d 331, 347, 160Cal. Rptr. 246; see also Maupin v. Widling, supra,192 Cal. App. 3d 568, 574, 237 Cal. Rptr. 521["BAJI No. 3.75 is famous for causing jurorconfusion. It has been criticized for its inexactterminology and incorrect sentence structure."];John B. Gunn Law Corp. v. Maynard (1987) 189Cal. App. 3d 1565, 1571, 235 Cal. Rptr. 180[instruction misleading, but "it has never beenheld error in California to instruct in terms ofBAJI No. 3.75 due to lack of intelligibility."].)We believe the foregoing authorities properlycriticize BAJI No. 3.75 for being conceptually andgrammatically deficient. The deficiencies maymislead jurors, causing them, if they can glean theinstruction's meaning despite the grammaticalflaws, to focus improperly on the cause that isspatially or temporally closest to the harm.In contrast, the "substantial factor" test,incorporated in BAJI No. 3.76 and developed bythe RESTATEMENT SECOND OF TORTS, section 431(com. to BAJI No. 3.76) has been comparativelyfree of criticism and has even received praise. "Asan instruction submitting the question of causationin fact to the jury in intelligible form, it appearsimpossible to improve on the RESTATEMENT's`substantial factor [test.]'" (Prosser, ProximateCause in California, supra, 38 CAL. L. REV. 369,421.) It is "sufficiently intelligible to any laymanto furnish an adequate guide to the jury, and it isneither possible nor desirable to reduce it to lowerterms." (Id., at p. 379.) 1818Although the dissent recognizes that BAJI No.3.76 (embodying the "substantial factor" test) is"essentially a cause-in-fact instruction," it criticizes thetest on grounds unrelated to its use with regard tocause-in-fact considerations. The dissent prefaces itsdiscussion with the qualification, "When the `substantialfactor' test is used as a means of setting limits onliability...." (Dis. opn., post, at p. 925 of 1 Cal. Rptr. 2d, atp. 884 of 819 P.2d.) Without articulating any reason tobelieve the test would be so applied, the dissent claims thetest does not work well for the liability limitingconsiderations that are distinct from a finding ofcause-in-fact. Although the dissent further details theshortcomings of the "substantial factor" test when the testis used for other purposes, it does not demonstrate anyMoreover, the "substantial factor" testsubsumes the "but for" test. "If the conduct whichis claimed to have caused the injury had nothingat all to do with the injuries, it could not be saidthat the conduct was a factor, let alone asubstantial factor, in the production of theinjuries." (Doupnik v. General Motors Corp.(1990) 225 Cal. App. 3d 849, 861, 275 Cal. Rptr.715.)Not only does the substantial factorinstruction assist in the resolution of the problemof independent causes, as noted above, but "[i]taids in the disposition ... of two other types ofsituations which have proved troublesome. One isthat where a similar, but not identical result wouldhave followed without the defendant's act; theother where one defendant has made a clearlyproved but quite insignificant contribution to theresult, as where he throws a lighted match into aforest fire. But in the great majority of cases, itproduces the same legal conclusion as the but-fortest. Except in the classes of cases indicated, nocase has been found where the defendant's actcould be called a substantial factor when the eventwould have occurred without it; nor will casesvery often arise where it would not be such afactor when it was so indispensable a cause thatwithout it the result would not have followed."(PROSSER & KEETON ON TORTS, supra, § 41, atpp. 267-268, fns. omitted, italics added.) Thus,"[t]he substantial factor language in BAJI No.3.76 makes it the preferable instruction over BAJINo. 375. [Citation.]" (Maupin v. Widling, supra,192 Cal. App. 3d 568, 575, 237 Cal. Rptr. 521.)We recognize that BAJI No. 3.76 is notperfectly phrased. The term "legal cause" may beconfusing. As part of the psycholinguistic studyreferred to above, the experimenters rewrote BAJINo. 3.75 to include the term "legal cause." 19 Thestudy found that "25% of the subjects who heard`legal cause' misinterpreted it as the opposite of an`illegal cause.' We would therefore recommendthat the term `legal cause' not be used in jurydeficiencies of the "substantial factor" test when used forcause-in-fact determinations.19The modified instruction read, "A legal cause ofan injury is something that triggers a natural chain ofevents that ultimately produces the injury. [&] Without thelegal cause, the injury would not occur." (PsycholinguisticStudy, supra, 79 COLUM. L. REV. at p. 1352.)MITCHELL V. GONZALEZ

INTRODUCTION 69instructions; instead, the simple term `cause'should be used, with the explanation that the lawdefines `cause' in its own particular way." 20(Psycholinguistic Study, supra, 79 COLUM. L.REV. at p. 1353.)Moreover, "advocates, judges, and scholars[have] capitalized upon the ambiguities andnuances of `substantial'" and have created newuses for the instruction. (PROSSER & KEETON ONTORTS (5th ed., 1988 supp.) § 41, p. 45.) One suchuse is "in cases in which a defendant's conduct isclearly a `but for' cause of plaintiff's harm, anddefense counsel contends that defendant's conductmade such an insubstantial contribution to theoutcome that liability should not be imposed. [&]... Used in this way, the `substantial factor' testbecomes an additional barrier to liability...." Id., atpp. 43-44.) Such a use of the "substantial factor"test undermines the principles of comparativenegligence, under which a party is responsible forhis or her share of negligence and the harm causedthereby. We are confident, however, that properargument by counsel and instruction by the courtwill prevent any confusion from occurring. 21The continued use of BAJI No. 3.75 as aninstruction on cause in fact is unwise. Theforegoing amply demonstrates that BAJI No. 3.75is grammatically confusing and conceptuallymisleading. Continued use of this instruction willlikely cause needless appellate litigation regardingthe propriety of the instructions in particularcases. Use of BAJI No. 3.76 will avoid much ofthe confusion inherent in BAJI No. 3.75. It isintelligible and easily applied. We thereforeconclude that BAJI No. 3.75, the so-calledproximate cause instruction, should bedisapproved and that the court erred when itrefused to give BAJI No. 3.76 and instead gave20Although we need not decide whether BAJI No.3.76 should be rewritten to eliminate the term "legalcause," we do suggest that the Committee on StandardJury Instructions consider whether the instruction could beimproved by adopting the suggestion of thePsycholinguistic Study or by otherwise modifying theinstruction.21Although we disapprove BAJI No. 3.75, nothingin this opinion should be read to discourage the Committeeon Standard Jury Instructions from drafting a new andproper "but for" instruction.BAJI No. 3.75. (See ante, p. 920 of 1 Cal. Rptr.2d, at p. 879 of 819 P.2d, fn. 7.)B. Prejudicial Effect of ErroneousInstructionHaving determined it was error to refuse togive BAJI No. 3.76 and instead give BAJI No.3.75, we must decide whether the error was soprejudicial as to require reversal.Under article VI, section 13 of the CaliforniaConstitution, if there is error in instructing thejury, the judgment shall be reversed only when thereviewing court, "after an examination of theentire cause, including the evidence," concludesthat the error "has resulted in a miscarriage ofjustice." Under the Constitution, we mustdetermine whether it is reasonably probable thatresult more favorable to the appealing party wouldhave been reached in the absence of error. (Peoplev. Watson (1956) 46 Cal. 2d 818, 836, 299 P.2d243.) Although there is no precise formula fordetermining the prejudicial effect of instructionalerror, we are guided by the five factorsenumerated in LeMons v. Regents of University ofCalifornia (1978) 21 Cal. 3d 869, 876, 148 Cal.Rptr. 355, 582 P.2d 946.The first factor we consider is the degree ofconflict in the evidence on the critical issue, herecause in fact. The evidence shows that Damechiedrowned, not only because he could not swim, butalso because he was placed in a position in whichhis inability to swim resulted in death. The jury'sverdict, amply supported by the evidence,indicates that Mr. and Mrs. Gonzales and their sonLuis were at least partially responsible forDamechie's predicament. Mr. and Mrs. Gonzalesfailed to supervise him adequately. Luis, afterassuring Damechie he would be careful andknowing that Damechie could not swim, climbedonto the paddleboard, rocked it, causing it to flipover, and failed to call for help despite thepresence of adults who might have been able tosave Damechie. The conflict in the evidence is notgreat. If properly instructed, it is reasonablyprobable that the jury would have founddefendants' behavior to have been a substantialfactor, and thus a cause in fact, in Damechie'sdeath.Second, we consider whether the jury askedfor a rereading of the erroneous instruction or ofrelated evidence. The jury did not make such arequest, but we note that jury received a copy ofthe instructions, making such a requestunnecessary.HULL V. MERCK

70 2. PROXIMATE CAUSEThird, we analyze the closeness of the jury'sverdict. The jury found on a vote of nine to threethat Jose Gonzales and Luis were negligent (i.e.,they breached a duty of care to Damechie).Likewise, the jury concluded on a vote of 11 to 1that Matilde Gonzales was negligent. Yet the juryunanimously concluded that neither the actions ofLuis nor Jose Gonzales caused Damechie's deathand, on a vote of 10 to 2, the jury found that theactions of Matilde Gonzales were not a cause ofthe death.The verdict as to causation was notparticularly close. It seems that the jury did followBAJI No. 3.75 but was misled by the instruction'sflaws: Having found the defendants negligent, it isillogical and inconsistent on this record toconclude that they were not a cause in fact ofDamechie's death. Accordingly, we conclude it isreasonably probable that the jury was confused byBAJI No. 3.75 and overemphasized the "but for"nature of the instruction, improperly focusing onthe factor operative at the closest temporalproximity to the time of death, Damechie'sinability to swim.Fourth, we consider whether defensecounsel's closing argument contributed to theinstruction's misleading effect. The closingargument was replete with references toDamechie's inability to swim, his own knowledgethat he could not swim, and his decisionnevertheless to venture out on the lake. Counselalso argued that Damechie's parents knew hecould not swim, yet they permitted him to go withthe Gonzaleses without determining whether theGonzaleses intended to take the childrenswimming, and argued that but for these facts,Damechie would not have drowned.The argument thus highlighted the conditiontemporally closest to the death, Damechie'sinability to swim, and factors related to it. Asdiscussed above, BAJI No. 3.75 improperlyemphasizes temporal and spatial proximity. Theargument thus contributed to the instruction'smisleading effect. It is reasonably probable that ifthe jury had received the substantial factorinstruction, counsel's argument would not havemisled the jury.Finally we consider the effect of otherinstructions in remedying the error BAJI No. 3.77was requested by both parties and given by thecourt. 22 This instruction did not remedy theconfusion caused by instructing the jury underBAJI No. 3.75. By frequently repeating the term"proximate cause" and by emphasizing that acause must be operating at the moment of injury,the instruction buttressed rather counteracted therestrictions on time and place inherent in the word"proximate." Thus, giving BAJI No. 3.77 did notcure the deficiencies of BAJI No. 3.75. (Hart v.Browne, supra, 103 Cal. App. 3d 947, 961, 163Cal. Rptr. 356.)Based on the foregoing analysis, we concludethat it is reasonably probable a result morefavorable to the plaintiffs would have resulted ifBAJI No. 3.75 had not been given.ConclusionWe conclude that BAJI No. 3.75 should bedisapproved, that the trial court erred when it gavethe instruction, and that such error wasprejudicial. Accordingly, the decision of the Courtof Appeal reversing the judgment in favor ofdefendants is affirmed.MOSK, PANELLI, ARABIAN, BAXTERand GEORGE, JJ., concur.KENNARD, Associate Justice, dissentingI dissent.The majority invalidates a jury instruction onproximate cause - an essential element of everytort case - that has been used in this state for some50 years and embodies well-established law. And,by delegating responsibility for definingproximate cause to the Committee on StandardJury Instructions, the majority neglects its duty toprovide guidance to trial courts and litigants. Thiscourt should give guidance to the committee, notseek guidance from it.The majority proscribes use of BAJI No. 3.75,a standard jury instruction that defines proximate22BAJI No. 3.77 provides: "There may be morethan one [proximate] [legal] cause of an injury. Whennegligent conduct of two or more persons contributesconcurrently as [proximate] [legal] causes of an injury, theconduct of each of said persons is a [proximate] [legal]cause of the injury regardless of the extent to which eachcontributes to the injury. A cause is concurrent if it wasoperative at the moment of injury and acted with anothercause to produce the injury. [It is no defense that thenegligent conduct of a person not joined as a party wasalso a [proximate] [legal] cause of the injury.]" As read,the instruction included the term "proximate" and the lastsentence.MITCHELL V. GONZALEZ

INTRODUCTION 71cause as "a cause which, in natural and continuoussequence, produces the injury and without whichthe injury would not have occurred." As I shallexplain, proximate cause includes two elements:an element of physical or logical causation,known as cause in fact, and a more normative orevaluative element, which the term "proximate"imperfectly conveys. The majority concedes thatthe concept of proximate cause includes these twodistinct elements, yet it limits its discussion ofBAJI No. 3.75 to that instruction "as it relates tocause in fact." (Maj. opn., ante, p. 917 of 1 Cal.Rptr. 2d, at p. 875 of 819 P.2d, fn. 4.) Havingfound BAJI No. 3.75 fatally deficient, themajority suggests that another instruction, BAJINo. 3.76, provides a satisfactory alternativeinstruction on cause in fact. Yet the majority doesnot embrace this other instruction as an adequateexpression of the second, more elusive element ofproximate cause. Because BAJI No. 3.75addresses both elements of proximate cause, themajority's decision leaves a significantunanswered question: Is there now a standard juryinstruction that trial courts can use to convey thesecond element?Legal scholars have long struggled with thecomplexities and subtleties of proximate cause.(See e.g., Smith, Legal Cause in Actions of Tort(1911) 25 HARV. L. REV. 103; Prosser, ProximateCause in California (1950) 38 CAL. L. REV. 369.)But the problem of proximate cause - when andhow to limit liability when cause and effectrelationships logically continue to infinity - hasremained intractable and the riddle of proximatecause has remained unsolved. (PROSSER &KEETON ON TORTS (5th ed. 1984) § 43, p. 300.)Although BAJI No. 3.75 is not a model of clarity,and a better instruction would certainly be mostwelcome, this court should not proscribe the useof BAJI No. 3.75 unless and until it proposes abetter instruction that includes both elements ofproximate cause, or at least provides meaningfulguidance on the subject. Because the majority hasdone neither, I would not hold in this case that thetrial court erred in instructing the jury with BAJINo. 3.75.ITo understand the issue presented in this case,it is necessary to examine the concept ofproximate cause and the manner in which BAJINo. 3.75 explains it to the jury.An essential element of any cause of actionfor negligence is that the defendant's act oromission was a cause of the plaintiff's injury.(E.g., PROSSER & KEETON ON TORTS, supra, § 41,p. 263; 6 WITKIN, SUMMARY OF CAL. LAW (9thed. 1988) Torts, § 965, p. 354.) To simply say,however, that the defendant's act or omission mustbe a necessary antecedent of the plaintiff's injurydoes not resolve the question of whether thedefendant should be held liable. As Prosser andKeeton observed: "The consequences of an act goforward to eternity, and the causes of an event goback to the dawn of human events, and beyond.But any attempt to impose responsibility uponsuch a basis would result in infinite liability for allwrongful acts, and would `set society on edge andfill the courts with endless litigation.'" (PROSSER& KEETON ON TORTS, supra, § 41, p. 264, quotingNorth v. Johnson (1894) 58 Minn. 242, 59 N.W.1012.)Accordingly, the law must impose limitationson liability other than simple causality. Theseadditional limitations are related not only to thedegree of connection between the act or omissionand the injury, but also to "our more or lessinadequately expressed ideas of what justicedemands, or of what is administratively possibleand convenient." (PROSSER & KEETON ON TORTS,supra, § 41, p. 264.) Thus, there are two basicelements of proximate cause: cause in fact and thelimitations imposed by "our more or lessinadequately expressed ideas of what justicedemands." For the sake of clarity andconvenience, I shall refer to the latter element asthe social evaluative process.BAJI No. 3.75, the instruction invalidated bythe majority, addresses both elements ofproximate cause. By stating that a proximatecause is one "without which the injury would nothave occurred" (or, in other words, that the injurywould not have occurred "but for" the defendant'sconduct), the instruction addresses the element ofcause in fact. The term "natural and continuoussequence" and the word "proximate," on the otherhand, address the social evaluative processbecause they require the jury, after determiningcause in fact, to reflect further on causation beforefinally deciding the issue of liability.IIThe majority disapproves BAJI No. 3.75because it contains the word "proximate," whichconnotes proximity in space or time. (Maj. opn.,ante, at pp. 918-919 of 1 Cal. Rptr. 2d, at pp. 876-77 of 819 P.2d.) The majority exaggerates thedifficulties presented by the use of the wordHULL V. MERCK

72 2. PROXIMATE CAUSE"proximate" and adopts a wholly inadequatesolution. Although proximity in time or space isnot relevant to cause in fact, it is frequently anappropriate consideration in determining thesecond element of proximate cause, the socialevaluative process. In the absence of aninstruction that captures that element at least aswell, use of BAJI No. 3.75 should not beforbidden.The majority relies on a statement fromProsser and Keeton objecting to the term"proximate" as "an unfortunate word, whichplaces an entirely wrong emphasis upon the factorof physical or mechanical closeness." (PROSSER &KEETON ON TORTS, supra, § 42, p. 273; italicsadded.) Yet by these words Prosser and Keeton donot assert that proximity in space and time isirrelevant to the ultimate determination ofproximate cause, but only that it should not beunduly emphasized. This necessarily implies thattemporal and spatial proximity does play somerole in the determination of proximate cause.Other authority supports the conclusion thattemporal and spatial proximity is frequently anappropriate consideration in determining thesocial evaluative process element of proximatecause. As a Court of Appeal recently remarked,"The time span between any alleged misconductand the harm is among the factors to beconsidered in determining the existence ofproximate cause." (Weissich v. County of Marin(1990) 224 Cal. App. 3d 1069, 1083, 274 Cal.Rptr. 342; see also Duffy v. City of Oceanside(1986) 179 Cal. App. 3d 666, 674, 224 Cal. Rptr.879; REST. 2D TORTS, § 433, com. f.) The same istrue of proximity in space. Foreseeability ofinjury, which is a concept that includes spatialnearness or remoteness, may be relevant to thetrier of fact's decision whether defendant's act"was a proximate or legal cause of the plaintiff'sinjury." (Ballard v. Uribe (1986) 41 Cal. 3d 564,572-573, fn. 6, 224 Cal. Rptr. 664, 715 P.2d 624.)Indeed, a case the majority cites recognizes thepotential relevance of temporal and spatialproximity. In Osborn v. City of Whittier, supra,103 Cal. App. 2d 609, 616, 230 P.2d 132, thecourt said that "[p]roximity in point of time orspace ... is of no importance except as it mayafford evidence for or against proximity ofcausation." (Italics added.)The majority directs its remaining criticism ofBAJI No. 3.75 to the statement in the instructionthat "a proximate cause is a cause which, innatural and continuous sequence, produces theinjury...." (Italics added.) Quoting from apsycholinguistic study, the majority characterizesthe instruction as befuddling because the term"natural and continuous sequence" precedes theverb it modifies, thus creating the impression thatthe cause itself is in a "natural and continuoussequence." (Maj. opn., ante, at p. 919 of 1 Cal.Rptr. 2d, at p. 878 of 819 P.2d.) But this perceivedproblem with the placement of the language couldbe readily corrected by simply rearranging thesentence to read: "a proximate cause of the injuryis a cause without which the injury would nothave occurred and which produces the injury innatural and continuous sequence."There is no immediate need to proscribe useof BAJI No. 3.75. Trial courts have beeninstructing juries in its language since 1969 (BAJINo. 3.75 (6th ed. 1977); BAJI No. 3.75 (5th ed.1969)), and, as the majority notes (maj. opn., ante,at p. 917 of 1 Cal. Rptr. 2d, at p. 876 of 819 P.2d,fn.4), it is almost identical to the standardinstruction used since 1943. (BAJI No. 104 (4thed. 1943).) The courts of this state have longconsidered it a correct statement of the law.(Fraijo v. Hartland Hospital (1979) 99 Cal. App.3d 331, 347, 160 Cal. Rptr. 246.) Despite itsflaws, BAJI No. 3.75 ought to be retained as anacceptable instruction in the absence of aproposed superior instruction.The majority asserts that disapproval of BAJINo. 3.75 is justified because "issues that areproperly referred to as questions of proximate orlegal cause are contained in other instructions.(See e.g., BAJI No. 3.79 [superseding causes].)"(Maj. opn., ante, at p. 914 of 1 Cal. Rptr. 2d, atpp. 873 of 819 P.2d, fn.2.) But a review of therelevant instructions (BAJI Nos. 3.77, 3.78, 3.79,and 3.80) shows that each addresses a specializedsituation. 1 None attempts a general definition of1 BAJI No. 3.77 states that there may be concurrent causes.BAJI No. 3.78 says that a defendant is not relieved ofliability when there are two independent causes. BAJI No.3.79 explains that a defendant is not relieved of liability bythe negligence of a third party if the defendant should haverealized that the third party might act as it did, or areasonable person would not have regarded the thirdparty's acts as highly extraordinary, or the conduct of thethird party was not extraordinarily negligent and was anormal consequence of the situation created by thedefendant. BAJI No. 3.80 addresses the situation when allof the defendants were negligent but the plaintiff cannotprove causation.MITCHELL V. GONZALEZ

INTRODUCTION 73the social evaluative process element of proximatecause, and thus none will fill the void resultingfrom the proscribing of BAJI No. 3.75.IIIThe majority favors the "substantial factor"instruction, BAJI No. 3.76, over the "but for"instruction, BAJI No. 3.75, as a definition ofcause in fact. But the majority makes no claimthat BAJI No. 3.76 adequately addresses thesocial evaluative process element, the mostcritical and elusive aspect of proximate cause.BAJI No. 3.76 states that "[a] legal cause ofinjury is a cause which is a substantial factor inbringing about the injury." The word "substantial"refers only to whether the defendant's act wasmore than a minimal element in the plaintiff'sinjury. (PROSSER & KEETON ON TORTS, supra, §41, p. 267; see also Prosser, Proximate Cause inCalifornia, supra, 38 CAL. L. REV. 369, 378-382.)Thus, BAJI No. 3.76 is essentially a cause-in-factinstruction. Because it requires only a singledetermination by the jury (whether the defendant'sconduct was a "substantial factor" in producingthe plaintiff's injury), BAJI No. 3.76 does notreflect as clearly as does BAJI No. 3.75 the twoseparate and distinct elements of proximate cause.When the "substantial factor" test of BAJINo. 3.76 is used as a means of setting limits onliability, it is no better than the "but for" test ofBAJI No. 3.75, the instruction invalidated by themajority, and it is just as problematic as the word"proximate" in BAJI No. 3.75. As Prosser andKeeton observed: "A number of courts have [usedsubstantial factor as a test of proximate cause, notjust cause in fact], apparently accepting the phraseas the answer to all prayers and some sort ofuniversal solvent. As applied to the fact ofcausation alone, the test though not ideal, may bethought useful. But when the `substantial factor' ismade to include all the ill-defined considerationsof policy which go to limit liability once causationin fact is found, it has no more definite meaningthan `proximate cause,' and it becomes ahindrance rather than a help." (PROSSER &KEETON ON TORTS, supra, § 42, p. 278.)Because its language is neither as clear nor ashelpful as it superficially appears, the "substantialfactor" (BAJI No. 3.76) instruction is no betterthan the "but for" instruction (BAJI No. 3.75). AsProsser and Keeton explained: "Even if`substantial factor' seemed sufficiently intelligibleas a guide in time past, however, the developmentof several quite distinct and conflicting meaningsfor the term `substantial factor' has created risk ofconfusion and misunderstanding, especially whena court, or an advocate or scholar, uses the phrasewithout explicit indication of which of itsconflicting meanings is intended." (PROSSER &KEETON ON TORTS, supra, 1988 supp. p. 43.) Forinstance, the term "substantial factor" may imposean additional barrier to liability when used tofocus on the respective degrees of the contributionof different causes of any injury. It may also beused to focus the inquiry on an actors motive orpurpose in the sense of attempting to provide ameans of distinguishing permissible andimpermissible motives. And it may be confusedwith the separate requirement that the plaintiffprove the elements of the case by a preponderanceof the evidence. (Id. at pp. 43-45.)Thus, the majority fails to recognize thatBAJI No. 3.76 is no better than BAJI No. 3.75 asa comprehensive proximate cause instruction.IVBy delegating to the Committee on StandardJury Instructions 2 the responsibility for definingproximate cause, the court neglects its duty, as thehighest court in this state, to provide guidance tothe state's trial courts.It is easy, as the majority has done, to findfault with existing formulations of proximatecause. It is quite another matter, however, toactually address and resolve the subtle andcomplex issues presented by the concept ofproximate cause. The Committee on Standard JuryInstructions will necessarily be in the samesituation as are trial judges: "The trial judge is inthe dilemma that a failure to instruct at all onproximate cause is very likely to be error, while2 The committee's full name is The Committee on StandardJury Instructions, Civil, of the Superior Court of LosAngeles County, California. Formed in 1938, thecommittee includes among its members attorneys as wellas superior court judges. The committee has performedinvaluable service by drafting standard or pattern juryinstructions, based primarily on published appellatedecisions, for use in civil jury trials. Although no statutemandates the use of the instructions, the Judicial Councilhas recommended their use, when applicable, "unless [thetrial judge] finds that a different instruction would moreadequately, accurately or clearly state the law." (Cal.Standards Jud. Admin., § 5.) The Judicial Council hascautioned that trial judges should give jury instructionsproposed by the parties' attorneys "no less consideration"than the committee's standard instructions. (Ibid.)HULL V. MERCK

74 2. PROXIMATE CAUSEany instruction he [or she] gives runs the risk ofbeing so complicated and vulnerable to attack inits ideas or language that it invites appeal."(Prosser, Proximate Cause in California, supra,38 CAL. L. REV. at pp. 423-424.)Unless and until this court is prepared to offera better alternative or provide meaningfulguidance on both elements of proximate cause, Iwould not invalidate BAJI No. 3.75. Accordingly,I would hold that the trial court did not err when itinstructed the jury in the terms of BAJI No. 3.75.Questions and Notes1. Although she writes in the minority in thiscase, Justice Kennard articulates the view of mostjurisdictions on the law of proximate cause. Asone court stated,The “substantial factor” test has notturned out to be the hoped for panacea forall causation in fact problems. Over theyears, it has taken on several distinct andconflicting meanings. Harper, supra, §20.6, at 180-82; Keeton, supra, § 41, at43-45 (Supp.1988). While severaljurisdictions have adopted the“substantial factor” test as their sole testfor determining causation in fact, see,e.g., * * * Knodle v. Waikiki GatewayHotel, 69 Haw. 376, 742 P.2d 377, 386-87(1987); Busko v. DeFilippo, 162 Conn.462, 294 A.2d 510, 512 (1972), othershave declined to jettison the “but for”test. See, e.g., Culver v. Bennett, 588A.2d 1094, 1098-99 (Del.1991); Fussellv. St. Clair, 120 Idaho 591, 818 P.2d 295,299 (1991).Waste Management, Inc. of Tennessee v. SouthCentral Bell Telephone Co., 15 S.W.3d 425(Tenn.Ct.App. 1997).§ A. But-For Causation (Causein-Fact)1. The Traditional Burden of ProofHULL v. MERCK & CO.758 F.2d 1474 (11th Cir. 1985)PER CURIAMIn this diversity case applying Georgia law,Jim Dale Hull appeals from a jury verdict for theappellee, Merck & Company, Inc. (Merck), in theUnited States District Court for the NorthernDistrict of Georgia. Finding no error in the trial ofthe case, we affirm.Merck operates three adjacent chemical plantsin Albany, Georgia. Waste chemicals are expelledvia three fiberglass sewer pipes which meet at alarge junction before emptying into a one-milliongallonneutralizing pool. In 1980, Merckdetermined that the waste lines neededreplacement. It solicited bids from four companiesspecializing in such work, including AugustaFiberglass Coatings (AFC), the appellant'semployer. Merck cautioned the bidders that Merckplanned to operate the factories throughout thereplacement activity, and that bypass pipes andvarious types of safety equipment would benecessary to the work. Before bidding, AFC alsoinspected the job site. AFC's bid was accepted andHull commenced supervision of the job onSeptember 4, 1980.AFC relayed Merck's cautionary instructionsto its employees and provided AFC workers, asrequired by Merck, with rubber boots, pants, coatsand gloves, as well as goggles and masks. Hull,who had long experience working with chemicals,initially wore some of the equipment but after afew days ceased this practice. Many of Hull'scoworkers used the safety equipment extensively.At an October 17, 1984 employee meeting, AFCnoted a lack of full compliance and reminded theemployees of the necessity of wearing theprotective gear.Although the evidence was conflicting, itappears that Hull spent about four hours each dayin the trench which was dug to expose thepipelines. He regularly breathed gases andallowed liquid to spill on his clothing and body.Hull noted at the time that the chemical fumes inand around the pipes were a health hazard. Hismost severe exposure occurred on September 22,1980. On that morning, Hull stuck his head insidethe 20-inch pipe connecting lines 1 and 2 to line 3.The pipes were supposed to carry only a twoMITCHELL V. GONZALEZ

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 75percent solution of waste, but because of anaccidental spill in the factories, the pipe containedat that moment an 80 to 85 percent solution oftoluene. Hull became dizzy and nauseous. As aresult, he received oxygen at the plant infirmary.Within a year after the completion of theMerck contract, Hull suffered bone marrowdepression, followed by leukemia. He sued Merckfor $2,500,000.00 plus punitive damages, alleging(1) that Merck had negligently failed to disclosethe nature and health dangers of the wastechemicals carried by the pipelines; (2) that Merckhad negligently failed to inform him adequately ofthe necessity for wearing the various types ofprotective gear during construction; (3) that theintermittent discharge without warning of highconcentrationspills into the pipelines resultedfrom the negligent operation of the factories; and(4) that Merck's decision to continue plantoperations and consequently the flow of wastechemicals during the pipelines replacementproject amounted to negligence. The jury trialcommenced on January 23, 1984 and resulted in averdict for Merck.* * *Evidence of Exposure to BenzeneThe waste pipelines contained trace amountsof benzene, a compound widely considered topose risks of cancer. Before the trial, Hull deposeda medical expert, Dr. Cohen, who stated thatHull's disease was caused by benzene, toluene orboth. On questioning by Merck's counsel,however, Dr. Cohen admitted that in reaching thisconclusion he had made two assumptions: "one,that [Hull's] toxic exposure was significant....And, two, that it caused his acute leukemia."Deposition of Dr. Cohen pp. 24-25.The appellant now challenges the districtcourt's exclusion of this deposition evidence at thetrial. The district court was well within itsdiscretion in excluding the evidence. E.g., UnitedStates v. Lopez, 543 F.2d 1156 (5th Cir. 1976),cert. denied, 429 U.S. 1111, 97 S. Ct. 1150, 51 L.Ed. 2d 566 (1977). Here, the assumptions madeby Dr. Cohen rendered his seemingly firm opinionquite speculative, and the danger of irrelevance isclear. Such potentially confusing testimony is atodds with the purposes of expert testimony asenvisioned in FED. R. EVID. 702. The districtcourt's decision was not "manifestly erroneous,"543 F.2d at 1158, especially considering that onlyparts of the deposition were excluded, and that Dr.Cohen was not barred from testifying before thejury and thereby subjecting himself to crossexamination.Hull also contends the court erred in failing toinstruct the jury as to whether benzene exposurecaused Hull's leukemia. But Hull's own expertadmitted at the trial that the concentrations ofbenzene to which Hull claimed to be exposedcould not have precipitated the disease. There wasno evidence to support submission of such aninstruction to the jury, and the district court didnot err in refusing to give the instruction.Questions and Notes1. For a survey of the problem of establishingcausation in toxic tort cases, see Matteo, HowMany Mice Must Die?, 7 Temp. Envtl. L. & Tech.J. 103 (1988); Shirley K. Duffy, "RiskAssessment": a Methodology for Deciding Claimsfor Increased Risk of Cancer, 11 Penn St. Envtl.L. Rev. 213 (2003); Alani Golanski, GeneralCausation at a Crossroads in Toxic Tort Cases,108 Penn St. L. Rev. 479 (2003); Robert W.Loewen, Causation in Toxic Tort Cases: Has theBar Been Lowered? 17 Nat. Resources & Env't228 (2003).2. Critics of the tort system often point towhat they call “junk science” as the justificationfor imposing liability; a prime example is the $4billion settlement for the class action brought bywomen claiming injury from breast implants. SeeDavid E. Bernstein, The Breast Implant Fiasco,87 Calif. L. Rev. 457 (1999).3. For a general discussion of the causationissue as it applies to the burgeoning field of toxictort litigation, see Shelly Brinker, Opening theDoor to the Indeterminate Plaintiff: An Analysisof the Causation Barriers Facing EnvironmentalToxic Tort Plaintiffs, 46 UCLA L. Rev. 1289(1999); Jon R. Pierce and Terrence Sexton,Toxicogenomics: Toward the Future of Toxic TortCausation, 5 N.C. J.L. & Tech. 33 (2003). Anexample of a toxic tort case close to home (andthe problems the plaintiffs faced in establishingliability, see Eric DeJure Wilson, Hope forHanford Downwinders?: the Ninth Circuit'sRuling in ... (In re Hanford Nuclear ReservationLitig.), 82 Or. L. Rev. 581 (2003).4. One of the complaints about modern tortSUMMERS V. TICE

76 2. PROXIMATE CAUSElitigation is that it degenerates into a "battle of theexperts." One proposal to alleviate the spectacleof partisan experts-for-hire is to encourage thejudges to appoint neutral experts or panels ofexperts. See Karen Butler Reisinger, Note. Court-Appointed Expert Panels: A Comparison of TwoModels, 32 Ind. L. Rev. 225 (1998).REYNOLDS v. TEXAS & PACIFICRAILWAY CO.37 La. Ann. 694 (1885)FENNER, J.The plaintiff and his wife claim damages forthe defendant company for injuries suffered by thewife and caused by the alleged negligence of thecompany.Mr. Reynolds, with his wife, sister-in-law,three small children and two colored attendants,had purchased tickets as passengers on thedefendant road, and were at the depot at MorroghStation for the purpose of boarding the east-boundtrain, which was due at that station at aboutmidnight, but, being behind time, did not reachthere till about two o'clock in the morning.* * *Several witnesses testif[ied] that passengerswere warned to "hurry up." Mrs. Reynolds, acorpulent woman, weighing two hundred and fiftypounds, emerging from the bright light of thesitting room, which naturally exaggerated theoutside darkness, and hastening down theseunlighted steps, made a misstep in some way andwas precipitated beyond the narrow platform infront and down the slope beyond, incurring theserious injuries complained of.Upon what grounds to the company claimexemption from liability?1st. It denies the fact of negligence on itspart, and contends that the way was safe and thelights sufficient.We have already disposed of this contention,and have found that the light was insufficient andthat this rendered the way insecure....2d. It contends that, even conceding thenegligence of the company in the above respect,it does not follow that the accident to plaintiffwas necessarily caused thereby, but that shemight well have made the misstep and fallen evenhad it been broad daylight. We concede that thisis possible, and recognize the distinction betweenpost hoc and propter hoc. But where thenegligence of the defendant greatly multiplies thechances of accident to the plaintiff, and is of acharacter naturally leading to its occurrence, themere possibility that it might have happenedwithout the negligence is not sufficient to breakthe chain of cause and effect between thenegligence and the injury. Courts, in suchmatters, consider the natural and ordinary courseof events, and do not indulge in fancifulsuppositions. The whole tendency of the evidenceconnects the accident with the negligence.* * *Judgment affirmed.2. Modifying the But-For CausationRequirementa. Excusable Inability to Identify theDefendantSUMMERS v. TICE33 Cal. 2d 80, 199 P.2d 1 (1948)CARTER, JusticeEach of the two defendants appeals from ajudgment against them in an action for personalinjuries. Pursuant to stipulation the appeals havebeen consolidated.Plaintiff's action was against both defendantsfor an injury to his right eye and face as the resultof bring struck by bird shot discharged from ashotgun. The case was tried by the court without ajury and the court found that on November 20,1945, plaintiff and the two defendants wereHULL V. MERCK

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 77hunting quail on the open range. Each of thedefendants was armed with a 12 gauge shotgunloaded with shells containing 7 ½ size shot. Priorto going hunting plaintiff discussed the huntingprocedure with defendants, indicating that theywere to exercise care when shooting and to "keepin line." In the course of hunting plaintiffproceeded up a hill, thus placing the hunters at thepoints of a triangle. The view of defendants withreference to plaintiff was unobstructed and theyknew his location. Defendant Tice flushed a quailwhich rose in flight to a ten foot elevation andflew between plaintiff and defendants. Bothdefendants shot at the quail, shooting in plaintiff'sdirection. At that time defendants were 75 yardsfrom plaintiff. One shot struck plaintiff in his eyeand another in his upper lip. Finally it was foundby the court that as the direct result of theshooting by defendants the shots struck plaintiffas above mentioned and that defendants werenegligent in so shooting and plaintiff was notcontributorily negligent.* * *The problem presented in this case is whetherthe judgment against both defendants may stand.It is argued by defendants that they are not jointtortfeasors, and thus jointly and severally liable,as they were not acting in concert, and that thereis not sufficient evidence to show whichdefendant was guilty of the negligence whichcaused the injuries the shooting by Tice or that bySimonson. Tice argues that there is evidence toshow that the shot which struck plaintiff camefrom Simonson's gun because of admissionsallegedly made by him to third persons and noevidence that they came from his gun. Further inconnection with the latter contention, the courtfailed to find on plaintiff's allegation in hiscomplaint that he did not know which one was atfault did not find which defendant was guilty ofthe negligence which caused the injuries toplaintiff.Considering the last argument first, webelieve it is clear that the court sufficiently foundon the issue that defendants were jointly liableand that thus the negligence of both was the causeof the injury or to that legal effect. It found thatboth defendants were negligent and "That as adirect and proximate result of the shots fired bydefendants, and each of them, a birdshot pelletwas caused to and did lodge in plaintiff's right eyeand that another birdshot pellet was caused to anddid lodge in plaintiff's upper lip." In so doing thecourt evidently did not give credence to theadmissions of Simonson to third persons that hefired the shots, which it was justified in doing. Itthus determined that the negligence of bothdefendants was the legal cause of the injury orthat both were responsible. Implicit in suchfinding is the assumption that the court wasunable to ascertain whether the shots were fromthe gun of one defendant or the other or one shotfrom each of them. The one shot that enteredplaintiff's eye was the major factor in assessingdamages and that shot could not have come fromthe gun of both defendants. It was from one or theother only.It has been held that where a group of personsare on a hunting party, or otherwise engaged in theuse of firearms, and two of them are negligent infiring in the direction of a third person who isinjured thereby, both of those so firing are liablefor the injury suffered by the third person,although the negligence of only one of them couldhave caused the injury. Moore v. Foster, Miss.,180 So. 73; Oliver v. Miles, Miss., 110 So. 666, 50A.L.R. 357; Reyher v. Mayne, 90 Colo. 856, 10P.2d 1109; Benson v. Ross, 143 Mich. 452, 106N.W. 1120, 114 Am. St. Rep. 675. The same rulehas been applied in criminal cases (State v.Newberg, 129 Or. 564, 278 P. 568, 63 A.L.R.1225), and both drivers have been held liable forthe negligence of one where they engaged in aracing contest causing an injury to a third person.Saisa v. Lilja, 1 Cir., 76 F.2d 380. These casesspeak of the action of defendants as being inconcert as the ground of decision, yet it wouldseem they are straining that concept and the morereasonable basis appears in Oliver v. Miles, supra.There two persons were hunting together. Bothshot at some partridges and in so doing shotacross the highway injuring plaintiff who wastravelling on it. The court stated they were actingin concert and thus both were liable. The courtthen stated (110 So. 668): "We think that ... eachis liable for the resulting injury to the boy,although no one can say definitely who actuallyshot him. To hold otherwise would be to exonerateboth from liability, although each was negligent,and the injury resulted from such negligence."(Emphasis added.) 110 So. p. 668. It is said in theRESTATEMENT: "For harm resulting to a thirdperson from the tortious conduct of another, aperson is liable if he ... (b) knows that the other'sconduct constitutes a breach of duty and givessubstantial assistance or encouragement to theother so to conduct himself, or (c) givesSUMMERS V. TICE

78 2. PROXIMATE CAUSEsubstantial assistance to the other inaccomplishing a tortious result and his ownconduct, separately considered, constitutes abreach of duty to the third person." (REST., TORTS,sec. 876(b)(c).) Under subsection (b) the exampleis given: "A and B are members of a hunting party.Each of them in the presence of the other shootsacross a public road at an animal this beingnegligent as to persons on the road. A hits theanimal. B's bullet strikes C, a traveler on the road.A is liable to C." (REST., TORTS, Sec. 876(b),Com., Illus. 3.) An illustration given undersubsection (c) is the same as above except thefactor of both defendants shooting is missing andjoint liability is not imposed. It is further said that:"If two forces are actively operating, one becauseof the actor's negligence, the other not because ofany misconduct on his part, and each of itselfsufficient to bring about harm to another, theactor's negligence may be held by the jury to be asubstantial factor in bringing it about." (REST.,TORTS, sec. 432.) Dean Wigmore has this to say:"When two or more persons by their acts arepossibly the sole cause of a harm, or when two ormore acts of the same person are possibly the solecause, and the plaintiff has introduced evidencethat the one of the two persons, or the one of thesame person's two acts, is culpable, then thedefendant has the burden of proving that the otherperson, or his other act, was the sole cause of theharm. (b) ... The real reason for the rule that eachjoint tortfeasor is responsible for the wholedamage is the practical unfairness of denying theinjured person redress simply because he cannotprove how much damage each did, when it iscertain that between them they did all; let them bethe ones to apportion it among themselves. Since,then, the difficulty of proof is the reason, the ruleshould apply whenever the harm has pluralcauses, and not merely when they acted inconscious concert...." (WIGMORE, SELECT CASESON THE LAW OF TORTS, sec. 153.) SimilarlyProfessor Carpenter has said: "[Suppose] the casewhere A and B independently shoot at C and butone bullet touches C's body. In such case, suchproof as is ordinarily required that either A or Bshot C, of course fails. It is suggested that thereshould be a relaxation of the proof required of theplaintiff ... where the injury occurs as the result ofone where more than one independent force isoperating, and it is impossible to determine thatthe force set in operation by defendant did not infact constitute a cause of the damage, and where itmay have caused the damage, but the plaintiff isunable to establish that it was a cause." (20 CAL.L. REV. 406.)When we consider the relative position of theparties and the results that would flow if plaintiffwas required to pin the injury on one of thedefendants only, a requirement that the burden ofproof on that subject be shifted to defendantsbecomes manifest. They are both wrongdoers bothnegligent toward plaintiff. They brought about asituation where the negligence of one of theminjured the plaintiff, hence it should rest withthem each to absolve himself if he can. Theinjured party has been placed by defendants in theunfair position of pointing to which defendantcaused the harm. If one can escape the other mayalso and plaintiff is remediless. Ordinarilydefendants are in a far better position to offerevidence to determine which one caused theinjury. This reasoning has recently found favor inthis Court. In a quite analogous situation thisCourt held that a patient injured whileunconscious on an operating table in a hospitalcould hold all or any of the persons who had anyconnection with the operation even though hecould not select the particular acts by theparticular person which led to his disability.Ybarra v. Spangard, 25 Cal. 2d 486, 154 P.2d 687,162 A.L.R. 1258. There the Court was consideringwhether the patient could avail himself of res ipsaloquitur, rather than where the burden of prooflay, yet the effect of the decision is that plaintiffhas made out a case when he has producedevidence which gives rise to an inference ofnegligence which was the proximate cause of theinjury. It is up to defendants to explain the causeof the injury. It was there said: "If the doctrine isto continue to serve a useful purpose, we shouldnot forget that "the particular force and justice ofthe rule, regarded as a presumption throwing uponthe party charged the duty of producing evidence,consists in the circumstance that the chiefevidence of the true cause, whether culpable orinnocent, is practically accessible to him butinaccessible to the injured person." 25 Cal. 2d atpage 490, 154 P.2d at page 689, 162 A.L.R. 1258.Similarly in the instant case plaintiff is not able toestablish which of defendants caused his injury.* * *In addition to that, however, it should bepointed out that the same reasons of policy andjustice shift the burden to each of defendants toabsolve himself if he can relieving the wrongedperson of the duty of apportioning the injury to aSINDELL V. ABBOT LABORATORIES

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 79particular defendant, apply here where we areconcerned with whether plaintiff is required tosupply evidence for the apportionment ofdamages. If defendants are independenttortfeasors and thus each liable for the damagecaused by him alone, and, at least, where thematter of apportionment is incapable of proof, theinnocent wronged party should not be deprived ofhis right to redress. The wrongdoers should be leftto work out between themselves anyapportionment. See, Colonial Ins. Co., v.Industrial Acc. Com., 29 Cal. 2d 79, 172 P.2d 884.Some of the cited cases refer to the difficulty ofapportioning the burden of damages between theindependent tortfeasors, and say that wherefactually a correct division cannot be made, thetrier of fact may make it the best it can, whichwould be more or less a guess, stressing the factorthat the wrongdoers are not a position to complainof uncertainty. California Orange Co. v. RiversideP.C. Co., supra.* * *The judgment is affirmed.GIBSON, C.J., and SHENK, EDMONDS,TRAYNOR, SCHAUER, and SPENCE, JJ.,concur.SINDELL v. ABBOTTLABORATORIES26 Cal. 3d 588, 163 Cal. Rptr. 132, 607 P.2d924 (1980)MOSK, JusticeThis case involves a complex problem bothtimely and significant: may a plaintiff, injured asthe result of a drug administered to her motherduring pregnancy, who knows the type of druginvolved but cannot identify the manufacturer ofthe precise product, hold liable for her injuries amaker of a drug produced from an identicalformula?Plaintiff Judith Sindell brought an actionagainst eleven drug companies and Does 1through 100, on behalf of herself and otherwomen similarly situated. The complaint allegesas follows:Between 1941 and 1971, defendants wereengaged in the business of manufacturing,promoting, and marketing diethylstilbesterol(DES), a drug which is a synthetic compound ofthe female hormone estrogen. The drug wasadministered to plaintiff's mother and the mothersof the class she represents, 1 for the purpose of1 The plaintiff class alleged consists of "girls and womenwho are residents of California and who have beenexposed to DES before birth and who may or may notknow that fact or the dangers" to which they wereexposed. Defendants are also sued as representatives of aclass of drug manufacturers which sold DES after 1941.preventing miscarriage. In 1947, the Food andDrug Administration authorized the marketing ofDES as a miscarriage preventative, but only on anexperimental basis, with a requirement that thedrug contain a warning label to that effect.DES may cause cancerous vaginal andcervical growths in the daughters exposed to itbefore birth, because their mothers took the drugduring pregnancy. The form of cancer from whichthese daughters suffer is known asadenocarcinoma, and it manifests itself after aminimum latent period of 10 or 12 years. 2 It is afast-spreading and deadly disease, and radicalsurgery is required to prevent it from spreading.DES also causes adenosis, precancerous vaginaland cervical growths which may spread to otherareas of the body. The treatment for adenosis iscauterization, surgery, or cryosurgery. Womenwho suffer from this condition must be monitoredby biopsy or colposcopic examination twice ayear, a painful and expensive procedure.Thousands of women whose mothers receivedDES during pregnancy are unaware of the effectsof the drug.* * *Plaintiff [Sindell] seeks compensatorydamages of $1 million and punitive damages of$10 million for herself. For the members of herclass, she prays for equitable relief in the form ofan order that defendants warn physicians and2 [Ed. note: The evidence showed that the rate of canceramong "DES daughters" was .1-.4%.]SUMMERS V. TICE

80 2. PROXIMATE CAUSEothers of the danger of DES and the necessity ofperforming certain tests to determine the presenceof disease caused by the drug, and that theyestablish free clinics in California to performsuch tests.* * *This case is but one of a number filedthroughout the country seeking to hold drugmanufacturers liable for injuries allegedlyresulting from DES prescribed to the plaintiffs'mothers since 1947. 3 According to a note in theFordham Law Review, estimates of the number ofwomen who took the drug during pregnancy rangefrom 1 ½ million to 3 million. Hundreds, perhapsthousands, of the daughters of these women sufferfrom adenocarcinoma, and the incidence ofvaginal adenosis among them is 30 to 90 percent.(Comment, DES and a Proposed Theory ofEnterprise Liability (1978) 46 FORDHAM L. REV.963, 964-967 (hereafter Fordham Comment).)Most of the cases are still pending. With twoexceptions, 4 those that have been decided resultedin judgments in favor of the drug companydefendants because of the failure of the plaintiffsto identify the manufacturer of the DESprescribed to their mothers. 5 The same result wasreached in a recent California case. (McCreery v.Eli Lilly & Co. (1978) 87 Cal. App. 3d 77, 82-84,150 Cal. Rptr. 730.) The present action is anotherattempt to overcome this obstacle to recovery.We begin with the proposition that, as ageneral rule, the imposition of liability dependsupon a showing by the plaintiff that his or her3 DES was marketed under many different trade names.4 In a recent New York case a jury found in the plaintiff'sfavor in spite of her inability to identify a specificmanufacturer of DES. An appeal is pending. (Bichler v.Eli Lilly and Co. (Sup. Ct. N.Y. 1979).) A Michiganappellate court recently held that plaintiffs had stated acause of action against several manufacturers of DES eventhough identification could not be made. (Abel v. Eli Lillyand Co. (decided Dec. 5, 1979) Docket No. 60497.) Thatdecision is on appeal to the Supreme Court of Michigan.injuries were caused by the act of the defendant orby an instrumentality under the defendant's control.The rule applies whether the injury resulted from anaccidental event (e.g., Shunk v. Bosworth (6th Cir.1964) 334 F.2d 309) or from the use of a defectiveproduct. (E.g., Wetzel v. Eaton Corporation (D.Minn. 1973) 62 F.R.D. 22, 29-30; Garcia v.Joseph Vince Co. (1978) 84 Cal. App. 3d 868,873-875, 148 Cal. Rptr. 843; and see annot.collection of cases in 51 A.L.R.3d 1344, 1351; 1HURSH AND BAILEY, AMERICAN LAW OFPRODUCTS LIABILITY 2D (1974) p. 125.)There are, however, exceptions to this rule.Plaintiff's complaint suggests several bases uponwhich defendants may be held liable for herinjuries even though she cannot demonstrate thename of the manufacturer which produced theDES actually taken by her mother. The first ofthese theories, classically illustrated by Summersv. Tice (1948) 33 Cal. 2d 80, 199 P.2d 1, places theburden of proof of causation upon tortiousdefendants in certain circumstances. The secondbasis of liability emerging from the complaint isthat defendants acted in concert to cause injury toplaintiff. There is a third and novel approach tothe problem, sometimes called the theory of"enterprise liability," but which we prefer todesignate by the more accurate term of"industry-wide" liability, 6 which might obviate thenecessity for identifying the manufacturer of theinjury-causing drug. We shall conclude that thesedoctrines, as previously interpreted, may not beapplied to hold defendants liable under theallegations of this complaint. However, we shallpropose and adopt a fourth basis for permittingthe action to be tried, grounded upon an extensionof the Summers doctrine.IPlaintiff places primary reliance upon caseswhich hold that if a party cannot identify which oftwo or more defendants caused an injury, theburden of proof may shift to the defendants toshow that they were not responsible for the harm.This principle is sometimes referred to as the"alternative liability" theory.The celebrated case of Summers v. Tice,5 E.g., Gray v. United States (S.D. Tex. 1978) 445 F.Supp.337. In their briefs, defendants refer to a number of othercases in which trial courts have dismissed actions in DEScases on the ground stated above.6 The term "enterprise liability" is sometimes used broadlyto mean that losses caused by an enterprise should beborne by it. Klemme, Enterprise Liability (1976) 47 COLO.L. REV. 153, 158.BROWN V. SUPERIOR COURT

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 81supra, 33 Cal. 2d 80, 199 P.2d 1, a unanimousopinion of this court, best exemplifies the rule. InSummers, the plaintiff was injured when twohunters negligently shot in his direction. It couldnot be determined which of them had fired theshot which actually caused the injury to theplaintiff's eye, but both defendants werenevertheless held jointly and severally liable forthe whole of the damages. We reasoned that bothwere wrongdoers, both were negligent toward theplaintiff, and that it would be unfair to requireplaintiff to isolate the defendant responsible,because if the one pointed out were to escapeliability, the other might also, and theplaintiff-victim would be shorn of any remedy. Inthese circumstances, we held, the burden of proofshifted to the defendants, "each to absolve himselfif he can." (Id., p. 86, 199 P.2d p. 4.) We statedthat under these or similar circumstances adefendant is ordinarily in a "far better position" tooffer evidence to determine whether he or anotherdefendant caused the injury.In Summers, we relied upon Ybarra v.Spangard (1944) 25 Cal. 2d 486, 154 P.2d 687.There, the plaintiff was injured while he wasunconscious during the course of surgery. Hesought damages against several doctors and anurse who attended him while he wasunconscious. We held that it would beunreasonable to require him to identify theparticular defendant who had performed thealleged negligent act because he was unconsciousat the time of the injury and the defendantsexercised control over the instrumentalities whichcaused the harm. Therefore, under the doctrine ofres ipsa loquitur, an inference of negligence arosethat defendants were required to meet byexplaining their conduct. 77 Other cases cited by plaintiff for the proposition stated inSummers are only peripherally relevant. For example, inRay v. Alad Corporation (1977) 19 Cal. 3d 22, 136 Cal.Rptr. 574, 560 P.2d 3, the plaintiff brought an action instrict liability for personal injuries sustained when he fellfrom a defective ladder manufactured by the defendant'spredecessor corporation. We held that, although under thegeneral rule governing corporate succession the defendantcould not be held responsible, nevertheless a "specialdeparture" from that rule was justified in the particularcircumstances. The defendant had succeeded to the goodwill of the manufacturer of the ladder, and it could obtaininsurance against the risk of liability, whereas the plaintiffwould be left without redress if he could not hold thedefendant liable. The question whether one corporationThe rule developed in Summers has beenembodied in the RESTATEMENT OF TORTS. (REST.2D TORTS, § 433B, subsec. (3)) 8 Indeed, theSummers facts are used as an illustration (p. 447).Defendants assert that these principles areinapplicable here. First, they insist that apredicate to shifting the burden of proof underSummers-Ybarra is that the defendants must havegreater access to information regarding the causeof the injuries than the plaintiff, whereas in thepresent case the reverse appears.Plaintiff does not claim that defendants are ina better position than she to identify themanufacturer of the drug taken by her mother or,indeed, that they have the ability to do so at all,but argues, rather, that Summers does not imposesuch a requirement as a condition to the shiftingof the burden of proof. In this respect we believeplaintiff is correct.In Summers, the circumstances of theaccident themselves precluded an explanation ofits cause. To be sure, Summers states thatdefendants are "[o]rdinarily ... in a far betterposition to offer evidence to determine which onecaused the injury" than a plaintiff (33 Cal. 2d 80,at p. 86, 199 P.2d 1 at p. 4), but the decision doesnot determine that this "ordinary" situation waspresent. Neither the facts nor the language of theopinion indicate that the two defendants,simultaneously shooting in the same direction,were in a better position than the plaintiff toascertain whose shot caused the injury. As theopinion acknowledges, it was impossible for thetrial court to determine whether the shot whichentered the plaintiff's eye came from the gun ofshould, for policy reasons, be answerable for the productsmanufactured by its predecessor is a different issue thanthat we describe above.8 Section 433B, subsection (3) of the RESTATEMENTprovides: "Where the conduct of two or more actors istortious, and it is proved that harm has been caused to theplaintiff by only one of them, but there is uncertainty as towhich one has caused it, the burden is upon each suchactor to prove that he has not caused the harm." Thereason underlying the rule is "the injustice of permittingproved wrongdoers, who among them have inflicted aninjury upon the entirely innocent plaintiff, to escapeliability merely because the nature of their conduct and theresulting harm has made it difficult or impossible to provewhich of them has caused the harm." (REST. 2D TORTS, §433B, com. f, p. 446.)SINDELL V. ABBOT LABORATORIES

82 2. PROXIMATE CAUSEone defendant or the other. Nevertheless, burdenof proof was shifted to the defendants.Here, as in Summers, the circumstances of theinjury appear to render identification of themanufacturer of the drug ingested by plaintiff'smother impossible by either plaintiff ordefendants, and it cannot reasonably be said thatone is in a better position than the other to makethe identification. Because many years elapsedbetween the time the drug was taken and themanifestation of plaintiff's injuries she, and manyother daughters of mothers who took DES, areunable to make such identification. 9 Certainlythere can be no implication that plaintiff is at faultin failing to do so the event occurred whileplaintiff was in utero, a generation ago. 10On the other hand, it cannot be said withassurance that defendants have the means to makethe identification. In this connection, they pointout that drug manufacturers ordinarily have nodirect contact with the patients who take a drugprescribed by their doctors. Defendants sell towholesalers, who in turn supply the product tophysicians and pharmacies. Manufacturers do notmaintain records of the persons who take thedrugs they produce, and the selection of themedication is made by the physician rather thanthe manufacturer. Nor do we conclude that theabsence of evidence on this subject is due to thefault of defendants. While it is alleged that theyproduced a defective product with delayed effectsand without adequate warnings, the difficulty orimpossibility of identification results primarily9 The trial court was not required to determine whetherplaintiff had made sufficient efforts to establishidentification since it concluded that her failure to do sowas fatal to her claim. The court accepted at face valueplaintiff's assertion that she could not make theidentification, and for purposes of this appeal we make thesame assumption.10Defendants maintain that plaintiff is in a betterposition than they are to identify the manufacturer becauseher mother might recall the name of the prescribingphysician or the hospital or pharmacy where the drugoriginated, and might know the brand and strength ofdosage, the appearance of the medication, or other detailsfrom which the manufacturer might be identified, whereasthey possess none of this information. As we point out infootnote 12, we assume for purposes of this appeal thatplaintiff cannot point to any particular manufacturer as theproducer of the DES taken by her mother.from the passage of time rather than from theirallegedly negligent acts of failing to provideadequate warnings. Thus Haft v. Lone Palm Hotel(1970) 3 Cal. 3d 756, 91 Cal. Rptr. 745, 478 P.2d465, upon which plaintiff relies, isdistinguishable. 11 It is important to observe,however, that while defendants do not have meanssuperior to plaintiff to identify the maker of theprecise drug taken by her mother, they may insome instances be able to prove that they did notmanufacture the injury-causing substance. In thepresent case, for example, one of the originaldefendants was dismissed from the action uponproof that it did not manufacture DES until afterplaintiff was born.Thus we conclude that the fact defendants donot have greater access to information whichmight establish the identity of the manufacturer ofthe DES which injured plaintiff does not per seprevent application of the Summers rule.Nevertheless, plaintiff may not prevail in herclaim that the Summers rationale should beemployed to fix the whole liability for her injuriesupon defendants, at least as those principles havepreviously been applied. 12 There is an important11In Haft, a father and his young son drowned indefendants' swimming pool. There were no witnesses tothe accident. Defendants were negligent in failing toprovide a lifeguard, as required by law. We held that theabsence of evidence of causation was a direct andforeseeable result of the defendants' negligence, and that,therefore, the burden of proof on the issue of causationwas upon defendants. Plaintiff attempts to bring herselfwithin this holding. She asserts that defendants' failure todiscover or warn of the dangers of DES and to label thedrug as experimental caused her mother to fail to keeprecords or remember the brand name of the drugprescribed to her "since she was unaware of any reason todo so for a period of 10 to 20 years." There is no properanalogy to Haft here. While in Haft the presence of alifeguard on the scene would have provided a witness tothe accident and probably prevented it, plaintiff asks us tospeculate that if the DES taken by her mother had beenlabelled as an experimental drug, she would have recalledor recorded the name of the manufacturer and passed thisinformation on to her daughter. It cannot be said here thatthe absence of evidence of causation was a "direct andforeseeable result" of defendants' failure to provide awarning label.12Plaintiff relies upon three older cases for theproposition that the burden of proof may be shifted todefendants to explain the cause of an accident even if lessthan all of them are before the court. (Benson v. RossBROWN V. SUPERIOR COURT

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 83difference between the situation involved inSummers and the present case. There, all theparties who were or could have been responsiblefor the harm to the plaintiff were joined asdefendants. Here, by contrast, there areapproximately 200 drug companies which madeDES, any of which might have manufactured theinjury-producing drug. 13Defendants maintain that, while in Summersthere was a 50 percent chance that one of the twodefendants was responsible for the plaintiff'sinjuries, here since any one of 200 companieswhich manufactured DES might have made theproduct which harmed plaintiff, there is norational basis upon which to infer that anydefendant in this action caused plaintiff's injuries,nor even a reasonable possibility that they wereresponsible. 14(1906) 143 Mich. 452, 106 N.W. 1120; Moore v. Foster(1938) 182 Miss. 15, 180 So. 73; Oliver v. Miles (1927)144 Miss. 852, 110 So. 666.) These cases do not relate tothe shifting of the burden of proof; rather, they imposedliability upon one of two or more joint tortfeasors on theground that they acted in concert in committing anegligent act. This theory of concerted action as a basis fordefendants' liability will be discussed infra. In Summers,we stated that these cases were "straining" the concept ofconcerted action and that the "more reasonable" basis forholding defendants jointly liable when more than one ofthem had committed a tort and plaintiff could not establishthe identity of the party who had caused the damage wasthe danger that otherwise two negligent parties might beexonerated. (Summers, 33 Cal. 2d 80, at pp. 84-85, 199P.2d 1.)13According to the RESTATEMENT, the burden ofproof shifts to the defendants only if the plaintiff candemonstrate that all defendants acted tortiously and thatthe harm resulted from the conduct of one of them. (REST.2D TORTS, § 433B, com. g, p. 446.) It goes on to state thatthe rule thus far has been applied only where all the actorsinvolved are joined as defendants and where the conductof all is simultaneous in time, but cases might arise inwhich some modification of the rule would be necessary ifone of the actors is or cannot be joined, or because of theeffects of lapse of time, or other circumstances. (Id., com.h, p. 446.)14Defendants claim further that the effect ofshifting the burden of proof to them to demonstrate thatthey did not manufacture the DES which caused the injurywould create a rebuttable presumption that one of themmade the drug taken by plaintiff's mother, and that thispresumption would deny them due process because thereis no rational basis for the inference.These arguments are persuasive if wemeasure the chance that any one of the defendantssupplied the injury-causing drug by the number ofpossible tortfeasors. In such a context, thepossibility that any of the five defendants suppliedthe DES to plaintiff's mother is so remote that itwould be unfair to require each defendant toexonerate itself. There may be a substantiallikelihood that none of the five defendants joinedin the action made the DES which caused theinjury, and that the offending producer not namedwould escape liability altogether. While wepropose, infra, an adaptation of the rule inSummers which will substantially overcome thesedifficulties, defendants appear to be correct thatthe rule, as previously applied, cannot relieveplaintiff of the burden of proving the identity ofthe manufacturer which made the drug causingher injuries. 15IIThe second principle upon which plaintiffrelies is the so-called "concert of action" theory.Preliminarily, we briefly describe the procedure adrug manufacturer must follow before placing adrug on the market. Under federal law as it readprior to 1962, a new drug was defined as one "notgenerally recognized as ... safe." (§ 102, 76 Stat.781 (Oct. 10, 1962).) Such a substance could bemarketed only if a new drug application had beenfiled with the Food and Drug Administration andhad become "effective."16 If the agency15Garcia v. Joseph Vince Co., supra, 84 Cal. App.3d 868, 148 Cal. Rptr. 843, relied upon by defendants,presents a distinguishable factual situation. The plaintiff inGarcia was injured by a defective saber. He was unable toidentify which of two manufacturers had produced theweapon because it was commingled with other sabers afterthe accident. In a suit against both manufacturers, the courtrefused to apply the Summers rationale on the ground thatthe plaintiff had not shown that either defendant hadviolated a duty to him. Thus in Garcia, only one of thetwo defendants was alleged to have manufactured adefective product, and the plaintiff's inability to identifywhich of the two was negligent resulted in a judgment forboth defendants. (See also Wetzel v. Eaton, supra, 62F.R.D. 22.) Here, by contrast, the DES manufactured byall defendants is alleged to be defective, but plaintiff isunable to demonstrate which of the defendants suppliedthe precise DES which caused her injuries.16A new drug application became "effective"automatically if the Secretary of Health, Education andWelfare failed within a certain period of time toSINDELL V. ABBOT LABORATORIES

84 2. PROXIMATE CAUSEdetermined that a product was no longer a "newdrug," i.e., that it was "generally recognized as ...safe," (21 U.S.C.A. § 321, subd. (p) (1)) it couldbe manufactured by any drug company withoutsubmitting an application to the agency.According to defendants, 123 new drugapplications for DES had been approved by 1952,and in that year DES was declared not to be a"new drug," thus allowing any manufacturer toproduce it without prior testing and withoutsubmitting a new drug application to the Food andDrug Administration.With this background we consider whetherthe complaint states a claim based upon "concertof action" among defendants. The elements of thisdoctrine are prescribed in section 876 of theRESTATEMENT OF TORTS. The section provides,"For harm resulting to a third person from thetortious conduct of another, one is subject toliability if he (a) does a tortious act in concertwith the other or pursuant to a common designwith him, or (b) knows that the other's conductconstitutes a breach of duty and gives substantialassistance or encouragement to the other so toconduct himself, or (c) gives substantial assistanceto the other in accomplishing a tortious result andhis own conduct, separately considered,constitutes a breach of duty to the third person."With respect to this doctrine, Prosser states that"those who, in pursuance of a common plan ordesign to commit a tortious act, actively take partin it, or further it by cooperation or request, orwho lend aid or encouragement to the wrongdoer,or ratify and adopt his acts done for their benefit,are equally liable with him. () Express agreementis not necessary, and all that is required is thatthere be a tacit understanding...." (PROSSER, LAWOF TORTS (4th ed. 1971), sec. 46, p. 292.)Plaintiff contends that her complaint states acause of action under these principles. She allegesthat defendants' wrongful conduct "is the result ofplanned and concerted action, express and impliedagreements, collaboration in, reliance upon,acquiescence in and ratification, exploitation andadoption of each other's testing, marketingdisapprove the application. If the agency had insufficientinformation to decide whether the drug was safe or hadinformation that it was unsafe, the application was denied.(§ 505, 52 Stat. 1052 (June 25, 1938).) Since 1962,affirmative approval of an application has been requiredbefore a new drug may be marketed. (21 U.S.C.A. § 355,subd. (c).)methods, lack of warnings ... and other acts oromissions...." and that "acting individually and inconcert, [defendants] promoted, approved,authorized, acquiesced in, and reaped profits fromsales" of DES. These allegations, plaintiff claims,state a "tacit understanding" among defendants tocommit a tortious act against her.In our view, this litany of charges isinsufficient to allege a cause of action under therules stated above. The gravamen of the charge ofconcert is that defendants failed to adequately testthe drug or to give sufficient warning of itsdangers and that they relied upon the testsperformed by one another and took advantage ofeach others' promotional and marketingtechniques. These allegations do not amount to acharge that there was a tacit understanding or acommon plan among defendants to fail to conductadequate tests or give sufficient warnings, and thatthey substantially aided and encouraged oneanother in these omissions. The complaint chargesalso that defendants produced DES from a"common and mutually agreed upon formula,"allowing pharmacists to treat the drug as a"fungible commodity" and to fill prescriptionsfrom whatever brand of DES they had on hand atthe time. It is difficult to understand how theseallegations can form the basis of a cause of actionfor wrongful conduct by defendants, acting inconcert. The formula for DES is a scientificconstant. It is set forth in the United StatesPharmacopoeia, and any manufacturer producingthat drug must, with exceptions not relevant here,utilize the formula set forth in that compendium.(21 U.S.C.A. § 351, subd. (b).)What the complaint appears to charge isdefendants' parallel or imitative conduct in thatthey relied upon each others' testing andpromotion methods. But such conduct describes acommon practice in industry: a producer availshimself of the experience and methods of othersmaking the same or similar products. Applicationof the concept of concert of action to this situationwould expand the doctrine far beyond its intendedscope and would render virtually anymanufacturer liable for the defective products ofan entire industry, even if it could bedemonstrated that the product which caused theinjury was not made by the defendant.None of the cases cited by plaintiff supports aconclusion that defendants may be held liable forconcerted tortious acts. They involve conduct by asmall number of individuals whose actionsresulted in a tort against a single plaintiff, usuallyBROWN V. SUPERIOR COURT

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 85over a short span of time, and the defendant heldliable was either a direct participant in the actswhich caused damage, 17 or encouraged andassisted the person who directly caused theinjuries by participating in a joint activity. 18IIIA third theory upon which plaintiff relies isthe concept of industry-wide liability, oraccording to the terminology of the parties,"enterprise liability." This theory was suggested inHall v. E.I. Du Pont de Nemours & Co., Inc. (E.D.N.Y. 1972) 345 F. Supp. 353. In that case,plaintiffs were 13 children injured by theexplosion of blasting caps in 12 separate incidentswhich occurred in 10 different states between1955 and 1959. The defendants were six blastingcap manufacturers, comprising virtually the entireblasting cap industry in the United States, andtheir trade association. There were, however, anumber of Canadian blasting cap manufacturerswhich could have supplied the caps. Thegravamen of the complaint was that the practice ofthe industry of omitting a warning on individualblasting caps and of failing to take other safetymeasures created an unreasonable risk of harm,resulting in the plaintiffs' injuries. The complaintdid not identify a particular manufacturer of a capwhich caused a particular injury.The court reasoned as follows: there wasevidence that defendants, acting independently,had adhered to an industry-wide standard withregard to the safety features of blasting caps, that17Weinberg Co. v. Bixby (1921) 185 Cal. 87, 103,196 P. 25, involved a husband who was held liable withhis wife for wrongful diversion of flood waters althoughhe had given his wife title to the land upon which theoutlet causing the diversion was constructed. He not onlyowned land affected by the flood waters, but he was hiswife's agent for the purpose of reopening the outlet whichcaused the damage. In Meyer v. Thomas (1936) 18 Cal.App. 2d 299, 305-306, 63 P.2d 1176, both defendantsparticipated in the conversion of a note and deed of trust.they had in effect delegated some functions ofsafety investigation and design, such as labelling,to their trade association, and that there wasindustry-wide cooperation in the manufacture anddesign of blasting caps. In these circumstances,the evidence supported a conclusion that all thedefendants jointly controlled the risk. Thus, ifplaintiffs could establish by a preponderance ofthe evidence that the caps were manufactured byone of the defendants, the burden of proof as tocausation would shift to all the defendants. Thecourt noted that this theory of liability applied toindustries composed of a small number of units,and that what would be fair and reasonable withregard to an industry of five or ten producersmight be manifestly unreasonable if applied to adecentralized industry composed of countlesssmall producers. 19Plaintiff attempts to state a cause of actionunder the rationale of Hall. She alleges jointenterprise and collaboration among defendants inthe production, marketing, promotion and testingof DES, and "concerted promulgation andadherence to industry-wide testing, safety,warning and efficacy standards" for the drug. Wehave concluded above that allegations thatdefendants relied upon one another's testing andpromotion methods do not state a cause of actionfor concerted conduct to commit a tortious act.Under the theory of industry-wide liability,however, each manufacturer could be liable for allinjuries caused by DES by virtue of adherence toan industry-wide standard of safety.In the Fordham Comment, the industry-widetheory of liability is discussed and refined in thecontext of its applicability to actions alleginginjuries resulting from DES. The author explainscausation under that theory as follows, "[T]heindustrywide standard becomes itself the cause ofplaintiff's injury, just as defendants' joint plan isthe cause of injury in the traditional concert ofaction plea. Each defendant's adherenceperpetuates this standard, which results in themanufacture of the particular, unidentifiable18In Agovino v. Kunze (1960) 181 Cal. App. 2d591, 599, 5 Cal. Rptr. 534, a participant in a drag race washeld liable for injuries to a plaintiff who collided with thecar of another racer. In Loeb v. Kimmerle (1932) 215 Cal.143, 151, 9 P.2d 199, a defendant who encouraged anotherdefendant to commit an assault was held jointly liable forthe plaintiff's injuries. Also see Weirum v. RKO General,Inc. (1975) 15 Cal. 3d 40, 123 Cal. Rptr. 468, 539 P.2d 36.19In discussing strict liability, the Hall courtmentioned the drug industry, stating, "In cases wheremanufacturers have more experience, more information,and more control over the risky properties of theirproducts than do drug manufacturers, courts have applieda broader concept of foreseeability which approaches theenterprise liability rationale." (345 F. Supp. 353 at p. 370.)SINDELL V. ABBOT LABORATORIES

86 2. PROXIMATE CAUSEinjury-producing product. Therefore, eachindustry member has contributed to plaintiff'sinjury." (Fordham Comment, supra, at p. 997.)The Comment proposes seven requirementsfor a cause of action based upon industry-wideliability, 20 and suggests that if a plaintiff provesthese elements, the burden of proof of causationshould be shifted to the defendants, who mayexonerate themselves only by showing that theirproduct could not have caused the injury. 21We decline to apply this theory in the presentcase. At least 200 manufacturers produced DES;Hall, which involved 6 manufacturersrepresenting the entire blasting cap industry in theUnited States, cautioned against application of thedoctrine espoused therein to a large number ofproducers. (345 F. Supp. at p. 378.) Moreover, inHall, the conclusion that the defendants jointlycontrolled the risk was based upon allegations thatthey had delegated some functions relating tosafety to a trade association. There are no suchallegations here, and we have concluded abovethat plaintiff has failed to allege liability on a20The suggested requirements are as follows: 1.There existed an insufficient, industry-wide standard ofsafety as to the manufacture of the product. 2. Plaintiff isnot at fault for the absence of evidence identifying thecausative agent but, rather, this absence of proof is due todefendant's conduct. 3. A generically similar defectiveproduct was manufactured by all the defendants. 4.Plaintiff's injury was caused by this defect. 5. Defendantsowed a duty to the class of which plaintiff was a member.6. There is clear and convincing evidence that plaintiff'sinjury was caused by a product made by one of thedefendants. For example, the joined defendants accountedfor a high percentage of such defective products on themarket at the time of plaintiff's injury. 7. All defendantswere tortfeasors.21The Fordham Comment takes exception to oneaspect of the theory of industry-wide liability as set forthin Hall, i.e., the conclusion that a plaintiff is only requiredto show by a preponderance of the evidence that one of thedefendants manufactured the product which caused herinjury. The Comment suggests that a plaintiff be requiredto prove by clear and convincing evidence that one of thedefendants before the court was responsible and that thisstandard of proof would require that the plaintiff join inthe action the producers of 75 or 80 percent of the DESprescribed for prevention of miscarriage. It is alsosuggested that the damages be apportioned among thedefendants according to their share of the market for DES.(Fordham Comment, supra, 999-1000.)concert of action theory.Equally important, the drug industry isclosely regulated by the Food and DrugAdministration, which actively controls thetesting and manufacture of drugs and the methodby which they are marketed, including thecontents of warning labels. 22 To a considerabledegree, therefore, the standards followed by drugmanufacturers are suggested or compelled by thegovernment. Adherence to those standards cannot,of course, absolve a manufacturer of liability towhich it would otherwise be subject. (Stevens v.Parke, Davis & Co. (1973) 9 Cal. 3d 51, 65, 107Cal. Rptr. 45, 507 P.2d 653.) But since the governmentplays such a pervasive role in formulatingthe criteria for the testing and marketing of drugs,it would be unfair to impose upon a manufacturerliability for injuries resulting from the use of adrug which it did not supply simply because itfollowed the standards of the industry. 23IVIf we were confined to the theories ofSummers and Hall, we would be constrained tohold that the judgment must be sustained. Shouldwe require that plaintiff identify the manufacturerwhich supplied the DES used by her mother orthat all DES manufacturers be joined in the action,she would effectively be precluded from anyrecovery. As defendants candidly admit, there islittle likelihood that all the manufacturers whomade DES at the time in question are still inbusiness or that they are subject to the jurisdictionof the California courts. There are, however,forceful arguments in favor of holding thatplaintiff has a cause of action.In our contemporary complex industrializedsociety, advances in science and technology create22Federal regulations may specify the type of testsa manufacturer must perform for certain drugs (21 C.F.R.§ 436.206 et seq.), the type of packaging used (§ 429.10),the warnings which appear on labels (§ 369.20), and thestandards to be followed in the manufacture of a drug(§ 211.22 et seq.).23Abel v. Eli Lilly and Company, the Michigancase referred to above which held that the plaintiffs hadstated a cause of action against several manufacturers ofDES even though they could not identify a particularmanufacturer as the source of a particular injury, reliedupon the theories of concerted action and alternativeliability.BROWN V. SUPERIOR COURT

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 87fungible goods which may harm consumers andwhich cannot be traced to any specific producer.The response of the courts can be either to adhererigidly to prior doctrine, denying recovery tothose injured by such products, or to fashionremedies to meet these changing needs. Just asJustice Traynor in his landmark concurringopinion in Escola v. Coca Cola Bottling Company(1944) 24 Cal. 2d 453, 467-468, 150 P.2d 436,recognized that in an era of mass production andcomplex marketing methods the traditionalstandard of negligence was insufficient to governthe obligations of manufacturer to consumer, soshould we acknowledge that some adaptation ofthe rules of causation and liability may beappropriate in these recurring circumstances. THERESTATEMENT comments that modification of theSummers rule may be necessary in a situation likethat before us. (See fn. 16, ante.)The most persuasive reason for findingplaintiff states a cause of action is that advancedin Summers: as between an innocent plaintiff andnegligent defendants, the latter should bear thecost of the injury. Here, as in Summers, plaintiff isnot at fault in failing to provide evidence ofcausation, and although the absence of suchevidence is not attributable to the defendantseither, their conduct in marketing a drug theeffects of which are delayed for many yearsplayed a significant role in creating theunavailability of proof.From a broader policy standpoint, defendantsare better able to bear the cost of injury resultingfrom the manufacture of a defective product. Aswas said by Justice Traynor in Escola, "[t]he costof an injury and the loss of time or health may bean overwhelming misfortune to the personinjured, and a needless one, for the risk of injurycan be insured by the manufacturer anddistributed among the public as a cost of doingbusiness." (24 Cal. 2d p. 462, 150 P.2d p. 441; seealso REST. 2D TORTS, § 402A, com. c, pp.349-350.) The manufacturer is in the best positionto discover and guard against defects in itsproducts and to warn of harmful effects; thus,holding it liable for defects and failure to warn ofharmful effects will provide an incentive toproduct safety. (Cronin v. J.B.E. Olson Corp.(1972) 8 Cal. 3d 121, 129, 104 Cal. Rptr. 433, 501P.2d 1153; Beech Aircraft Corp. v. Superior Court(1976) 61 Cal. App. 3d 501, 522-523, 132 Cal.Rptr. 541.) These considerations are particularlysignificant where medication is involved, for theconsumer is virtually helpless to protect himselffrom serious, sometimes permanent, sometimesfatal, injuries caused by deleterious drugs.Where, as here, all defendants produced adrug from an identical formula and themanufacturer of the DES which caused plaintiff'sinjuries cannot be identified through no fault ofplaintiff, a modification of the rule of Summers iswarranted. As we have seen, an undilutedSummers rationale is inappropriate to shift theburden of proof of causation to defendantsbecause if we measure the chance that anyparticular manufacturer supplied theinjury-causing product by the number ofproducers of DES, there is a possibility that noneof the five defendants in this case produced theoffending substance and that the responsiblemanufacturer, not named in the action, will escapeliability. But we approach the issue of causationfrom a different perspective: we hold it to bereasonable in the present context to measure thelikelihood that any of the defendants supplied theproduct which allegedly injured plaintiff by thepercentage which the DES sold by each of themfor the purpose of preventing miscarriage bears tothe entire production of the drug sold by all forthat purpose. Plaintiff asserts in her briefs that EliLilly and Company and 5 or 6 other companiesproduced 90 percent of the DES marketed. If attrial this is established to be the fact, then there isa corresponding likelihood that this comparativehandful of producers manufactured the DESwhich caused plaintiff's injuries, and only a 10percent likelihood that the offending producerwould escape liability. 24If plaintiff joins in the action themanufacturers of a substantial share of the DESwhich her mother might have taken, the injusticeof shifting the burden of proof to defendants to24The Fordham Comment explains the connectionbetween percentage of market share and liability asfollows: "[I]f X Manufacturer sold one-fifth of all the DESprescribed for pregnancy and identification could be madein all cases, X would be the sole defendant inapproximately one-fifth of all cases and liable for all thedamages in those cases. Under alternative liability, Xwould be joined in all cases in which identification couldnot be made, but liable for only one-fifth of the totaldamages in these cases. X would pay the same amounteither way. Although the correlation is not, in practice,perfect [footnote omitted], it is close enough so thatdefendants' objections on the ground of fairness lose theirvalue." (Fordham Comment, supra, at p. 94.)SINDELL V. ABBOT LABORATORIES

88 2. PROXIMATE CAUSEdemonstrate that they could not have made thesubstance which injured plaintiff is significantlydiminished. While 75 to 80 percent of the marketis suggested as the requirement by the FordhamComment (at p. 996), we hold only that asubstantial percentage is required.The presence in the action of a substantialshare of the appropriate market also provides aready means to apportion damages among thedefendants. Each defendant will be held liable forthe proportion of the judgment represented by itsshare of that market unless it demonstrates that itcould not have made the product which causedplaintiff's injuries. In the present case, as we havesee, one DES manufacturer was dismissed fromthe action upon filing a declaration that it had notmanufactured DES until after plaintiff was born.Once plaintiff has met her burden of joining therequired defendants, they in turn maycross-complaint against other DES manufacturers,not joined in the action, which they can allegemight have supplied the injury-causing product.Under this approach, each manufacturer'sliability would approximate its responsibility forthe injuries caused by its own products. Someminor discrepancy in the correlation betweenmarket share and liability is inevitable; therefore,a defendant may be held liable for a somewhatdifferent percentage of the damage than its shareof the appropriate market would justify. It isprobably impossible, with the passage of time, todetermine market share with mathematicalexactitude. But just as a jury cannot be expectedto determine the precise relationship between faultand liability in applying the doctrine ofcomparative fault (Li v. Yellow Cab Co. (1975) 13Cal. 3d 804, 119 Cal. Rptr. 858, 532 P.2d 1226) orpartial indemnity (American Motorcycle Ass'n v.Superior Court (1978) 20 Cal. 3d 578, 146 Cal.Rptr. 182, 578 P.2d 899), the difficulty ofapportioning damages among the defendantproducers in exact relation to their market sharedoes not seriously militate against the rule weadopt. As we said in Summers with regard to theliability of independent tortfeasors, where acorrect division of liability cannot be made "thetrier of fact may make it the best it can." (33 Cal.2d at p. 88, 199 P.2d at p. 5.)We are not unmindful of the practicalproblems involved in defining the market anddetermining market share, 25 but these are largelymatters of proof which properly cannot bedetermined at the pleading stage of theseproceedings. Defendants urge that it would beboth unfair and contrary to public policy to holdthem liable for plaintiff's injuries in the absence ofproof that one of them supplied the drugresponsible for the damage. Most of theirarguments, however, are based upon theassumption that one manufacturer would be heldresponsible for the products of another or forthose of all other manufacturers if plaintiffultimately prevails. But under the rule we adopt,each manufacturer's liability for an injury wouldbe approximately equivalent to the damagescaused by the DES it manufactured. 26The judgments are reversed.BIRD, C.J., and NEWMAN and WHITE, JJ.,concur.RICHARDSON, Justice, dissentingI respectfully dissent. In these consolidatedcases the majority adopts a wholly new theorywhich contains these ingredients: The plaintiffswere not alive at the time of the commission ofthe tortious acts. They sue a generation later. Theyare permitted to receive substantial damages frommultiple defendants without any proof that anydefendant caused or even probably causedplaintiffs' injuries.Although the majority purports to changeonly the required burden of proof by shifting itfrom plaintiffs to defendants, the effect of itsholding is to guarantee that plaintiffs will prevailon the causation issue because defendants are no25Defendants assert that there are no figuresavailable to determine market share, that DES wasprovided for a number of uses other than to preventmiscarriage and it would be difficult to ascertain whatproportion of the drug was used as a miscarriagepreventative, and that the establishment of a time frameand area for market share would pose problems.26The dissent concludes by implying the problemwill disappear of the Legislature appropriates funds "forthe education, identification, and screening of personsexposed to DES." While such a measure may arguably behelpful in the abstract, it does not address the issueinvolved here: damages for injuries which have been orwill be suffered. Nor, as a principle, do we see anyjustification for shifting the financial burden for suchdamages from drug manufacturers to the taxpayers ofCalifornia.BROWN V. SUPERIOR COURT

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 89more capable of disproving factual causation thanplaintiffs are of proving it. "Market share" liabilitythus represents a new high water mark in tort law.The ramifications seem almost limitless, a factwhich prompted one recent commentator, incriticizing a substantially identical theory, toconclude that "Elimination of the burden of proofas to identification (of the manufacturer whosedrug injured plaintiff) would impose a liabilitywhich would exceed absolute liability." (Coggins,Industry-Wide Liability (1979) 13 SUFFOLK L.REV. 980, 998, fn. omitted; see also pp.1000-1001.) In my view, the majority's departurefrom traditional tort doctrine is unwise.The applicable principles of causation arevery well established. A leading torts scholar,Dean Prosser, has authoritatively put it this way:"An essential element of the plaintiff's cause ofaction for negligence, or for that matter for anyother tort, is that there be some reasonableconnection between the act or omission of thedefendant and the damage which the plaintiff hassuffered." (PROSSER, TORTS (4th ed. 1971) § 41,p. 236, italics added.) With particular reference tothe matter before us, and in the context ofproducts liability, the requirement of a causationelement has been recognized as equallyfundamental. "It is clear that any holding that aproducer, manufacturer, seller, or a person in asimilar position, is liable for injury caused by aparticular product, must necessarily be predicatedupon proof that the product in question was onefor whose condition the defendant was in someway responsible. Thus, for example, if recovery issought from a manufacturer, it must be shown thathe actually was the manufacturer of the productwhich caused the injury;..." (1 HURSH & BAILEY,AMERICAN LAW OF PRODUCTS LIABILITY (2d ed.1974) § 1:41, p. 125, italics added; accord,PROSSER, supra, § 103, at pp. 671-672; 2DOOLEY, MODERN TORT LAW (1977) § 32.03, p.243.) Indeed, an inability to prove this causal linkbetween defendant's conduct and plaintiff's injuryhas proven fatal in prior cases brought againstmanufacturers of DES by persons who weresituated in positions identical to those of plaintiffsherein. (See McCreery v. Eli Lilly & Co. (1978) 87Cal. App. 3d 77, 82, 150 Cal. Rptr. 730; Gray v.United States (D. Tex. 1978) 445 F. Supp. 337,338.)The majority now expressly abandons theforegoing traditional requirement of some causalconnection between defendants' act and plaintiffs'injury in the creation of its new modifiedindustry-wide tort. Conceptually, the doctrine ofabsolute liability which heretofore in negligencelaw has substituted only for the requirement of abreach of defendant's duty of care, under themajority's hand now subsumes the additionalnecessity of a causal relationship.According to the majority, in the present caseplaintiffs have openly conceded that they areunable to identify the particular entity whichmanufactured the drug consumed by theirmothers. In fact, plaintiffs have joined only five ofthe approximately two hundred drug companieswhich manufactured DES. Thus, the caseconstitutes far more than a mere factual variantupon the theme composed in Summers v. Tice(1948) 33 Cal. 2d 80, 199 P.2d 1, wherein plaintiffjoined as codefendants the only two persons whocould have injured him. As the majority mustacknowledge, our Summers rule applies only tocases in which "it is proved that harm has beencaused to the plaintiff by ... one of [the nameddefendants], but there is uncertainty as to whichone has caused it,..." (REST. 2D TORTS, § 433B,subd. (3).) In the present case, in stark contrast, itremains wholly speculative and conjecturalwhether any of the five named defendants actuallycaused plaintiffs' injuries.The fact that plaintiffs cannot tie defendantsto the injury-producing drug does not trouble themajority for it declares that the Summersrequirement of proof of actual causation by anamed defendant is satisfied by a joinder of thosedefendants who have together manufactured "asubstantial percentage" of the DES which hasbeen marketed. Notably lacking from themajority's expression of its new rule,unfortunately, is any definition or guidance as towhat should constitute a "substantial" share of therelevant market. The issue is entirely open-endedand the answer, presumably, is anyone's guess.Much more significant, however, is theconsequence of this unprecedented extension ofliability. Recovery is permitted from a handful ofdefendants each of whom individually mayaccount for a comparatively small share of therelevant market, so long as the aggregate businessof those who have been sued is deemed"substantial." In other words, a particulardefendant may be held proportionately liable eventhough mathematically it is much more likely thannot that it played no role whatever in causingplaintiffs' injuries. Plaintiffs have strikinglycapsulated their reasoning by insisting "that whileone manufacturer's product may not have injuredSINDELL V. ABBOT LABORATORIES

90 2. PROXIMATE CAUSEa particular plaintiff, we can assume that it injureda different plaintiff and all we are talking about isa mere matching of plaintiffs and defendants."(Counsel's letter (Oct. 16, 1979) p. 3.) In adoptingthe foregoing rationale the majority rejects over100 years of tort law which required that beforetort liability was imposed a "matching" ofdefendant's conduct and plaintiff's injury wasabsolutely essential. Furthermore, in bestowing onplaintiffs this new largess the majority sprinklesthe rain of liability upon all the joined defendantsalike those who may be tortfeasors and those whomay have had nothing at all to do with plaintiffs'injury and an added bonus is conferred. Plaintiffsare free to pick and choose their targets.The "market share" thesis may beparaphrased. Plaintiffs have been hurt by someonewho made DES. Because of the lapse of time noone can prove who made it. Perhaps it was not thenamed defendants who made it, but they did makesome. Although DES was apparently safe at thetime it was used, it was subsequently provenunsafe as to some daughters of some users.Plaintiffs have suffered injury and defendants arewealthy. There should be a remedy. Strict productsliability is unavailable because the element ofcausation is lacking. Strike that requirement andlabel what remains "alternative" liability,"industry-wide" liability, or "market share"liability, proving thereby that if you hit the squarepeg hard and often enough the round holes willreally become square, although you may splinterthe board in the process.* * *Finally, I am disturbed by the broad andominous ramifications of the majority's holding.The law review comment, which is the wellspringof the majority's new theory, conceding thewidespread consequences of industry-wideliability, openly acknowledges that "The DEScases are only the tip of an iceberg." (Comment,DES and a Proposed Theory of EnterpriseLiability (1978) 46 FORDHAM L. REV. 963, 1007.)Although the pharmaceutical drug industry maybe the first target of this new sanction, themajority's reasoning has equally threateningapplication to many other areas of business andcommercial activities.Given the grave and sweeping economic,social, and medical effects of "market share"liability, the policy decision to introduce anddefine it should rest not with us, but with theLegislature which is currently considering notonly major statutory reform of California productliability law in general, but the DES problem inparticular. (See Sen. Bill No. 1392 (1979-1980Reg. Sess.), which would establish andappropriate funds for the education, identification,and screening of persons exposed to DES, andwould prohibit health care and hospital serviceplans from excluding or limiting coverage topersons exposed to DES.) An alternative proposalfor administrative compensation, described as "alimited version of no-fault products liability" hasbeen suggested by one commentator. (Coggins,supra, 13 SUFFOLK L. REV. at pp. 1019-1021.)Compensation under such a plan would beawarded by an administrative tribunal from fundscollected "via a tax paid by all manufacturers." (P.1020, fn. omitted.) In any event, the probleminvites a legislative rather than an attemptedjudicial solution.I would affirm the judgments of dismissal.CLARK and MANUEL, JJ., concur.Questions and Notes1. As you will learn in the course of your lawschool career, law reviews are for the most partedited by law students. "Notes" and "Comments"are articles written by students; notes are usuallyan analysis of some recent important case,whereas "comments" usually suggest a change inthe law. The court in this case relies heavily upona student-written comment appearing in theFordham Law Review. Do you think itappropriate that the supreme court of the mostpopulous state in the nation should makesubstantial changes in the law based upon anapproach suggested by someone who hasn't evencompleted law school?2. The challenges of managing a large classaction based on claims of personal injury haveled many courts to reject the class action vehicle,even where the alternative is thousands ofindividual cases. Moreover, there are importantdue process limitations on what courts may do.For example, in Amchem Prods., Inc. v. Windsor,117 S. Ct. 2231 (1997), the Supreme Courtrejected a settlement-only class action brought byvictims of asbestos exposure. The case isanalyzed (and criticized) in S. Charles Neill, TheTower of Babel Revisited: The U.S. SupremeCourt Decertifies One of the Largest Mass TortClasses in History, 37 Washburn L.J. 793 (1998).BROWN V. SUPERIOR COURT

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 91BROWN v. SUPERIOR COURT44 Cal. 3d 1049, 245 Cal. Rptr. 412, 751 P.2d470 (1988)[This case is significant both for its impacton the "market share" theory, and also because ofits holdings with respect to product liability. Theparts of the case dealing with product liabilityare excerpted in Chapter Six, § B. - ed.]MOSK, Justice* * *II. Sindell IssuesA. Breach of Express and ImpliedWarranty and Fraud* * *B. Joint and Several or Several LiabilityThe last issue we determine is whether thedefendants found liable in a market share actionare to be held jointly and severally liable for thejudgment or whether, as defendants here assert,each defendant should be liable only for theportion of a plaintiff's damages that correspondsto the percentage of its share of the relevantmarket for DES.The consequences of these methods ofdetermining liability are markedly different. Ifsuch defendants are jointly and severally liable, aplaintiff may recover the entire amount of thejudgment from any of the defendants joined inthe action. Since the plaintiff is required underSindell to join the manufacturers of only asubstantial share of the appropriate market forDES, it follows that if joint liability were the rule,a defendant could be held responsible for aportion of the judgment that may greatly exceedthe percentage of its market share. Under severalliability, in contrast, because each defendant'sliability for the judgment would be confined tothe percentage of its share of the market, aplaintiff would not recover the entire amount ofthe judgment (except in the unlikely event that allmanufacturers were joined in the action) but onlythe percentage of the sum awarded that is equalto the market shares of the defendants joined inthe action. In the one case, it would be theplaintiff who would bear the loss resulting fromthe fact that some producers of DES that mighthave been found liable under the market sharetheory were not joined in the action (or if adefendant became insolvent), whereas in theother such losses would fall on the defendants.Since, as we pointed out in Sindell, there is littlelikelihood that all manufacturers of DES in theappropriate market would be amenable to suit,the adoption of one or the other basis for liabilitycould significantly affect the amount of aplaintiff's recovery and, concomitantly, adefendant's liability.* * *In creating the market share doctrine, thiscourt attempted to fashion a remedy for personsinjured by a drug taken by their mothers ageneration ago, making identification of themanufacturer impossible in many cases. Werealized that in order to provide relief to aninjured DES daughter faced with this dilemma,we would have to allow recovery of damagesagainst some defendants which may not havemanufactured the drug that caused the damage. Toprotect such defendants against excessive liability,we considered and rejected three separate theoriesof liability suggested by the plaintiff, andformulated, instead, the market share concept.We explained the basis of the doctrine asfollows: In order to decrease the likelihood that amanufacturer of DES would be held liable forinjuries caused by products not of its making, andto achieve a reasonable approximation of itsresponsibility for injuries caused by the DES itproduced, the plaintiff should be required to joinin the action the manufacturers of a substantialshare of the relevant DES market. If this weredone, the injustice of shifting the burden of proofto defendants to exonerate themselves ofresponsibility for the plaintiff's injuries would bediminished. Each defendant would be held liablefor the proportion of the judgment represented byits market share, and its overall liability forinjuries caused by DES would approximate theinjuries caused by the DES it manufactured. ADES manufacturer found liable under thisapproach would not be held responsible forinjuries caused by another producer of the drug.The opinion acknowledged that only anapproximation of a manufacturer's liability couldbe achieved by this procedure, but underlying ourholding was a recognition that such a result wasSINDELL V. ABBOT LABORATORIES

92 2. PROXIMATE CAUSEpreferable to denying recovery altogether toplaintiffs injured by DES.It is apparent that the imposition of jointliability on defendants in a market share actionwould be inconsistent with this rationale. Anydefendant could be held responsible for the entirejudgment even though its market share may havebeen comparatively insignificant. Liability wouldin the first instance be measured not by thelikelihood of responsibility for the plaintiff'sinjuries but by the financial ability of a defendantto undertake payment of the entire judgment or alarge portion of it. A defendant that paid a largerpercentage of the judgment than warranted by itsmarket share would have the burden of seekingindemnity from other defendants (Code Civ.Proc., § 875; American Motorcycle Association v.Superior Court (1978) 20 Cal. 3d 578, 146 Cal.Rptr. 182, 578 P.2d 899), and it would bear theloss if producers of DES that might have beenheld liable in the action were not amenable to suit,or if a codefendant was bankrupt. In short, theimposition of joint liability among defendantmanufacturers in a market share action wouldfrustrate Sindell's goal of achieving a balancebetween the interests of DES plaintiffs andmanufacturers of the drug.This holding is consistent with the views ofcommentators who, with a few exceptions, haveconcluded that Sindell in effect held or shouldhave held that defendants are not jointly liable fordamages in a market share action. (Schwartz &Mahshigian, Failure to Identify the Defendant inTort Law: Towards a Legislative Solution (1985)73 CAL. L. REV. 941, 957; Note, Sindell v. AbbottLaboratories: A Market Share Approach to DESCausation (1981) 69 CAL. L. REV. 1179, 1194;Comment, The Market Share Theory: Sindell,Contribution to Industry-Wide Liability (1981) 19HOUSTON L. REV. 107, 131-132; Note, Productsliability (1981) 34 OKLA. L. REV. 843, 853; Note,Market Share Liability: An Answer to the DESCausation Problem (1981) 94 HARV. L. REV. 668,673; Note, DES: Judicial Interest Balancing andInnovation (1981) 22 B.C. L. REV. 747, 770, 774.)Finally, plaintiff proposes an alternate meansto apportion liability among defendants. Shesuggests that if we conclude that joint liability isnot appropriate, each defendant's liability shouldbe "inflated" in proportion to its market share inan amount sufficient to assure that plaintiff wouldrecover the entire amount of the judgment. Whilethis ingenious approach would not be as unjust todefendants as joint liability, we decline to adoptthe proposal because it would nonethelessrepresent a retreat from Sindell's attempt toachieve as close an approximation as possiblebetween a DES manufacturer's liability fordamages and its individual responsibility for theinjuries caused by the products it manufactured.The judgment of the Court of Appeal isaffirmed.[All concur.]Questions and Notes1. One commentator has expressed skepticismconcerning the court's ability to make meaningful(and fair) determinations of "market share." SeeFischer, Products Liability - An Analysis ofMarket Share Liability, 34 VAND. L. REV. 1623(1981).2. There is considerable debate about the bestway to handle mass tort cases, of which the DEScases are but an example. Should the plaintiffs(and defendants) be given individual treatment,or is some sort of "assembly-line" approach bestfor all concerned? For a review, see Symposium,Conflict of Laws and Complex Litigation Issuesin Mass Tort Litigation, 1989 U. ILL. L. REV. 35.3. There are even efforts to apply marketshare liability theories against illegal drugdealers. See Kevin G. Meeks, From Sindell toStreet Pushers: Imposing Market Share TortLiability on Illegal Drug Dealers, 33 Ga. L. Rev.315 (1998).b. Loss of a ChanceDILLON v. TWIN STATE GAS &ELECTRIC CO.163 A. 111 (N.H. 1932)Action for negligently causing the death ofthe plaintiff's intestate, a boy of 14. A jury trialresulted in a disagreement.SINDELL V. ABBOTT LABORATORIES

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 93The defendant maintained wires to carryelectric current over a public bridge in Berlin. Inthe construction of the bridge there were twospans of girders on each side between theroadway and footway. In each span the girders ateach end sloped upwards towards each otherfrom the floor of the bridge until connected byhorizontal girders about nineteen feet above thefloor.The wires were carried above the frameworkof the bridge between the two rows of girders. Tolight the footway of the bridge at its center a lampwas hung from a bracket just outside of one ofthe horizontal girders and crossing over the endof the girder near its connection with a slopinggirder. Wires ran from a post obliquely downwardto the lamp and crossed the horizontal girder afoot or more above it. The construction of thewire lines over and upon the bridge is termedaerial. The wires were insulated for weatherprotection but not against contact.The decedent and other boys had beenaccustomed for a number of years to play on thebridge in the daytime, habitually climbing thesloping girders to the horizontal ones, one whichthey walked and sat and from which theysometimes dived into the river. No current passedthrough the wires in the daytime except bychance.The decedent, while sitting on a horizontalgirder at a point where the wires from the post tothe lamp were in front of him or at his side, andwhile facing outwards from the side of thebridge, leaned over, lost his balance, instinctivelythrew out his arm, and took hold of one of thewires with his right hand to save himself fromfalling. The wires happened to be charged with ahigh voltage current at the time and he waselectrocuted. Further facts appear in the opinion.* * *ALLEN, J.The bridge was in the compact part of thecity. It was in evidence that at one time thedefendant's construction foreman had complainedto the city marshal about its use by boys as aplayground, and in his complaint had referred tothe defendant's wires. The only wires were thoseover the bridge superstructure. From thisevidence and that relating to the extent of thepractice for boys to climb up to and upon thehorizontal girders an inference that the defendanthad notice of the practice was reasonable. Theoccasion for the complaint might be found due toapprehension of danger from proximity to thewires. This only came about from climbing uponthe upper framework of the bridge. There was nosuggestion of danger in any use of the bridgeconfined to the floor level.The use of the girders brought the wiresleading to the lamp close to those making the use,and as to them it was in effect the same as thoughthe wires were near the floor of the bridge. Whilethe current in the wires over the bridge wasmechanically shut off during the daytime, otherwires carried a commercial current, and there wasa risk from many causes of the energizing of thebridge wires at any time. It is claimed that thesecauses could not be overcome or prevented. Ifthey could not, their consequences might be.Having notice of the use made of the girders, andknowing the chance of the wires becomingcharged at any time, the defendant may not saythat it was not called upon to take action until thechance happened. Due care demanded reasonablemeasures to forestall the consequences of achance current if the chance was too likely tooccur to be ignored.* * *When it is said that care is owing onlytowards those with whom there is a relationship,the problem of determining if a relationship existsremains. It is not solved by rigid and arbitraryclassifications between those entitled, and thosenot entitled, to receive care. "The rule ofreasonable conduct is applied in this jurisdiction... to show the extent of an existing relation.... It isa reasonable rule because it only calls forreasonable conduct." McCaffrey v. Company,supra, page 51 of 80 N.H., 114 A. 395, 398. Andthe rule goes even farther and serves to show theexistence of a relation as well as its extent.Reasonableness is as well a test of therequirement of conduct as a matter of law as of itscharacter, as a matter of fact.* * *In passing upon the issue of reasonableness,relative and comparative considerations are made.In general, when the danger is great and thewrongful conduct of the injured person is notserious, it is reasonable for the law to find arelationship and to impose a duty of protection. Adefendant in his own interest causing dangerousforces to operate or dangerous conditions to existshould reasonably protect those likely to beHARDY V. SOUTHWESTERN BELL TELEPHONE CO.

94 2. PROXIMATE CAUSEexposed to them and not reasonably in fault forthe exposure.Standing of reasonableness may change inchanging conditions and changing attitudestowards the conditions. But the principle ofreasonable conduct remains unchanged as the testof civil liability, in the absence of special rules. Itis because of such changes and because of theelements of reasonableness which resolve intoopinion that differences and conflict of rules comeabout. But it is a difference of application and nota principle.* * *"The object of the law being to safeguard andprotect the various rights in land, it is obviouslygoing quite far enough to limit the immunity tothe one whose rights have been invaded. Nor doeslogic or justice require more. A trespass is aninjury to the possession; and, as it is only hewhose possession is disturbed who can suetherefor, so it should be that he, alone, couldassert the unlawful invasion when suit is broughtby an injured trespasser. One should not beallowed `to defend an indefensible act' byshowing that the party injured was engaged indoing something which, as to a third person, wasunlawful." Humphrey v. Company, 100 Vt. 414,139 A. 440, 442, 56 A.L.R. 1011.Authority is understood to be nearlyunanimous in support of this view.* * *The circumstances of the decedent's deathgive rise to an unusual issue of its cause. Inleaning over from the girder and losing hisbalance he was entitled to no protection from thedefendant to keep from falling. Its only liabilitywas in exposing him to the danger of chargedwires. If but for the current in the wires he wouldhave fallen down on the floor of the bridge or intothe river, he would without doubt have been eitherkilled or seriously injured. Although he died fromelectrocution, yet, if by reason of his precedingloss of balance he was bound to fall except for theintervention of the current, he either did not havelong to live or was to be maimed. In such anoutcome of his loss of balance, the defendantdeprived him, not of a life of normal expectancy,but of one too short to be given pecuniaryallowance, in one alternative, and not of normal,but of limited, earning capacity, in the other.If it were found that he would have thusfallen with death probably resulting, thedefendant would not be liable, unless forconscious suffering found to have been sustainedfrom the shock. In that situation his life orearning capacity had no value. To constituteactionable negligence there must be damage, anddamage is limited to those elements the statuteprescribesIf it should be found that but for the currenthe would have fallen with serious injury, then theloss of life or earning capacity resulting from theelectrocution would be measured by its value insuch injured condition. Evidence that he wouldbe crippled would be taken into account in thesame manner as though he had already beencrippled.His probable future but for the current thusbears on liability as well as damages. Whether theshock from the current threw him back on thegirder or whether he would have recovered hisbalance, with or without the aid of the wire hetook hold of, if it had not been charged, are issuesof fact, as to which the evidence as it stands maylead to difference conclusions.Exception overruled. All concurred.Questions and NotesSuppose the jury were convinced that therewas a 30% chance that, but for the electrifiedwire, the plaintiff would have landed in the riverand floated to safety; but a 70% chance that hewould have landed on the rocks and been killed.What result?HARDY v. SOUTHWESTERN BELLTELEPHONE CO.910 P.2d 1024 (Okla. 1996)SIMMS, Justice.The United States District Court for theNorthern District of Oklahoma has certified thefollowing question of law to this Court pursuantto the Uniform Certification of Law Act, 20O.S.1991, § 1602:DILLON V. TWIN STATE GAS & ELECTRIC CO.

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 95Does the lost chance of survival doctrine setout in McKellips v. Saint Francis Hosp., Inc., 741P.2d 467 (Okla.1987), and restricted therein tocertain limited types of medical malpracticeactions, apply in an ordinary negligence case thatis not brought against a medical practitioner orhospital?Our answer is that an action for loss ofchance of survival may not be expanded to applyin an ordinary negligence action brought againstone other than a medical practitioner or ahospital.In light of the outcome of our decisionanswering this certified question, we find itunnecessary to consider issues regarding thelimitation of Southwestern Bell's liability byreason of tariffs on file with the OklahomaCorporation Commission.Plaintiff, Dr. Homer Hardy, brought thisaction for wrongful death against SouthwesternBell Telephone Company alleging that itsnegligence caused a failure of the 911 emergencysystem which resulted in his wife's death from aheart attack she suffered in their Tulsa home themorning of July 18, 1992, because plaintiff wasunable to promptly summon emergencyassistance and an ambulance for her.Ruling on the parties' motions for summaryjudgment, the trial court held that plaintiff couldnot establish defendant's action as the cause infact of his injury; that plaintiff failed to make thenecessary causal connection between the delaycaused by the system failure and the decedent'sdeath which is required by controlling authority.Finding that plaintiff could not meet hisburden of proof of causation in a traditionalnegligence action, the trial judge determined thequestion of the applicability of McKellips, withits reduced standard of causation, would beappropriate to certify to this Court, even thoughMcKellips explicitly limits application of thedoctrine to the area of medical malpractice andrejects the idea of expanding past that boundaryto ordinary negligence actions.In its order of certification the trial court setforth the following facts as relevant to thequestion certified and showing the nature of thecontroversy in which the question arose.Mrs. Hardy ("Deceased") suffered aheart attack in her home on July 18, 1992and died at Hillcrest Medical Center laterthat same day. From the time theDeceased suffered her heart attack to thetime EMSA arrived at Mrs. Hardy'shome, the Decedent's husband("Plaintiff") administered CardiovascularPulmonary Resuscitation ("CPR") on hiswife and attempted to summon EMSAusing the Emergency 911 System ("911System") of Defendant SouthwesternBell Company ("SWB"). Plaintiff wasunable to reach EMSA. After repeatedattempts to summon EMSA using the911 system, Plaintiff dialed the operator,who called the Fire Department andambulance. Plaintiff alleges hisunsuccessful attempts to summon EMSAwas due to a "system lock-up" resultingfrom SWB's decision, despite itsknowledge of previous incidents in otherareas of the country where the telephonesystem overloaded during similar typesof concert ticket sales, to allow the saleof Garth Brooks concert tickets byphone. Plaintiff contends the overload ofthe telephone system was the proximatecause of his wife's death. In response,Defendant claims decedent's death wasproximately caused by her heart attack.In deciding McKellips the Court joined witha growing number of jurisdictions which haverecently adopted the "loss of chance" doctrine inmedical malpractice actions. While the decisionshave some differences in their approaches, theessence of the action is that medical providers areliable for negligent treatment which decreased apatient's chance of survival for a better outcomeeven though the adverse result probably wouldhave occurred anyway. In the typical loss ofchance case the plaintiff is already suffering froma threatening condition or is subject to someexisting risk, unlike a healthy plaintiff in mostinjury actions. The plaintiff claims that thetortfeasor has negligently breached the very dutyimposed to prevent the harm suffered. Thenegligence increases the risk of harm byaggravating the effect of the pre-existingcondition or risk and/or taking away whateverchance for recovery existed before thenegligence.In McKellips, for instance, plaintiff brought awrongful death action against the hospital andphysician for negligent care of the decedent whowas brought to the hospital suffering chest pain.HARDY V. SOUTHWESTERN BELL TELEPHONE CO.

96 2. PROXIMATE CAUSEDecedent was diagnosed as having gastritis andreleased but died of cardiac arrest approximatelyfive hours later. Evidence established thatdecedent had a less than even chance for recoveryor survival even with non-negligent care. In thecase at bar, plaintiff states that he does not knowif his wife would have survived if the ambulancecould have been summoned and had arrived in itsnormal response time, but that the delay caused aloss of his wife's chance to survive the heartattack.As the Court explained in McKellips, undertraditional principles of causation in negligenceactions, plaintiff must present evidence that it is"more likely than not" that the harm suffered wascaused by defendant's negligence. Whileabsolute certainty is not required, merepossibility of causation is insufficient. When thematter is one of pure speculation or conjecture orthe probabilities evenly balanced, it is the duty ofthe court to direct a verdict for defendant becausea party will not be permitted to recover fromanother whose acts, however wrongful, are notthe proximate cause of the injury suffered.Recovery is barred therefore where defendant'streatment or diagnosis, even if clearly negligent,deprives a patient of only 50% or less chance ofavoiding harm. In the typical loss of chance case,pre-existing illness or injuries have alreadylowered the patient's chance of avoiding theultimate harm. The patient already has a diseaseor condition from which death or impairmentwould more than likely result so that even ifdefendant's negligence will deprive the patient ofall existing chance to avoid the harm, traditionalcausation principles will totally bar recovery. Id.,at 470- 471.In McKellips the Court discussed the varioustheories upon which loss of chance malpracticecases have been adopted to ameliorate thisperceived harsh result of the all-or-nothingtraditional causation standard. Some courts haverelaxed the degree of certainty necessary for thesubmission of the issue of proximate cause fromthe reasonable probability standard to asubstantial factor test. In those cases, theultimate harm, rather than the lost chance itself isthe focus so that full damages are awarded in thesame manner as if plaintiff had established "butfor" causation for the original harm.Relying on the Second Restatement of Torts,§ 323(a) some States impose liability on ashowing that defendant's negligence was asubstantial factor in increasing plaintiff's risk ofharm or reducing plaintiff's chances of obtaininga better result. Some jurisdictions view the lostchance itself as the injury, treating it as aseparate, distinct cause of action. The plaintiffdoes not recover for the value of the seriousmedical condition or death, only for the lostchance of recovery. Issues of the standard ofcausation are not involved because the focus ofthe proximate cause inquiry is limited to whetherit is more likely than not that defendant'smalpractice decreased a chance of survival. Id.,at 471-473.After considering the several variations ofanalysis of the doctrine, the McKellips courtadopted what has been referred to as a "hybrid"approach, applying a relaxed standard ofcausation but limiting damages to the value of thelost chance. The court adopted the increased riskanalysis of § 323, allowing a plaintiff to go thejury not only with evidence of increased risk, butalso with evidence of substantial decrease inchances for survival. Id., at 475-477. See Kramerv. Lewisville Memorial Hospital, 858 S.W.2d 397(Tex.1993).As recognized by the trial court in the instantcase, the McKellips court announced it wasspecifically limiting the application of the loss ofchance doctrine adopted that day to:a limited type of medicalmalpractice case where the dutybreached was one imposed to prevent thetype of harm which a patient ultimatelysustains and because of the inherentnature of such a case a plaintiff is unableto produce evidence of causationsufficient to meet the traditional rule ofcausation. We note that our decisiontoday does not change the traditionalprinciples of causation in the ordinarynegligence case and this new rule appliesonly in those limited situations aspresented here. At 474-475.In its conclusion, the court stated:In summary, we hold in medicalmalpractice cases involving the loss of aless than even chance of recovery orsurvival where the plaintiff shows thatthe defendant's conduct caused asubstantial reduction of the patient'schance of recovery or survival,irrespective of statistical evidence, thePURCELL V. ASBESTOS CORPORATION, LTD.

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 97question of proximate cause is for thejury. We further hold if a jurydetermines the defendant's negligence isthe proximate cause of the patient'sinjury, the defendant is liable for onlythose damages proximately caused by hisnegligence which aggravated apre-existing condition. Consequently, atotal recovery for all damagesattributable to death are not allowed anddamages should be limited in accordancewith the prescribed method of valuation.At 477.The public policy considerations which arereflected in the judicial decisions creating thisremarkable exception to the traditional rule of thestandard of proof of causation focus on thespecial relationship of the physician and patientand the expression of apprehension that failure toadopt the loss of chance doctrine in medicalmalpractice suits would place patients with preexistingconditions in peril.In Aasheim v. Humberger, 215 Mont. 127,695 P.2d 824, 828 (1985), the Supreme Court ofMontana determined that a patient was entitled toa loss of chance instruction where her physician'sfailure to order diagnostic x-rays resulted infailure to properly diagnose cancer and patient'sloss of chance to preserve her knee. The courtexplained:We feel that including `loss ofchance' within causality recognizes therealities inherent in medical negligencelitigation. People who seek medicaltreatment are diseased or injured.Failure to diagnose or properly treatdenies the opportunity to recover.Including this lost opportunity within thecausality embrace gives recognition to areal loss consequence of medical failure.Addressing these policy concerns inMcKellips, the Court pointed out that a healthcare professional who has deprived a patient of asignificant chance for recovery throughnegligence should not be able to rely on theinevitability of the patient's condition inasmuch asdefendant put the chance for improvement"beyond the possibility of realization". Werecognized that "health care providers should notbe given the benefit of the uncertainty created bytheir own negligent conduct. To hold otherwisewould in effect allow care providers to evadeliability for their negligent actions or inactions tosituations in which patients would not necessarilyhave survived or recovered, but still would have asignificant chance of survival or recovery." At474.We also discussed there the subversion of thedeterrence function of tort law which would occurif recovery is denied for statistically irrefutableloss suffered by reason of conduct which breachesthe duty imposed to prevent the very type of harmthe plaintiff ultimately sustains. We set forth theobservation of the Supreme Court of Kansas inRoberson v. Counselman, 235 Kan. 1006, 686P.2d 149 (1984), criticizing the "all or nothing"requirement of traditional causation in medicalmalpractice cases, stating:There are sound reasons of publicpolicy involved in reaching this result.The reasoning of the district court herein(which is similar to the extreme positiontaken in Cooper v. Sisters, 27 Ohio St.2d242, 272 N.E.2d 97), in essence, declaresopen season on critically ill or injuredpersons as care providers would be freeof liability for even the grossestmalpractice if the patient had only afifty-fifty chance of surviving the diseaseor injury even with proper treatment.Under such rationale a segment of societyoften least able to exercise independentjudgment would be at the mercy of thoseprofessionals on whom it must rely forlife-saving health care.In Falcon v. Memorial Hospital, 436 Mich.443, 462 N.W.2d 44 (1990), the Supreme Court ofMichigan recognized that a patient's loss of a37.5% opportunity of living because of aphysician's negligent failure to act could form thebasis of a medical malpractice action. The courtspoke of the expectations of patients about theirphysicians and noted that "a patient goes to aphysician precisely to improve his opportunitiesof avoiding, ameliorating or reducing physicalharm and pain and suffering ... that is why[patients] go to physicians. That is whatphysicians undertake to do. That is what they arepaid for. They are, and should be, subject toliability if they fail to measure up to the standardof care." 462 N.W.2d at 52. The court concludedthat injury which results from medical malpracticeincludes not only physical harm, but the loss ofHARDY V. SOUTHWESTERN BELL TELEPHONE CO.

98 2. PROXIMATE CAUSEopportunity of avoiding physical harm so that aphysician who deprives a patient of a 37.5%chance of surviving which she would have had ifthe physician had not failed to act, is subject to aloss of chance of survival action.The public policy concerns of medicalpractice which have been held to justify a reducedburden of causation in lost chance cases do nottransfer over to ordinary negligence cases. Publicpolicy is not served by extending the causationexception to the "but for" rule to other tortfeasors.Under the decisions discussed and other "loss ofchance" medical provider opinions, the physicianhad the opportunity to perform properly under theterms of the physician-patient special relationshipbut was alleged to have failed to do so.The essence of the doctrine is the specialrelationship of the physician and the patient. Inthese cases the duty is clear, the negligence isunquestioned and the resulting harm, thedestruction of a chance for a better outcome, hasobvious value and is not so speculative as to bebeyond being reasonably considered a result ofdefendant's negligence.In Daugert v. Pappas, 104 Wash. 2d 254, 704P.2d 600 (1985), the Supreme Court ofWashington rejected an attempt to applyprinciples of loss of chance to an action for legalmalpractice based on failure to file an appeal. Thecourt found that while the loss of chance torecover from misdiagnosis of cancer such as waspresent in Herskovits v. Group Health Coop ofPuget Sound, 99 Wash. 2d 609, 664 P.2d 474(1983), resulted in a very real injury with definitevalue which would require compensation, there isno commensurate harm, no lost chance, in a legalmalpractice case as the matter may eventually bereviewed. Neither, held the court, is there in alegal malpractice action a separate anddistinguishable harm, a diminished chance.Plaintiff presents no convincing argumentsregarding application of the loss of chancedoctrine to this situation. In Coker v.Southwestern Bell Telephone Co., 580 P.2d 151(Okl.1978), we held that plaintiff did not state acause of action against the telephone company fordamages sustained when fire destroyed his placeof business with the theory that the defectivetelephone prevented him from summoningemergency assistance to extinguish the fire. Weheld that the petition did not assert the requisitecausal connection between alleged negligence ofthe defendant and the resulting damages. Weobserved that it would be "necessary to heapconclusion upon conclusion as to the courseevents would have taken had the telephoneoperated properly" in order to establish the causalconnection between the defective telephone andthe ultimate destruction of appellant's business.Addressing the issue of causation we found thefailure of phone service was too remote fromplaintiff's loss to establish grounds for recoveryand stated "that the number and character of therandom elements which must come together inprecisely the correct sequence at exactly the righttime in order for it to be established that failure oftelephone service was an efficient cause ofappellant's loss so far removes appellee's act ofnegligence from the ultimate consequences as tobreak any asserted causal connection." Id., at 154.We relied in large part on a Washingtondecision, Foss v. Pacific Telephone and TelegraphCo., 26 Wash. 2d 92, 173 P.2d 144, 149 (1946),which we noted had ruled on facts virtuallyidentical to Coker. In Foss the Supreme Court ofWashington had collected and analyzed manydecisions addressing the very points weconsidered regarding causation and we set forththe following instructive discussion of causationfrom that decision:Appellant's claim of causation restson pure speculation. Surely we could nothold that anyone could ever say that ifrespondent's operator had promptlyanswered appellant's call and madeconnection of his telephone with the firedepartment in Kent that the firedepartment would have immediatelyanswered the telephone; would havepromptly left the house where the firedepartment equipment is kept; wouldhave proceeded rapidly to the scene ofthe fire without mishap; would havequickly arranged its equipment to fightthe fire with only minor damage to thebuilding.The trier of fact in the instant case wouldlikewise be forced to heap conclusion uponconclusion as to the course events would havetaken if the 911 system had worked properly andhave no more than mere conjecture as to whatdamages plaintiff suffered by reason ofdefendant's action. Plaintiff's claim of causationis far too speculative and too remote to besustained here. Plaintiff presents us with noconvincing argument as to why a loss of chancePURCELL V. ASBESTOS CORPORATION, LTD.

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 99relaxed standard of causation limited by the Courtto medical malpractice actions should be appliedhere to reduce his burden.We would be remiss in our duty if we failedto observe here that the application of the lostchance of survival doctrine to these facts as urgedby plaintiff would cause a fundamentalredefinition of the meaning of causation in tortlaw. While the majority of the Court werepersuaded in McKellips that the particular factsand circumstances of that case required creatingan exception to the "more likely than not"requirement of traditional causation, we refuse toeffect a total restructuring of tort law by applyingthe lost chance doctrine beyond the establishedboundary of medical malpractice to ordinarynegligence actions.ALMA WILSON, C.J., KAUGER, V.C.J., andLAVENDER, HARGRAVE, OPALA,SUMMERS and WATT, JJ., concur.HODGES, J., disqualified.Questions and Notes1. What threshold would you adopt as theplaintiff's burden of proof on the issue ofcausation?2. Go back to Dillon. Assume the jury wouldfind the probability of landing in water andswimming to safety was 70% and the chance oflanding on the rocks (and death) was 30%. Whatresult? Is that result consistent with your answerto the preceding question?3. For a view contrary to Hardy, see JonathanP. Kieffer, The Case for Across-the-BoardApplication of the Loss-of-Chance Doctrine, 64Def. Couns. J. 568 (1997). For a generalconsideration of the topic, see Michelle L.Truckor, The Loss of Chance Doctrine: LegalRecovery for Patients on the Edge of Survival, 24U. Dayton L. Rev. 349 (1999).4. Loss of a chance continues to generateinterest. See Joseph H., King, Jr., "Reduction ofLikelihood" Reformulation and other Retrofittingof the Loss-of-a-Chance Doctrine. 28 U. Mem.L. Rev. 491 (1998).c. Multiple Redundant Causes: The"Substantial Factor" TestPURCELL v. ASBESTOSCORPORATION, LTD153 Or. App. 415, 959 P.2d 89 (1998)DEITS, Chief Judge.Defendants Owens-Corning FiberglasCorporation (Owens) and E.J. Bartells Company(Bartells) appeal and plaintiff cross-appeals fromthe judgment for plaintiff in this negligence andproducts liability action arising from anasbestos-related disease that plaintiff suffered as aresult of exposure to products manufactured bydefendants. 4 We affirm on the appeal and on thecross-appeal.Plaintiff developed mesothelioma, a cancerof the lining of the lungs, as a result of inhalingairborne asbestos fibers. He was exposed to theasbestos during his 35-year employment withseveral employers at numerous job sites. Duringmany of plaintiff's working years, asbestos wasused commonly in fire-resistant products such asinsulation products and wall board. According toexpert testimony, inhaled asbestos fibers may liedormant in the lungs and pleura for 10 to 60 yearsbefore developing into cancer. Oneasbestos-related disease expert testified that evenone exposure to airborne asbestos fibers cancause mesothelioma.Plaintiff's occupational exposure to airborneasbestos fibers began in 1955 at Jantzen KnittingMills, where he worked as an apprenticemachinist. As an apprentice, plaintiff was4In the balance of this opinion, we will refer to thedefendants "Owens" and "Bartells" individually and referto them as "defendants" collectively. Plaintiff, JohnPurcell, died during the course of this litigation, and hissurviving spouse has been substituted as a party.nevertheless will refer to John Purcell as "plaintiff."WeHARDY V. SOUTHWESTERN BELL TELEPHONE CO.

100 2. PROXIMATE CAUSEexposed to airborne asbestos fibers as heobserved other workers apply formed half-roundsof insulation and powder, mixed with water tocreate asbestos "mud" or cement, which sealedthe insulation around steam lines. Plaintiff alsoworked as an electrician for Allied Electric forabout two years beginning in 1959, and for BohmElectric from 1961 to 1973. Plaintiff wasemployed as an electrician by the PortlandSchool District (school district) in 1973-74 and1984-93. While working as an electrician,plaintiff was exposed to airborne asbestos fibersfrom multiple sources, includingasbestos-containing sheet cement boards and dustfrom deteriorating heat and hot water pipeinsulation at more than 100 sites. Those sitesincluded schools, paper mills, shopping centers,jails, hotels, and manufacturing plants. Plaintiffstopped working in 1993, when he was diagnosedwith mesothelioma.During his many years of employment,plaintiff was exposed to several types of asbestosproducts. Bartells distributed twoasbestos-containing product lines, Eagle-Pichercement and Johns-Manville cements andinsulation. The Johns- Manville products weredistributed from 1955 to 1972 and includedThermobestos and 85 percent Magnesium, whichwas a cement of 85 percent magnesium and 15percent asbestos. From 1958 to 1972, Owens andOwens-Illinois, a subsidiary, manufactured andsold Kaylo, which was a calcium-silicate basedproduct that was combined with asbestos. Kaylowas sold in formed blocks as an insulatingmaterial to be placed around steam pipes and hotwater heaters. Kaylo cement, a loose materialcontaining up to 100 percent asbestos, was mixedwith water and applied in the joints and betweenblocks to secure and seal the insulation.Plaintiff brought this action in November1993, against Owens, Bartells and 16 otherdefendants, alleging strict products liability andnegligence and seeking compensatory andpunitive damages for personal injuries resultingfrom exposure to asbestos-containing materials.Plaintiff alleged, in relevant part: "E. J. BartellsCompany ... was engaged in the manufacture,distribution and sale of asbestos-containingrefractory, building and insulation materials. " ..."Owens-Corning Fiberglas was ... engaged in themanufacture, sale and distribution ofasbestos-containing insulation and buildingmaterials. " ... "Defendants' asbestos productswere unreasonably dangerous and defective inthat: "1. Defendants did not provide sufficient oradequate warnings and/or instructions of theharm that could be caused by exposure todefendants' asbestos-containing products; "2.The asbestos-containing products of thedefendants caused pulmonary disease and/orcancer if inhaled by individuals in their workplace. "3. Individual workmen were not advisedto utilize proper respiratory protection and wereexposed to airborne asbestos fibers within theirworking environment."The case proceeded to trial against 12defendants, nine of which settled and one ofwhich received a directed verdict in its favor.Bartells and Owens remained as defendants. Thejury awarded plaintiff $307,000 in economicdamages and $1.5 million in noneconomicdamages against both defendants. It alsoawarded plaintiff $3 million in punitive damagesagainst Owens. Pursuant to ORS 18.455 (1993),the court reduced the amount of the verdictagainst those defendants by the amount of thesettlements between plaintiff and the otherdefendants.Defendants first assign error to the denial oftheir motions for a directed verdict. 5 Owensasserts that plaintiff's proof was insufficient toestablish "medical causation" under the properlegal standard. Additionally, both defendantscontend that, even assuming that plaintiff'sevidence was sufficient in that regard, henevertheless failed to offer adequate proof of hisexposure to their asbestos-containing products, asdistinct from products of other manufacturers, topermit the inference that their products caused hisdisease.We review the denial of a motion for adirected verdict by considering the evidence,including the inferences, in the light mostfavorable to plaintiff, the nonmoving party.Brown v. J.C. Penney Co., 297 Or. 695, 705, 688P.2d 811 (1984). The verdict cannot be set aside"unless we can affirmatively say that there is noevidence from which the jury could have foundthe facts necessary to establish the elements ofplaintiff's cause of action." Id.; OR. CONST., Art.5 Plaintiff contends, on various grounds, that defendantsdid not adequately preserve those assignments of error ortheir arguments under them. We have consideredplaintiff's arguments and conclude without discussion thatdefendants have adequately preserved their assignmentsand arguments.PURCELL V. ASBESTOS CORPORATION, LTD.

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 101VII (Amended), s 3.We turn first to the medical causation issue.Plaintiff's expert, Dr. Andrew Churg, is apathologist who specializes in the diagnosis ofmesothelioma. He testified that plaintiff'sexposure to airborne asbestos fibers caused thedisease. According to Churg, inhaled asbestosfibers have a latency period of from 10 to 60years, and at least 15 years generally will elapsebetween the victim's initial exposure and theonset of mesothelioma. Additionally, Churgtestified that a single exposure to asbestos fiberscan cause mesothelioma, with each subsequentexposure exponentially increasing the risk of thedisease. Thus, Churg concluded that all ofplaintiff's exposure to asbestos fibers over theyears "contributed to some degree" to hismesothelioma.As noted above, Owens contends thatplaintiff's evidence was insufficient to establishcausation. According to Owens, plaintiff wasrequired and failed to show that exposure to itsproducts, in itself, caused plaintiff'smesothelioma or that plaintiff would not havesuffered the disease in the absence of exposure toOwens' products. Owens reasons that, becauseplaintiff did not prove that his mesothelioma wasnot caused by exposure to the products of otherasbestos manufacturers, the fact that plaintiff mayhave been exposed to an Owens' product islegally insufficient to support a finding ofcausation or liability against it. For the samereason, Owens also argues that Churg's testimonydid not establish that exposure to Owens'products could have been the medical cause ofthe disease: It asserts that plaintiff's evidence didnot show that those exposures were a "substantialfactor" in causing the disease.The Oregon Supreme Court articulated the"substantial factor" test as the standard forproving causation and for assessing the"respective liability of multiple defendants" inMcEwen v. Ortho Pharmaceutical, 270 Or. 375,528 P.2d 522 (1974). The plaintiff there ingestedbirth control pills manufactured by twodefendants, neither of which contained warningsabout possible side effects that left her blind inone eye. The plaintiff brought a products liabilityaction against both manufacturers for failing toprovide adequate warnings. The court stated thatthe "respective liability of multiple defendantsdepends upon whether the negligence of each wasa substantial factor in producing the complainedof harm. If both [defendants] were negligent andtheir negligence combined to produce plaintiff'sinjuries, then the negligence of [one] wasconcurrent with that of [the other] and does notinsulate [the other] from liability. This is truealthough the negligent omissions of eachdefendant occurred at different times and withoutconcerted action. Nor is it essential to ... liabilitythat its negligence be sufficient to bring aboutplaintiff's harm by itself; it is enough that the[defendant] substantially contributed to theinjuries eventually suffered by [the plaintiff]." Id.at 418, 528 P.2d 522. (Citations omitted;emphasis supplied.)The trial court properly applied that causationstandard here. Owens, Bartells and possiblyothers manufactured or distributed the asbestos inthis case. Plaintiff's expert testified that anyminute exposure to airborne asbestos fibers couldcause mesothelioma and that, once plaintiff hadbeen exposed, any subsequent exposuresexponentially increased the likelihood ofcontracting the disease. Examining the evidencein the light most favorable to plaintiff, he wasexposed at different times over the course of manyyears to the asbestos products of variousmanufacturers. Those exposures combined tocreate an increased risk of mesothelioma. Thus, ifplaintiff was exposed to defendants' products, thejury could find that defendants substantiallycontributed to plaintiff's disease, thereby meetingthe causation requirement.Defendants assert that we should apply amore stringent variation of the substantial factortest to establish causation in asbestos cases, suchas the "frequency, regularity, and proximity" testused in some other jurisdictions. Under that test, aplaintiff must show that he or she worked inproximity, on a regular basis, to asbestos productsmanufactured by a particular defendant. See, e.g.,Tragarz v. Keene Corp., 980 F.2d 411, 420 (7thCir.1992); Lohrmann v. Pittsburgh Corning Corp.,782 F.2d 1156, 1162-63 (4th Cir.1986). However,even the jurisdictions that follow the "frequency,regularity, and proximity" test apply it less rigidlywhen dealing with mesothelioma, because it canbe caused by very minor exposures. Tragarz, 980F.2d at 421; Thacker v. UNR Industries, Inc., 151Ill.2d 343, 177 Ill. Dec. 379, 603 N.E.2d 449, 460(1992). As the court said in Wehmeier v. UNRIndustries, Inc., 213 Ill.App.3d 6, 157 Ill. Dec.251, 572 N.E.2d 320, 337 (1991): "Where there iscompetent evidence that one or a de minimusnumber of asbestos fibers can cause injury, a jurymay conclude the fibers were a substantial factorPURCELL V. ASBESTOS CORPORATION, LTD.

102 2. PROXIMATE CAUSEin causing a plaintiff's injury."In Ingram v. AC&S, Inc., 977 F.2d 1332,1343-44 (9th Cir.1992), the Ninth Circuit rejectedthe "frequency, regularity, or proximity" test as thestandard of causation under Oregon law. In thatcase, a former insulator and machinist whocontracted asbestosis sued several asbestosmanufacturers and received favorable verdicts.The defendants appealed, contending that therewas insufficient evidence of causation to supportthe verdict because the insulator worked for only ashort time with the defendants' products andevidence showing the machinist's exposure wasdescribed as "somewhat scant." The courtconcluded in Ingram: "The more stringent testsuggested by [the defendant] has no place in ajurisdiction such as Oregon which looks only tocause-in-fact ... . Under Oregon law, onceasbestos was present in the workplace, it is thejury's task to determine if the presence of thatasbestos played a role in the occurrence of theplaintiff's injuries." Id. We agree with thatunderstanding of Oregon law.Defendants also argue that the OregonSupreme Court's causation analysis in Senn v.Merrell-Dow Pharmaceuticals, 305 Or. 256, 751P.2d 215 (1988), is applicable here. In that case,the plaintiff could not establish which of twodefendant drug manufacturers supplied thevaccine that caused her injuries. Answeringcertified questions, the court concluded that itwould not apply a theory of alternative liabilitywhere "neither defendant is able to produceexculpatory evidence," because such a theorywould impose liability when the "probability ofcausation is 50 percent or less" under theplaintiff's evidence. Id. at 269, 751 P.2d 215.Defendants argue here that holding them liable inthis case would do exactly that--impose liabilitywhen it is "less probable than not" that eitherparty was responsible for plaintiff's mesothelioma.Defendants' reliance on Senn is misplaced.There, only one defendant could have caused theplaintiff's harm because she used only oneproduct. In this case, as in McEwen, multipleexposures to the products of more than onedefendant could have combined to cause plaintiff'sinjury. We conclude that, in these circumstances,the proper inquiry under McEwen is whetherdefendants substantially contributed to plaintiff'sinjuries. 270 Or. at 418, 528 P.2d 522. In view ofthe medical evidence that a single exposure couldhave caused plaintiff's disease and that allexposures contributed to the likelihood of hiscontracting mesothelioma, a reasonable jury couldfind that the exposure to either or both ofdefendants' products was a substantial factor incausing plaintiff's disease.Defendants further contend, however, thatplaintiff failed to provide sufficient evidence tolink their products to the work sites at which hesought to show that he was exposed to airborneasbestos fibers. Plaintiff worked at many sites,and his evidence was directed at showing that oneor both of the defendants' products were located atvarious sites at the times that plaintiff workedthere. The trial court held that plaintiff's proofwas sufficient to go to the jury with respect to thePortland International Airport, various locationsoperated by the Portland School District, theClackamas County Jail, the Cosmopolitan MotorHotel, Mt. Hood Community College and LloydCenter. We agree with the trial court in eachinstance. 6 Although the parties make detailedsite-by-site arguments about the proof ofplaintiff's exposures to defendants' products, it isunnecessary for us to engage in similar detail inour discussion, given the legal standard that wehave held applies to the question. Plaintiff'sevidence sufficed to allow the jury to infer that hewas exposed to asbestos-containing products ofboth defendants, singly or in combination, at eachof the work locations that the trial court allowedthe jury to consider and that the exposures beganin 1959 and continued until at least the 1980s.The exposures at some of the sites were recurrent.The number of discrete sites at which plaintiff'sevidence showed that he was exposed todefendants' products in his work for the schooldistrict alone exceeded 100.Defendants make extensive and detailedarguments challenging the adequacy of plaintiff'sevidence that he was exposed to the products ofeither or both of them at various places where heworked. However, defendants' arguments fail todemonstrate that the proof was insufficient butamount instead to attacks on the weight of theevidence. Those arguments should have been andprobably were addressed to the jury. However,our review is limited to whether the evidence wasadequate to allow the jury to find what it did. Weconclude that it was.6 The trial court also concluded that the evidence wasinsufficient to go to the jury with respect to a number ofother work sites.PURCELL V. ASBESTOS CORPORATION, LTD.

§ A. BUT-FOR CAUSATION (CAUSE-IN-FACT) 103Owens also makes a specific contention thatcertain evidence regarding exposures at aparticular work location--Benson HighSchool--was improperly admitted and should havebeen stricken. This contention requires separatediscussion because, if it is correct, the jury'sfinding could have been based on inadmissibleevidence, even though there was ample otherevidence to support the finding. William Barnes,a retired Owens asbestos worker, testified ondirect examination that he did not apply insulationat Benson but had surveyed the school andidentified Kaylo as the brand of asbestospreviously installed. On cross-examination byOwens' attorney, Barnes stated that a friend whoinstalled pipe covering at Benson told him thatKaylo was used. Owens objected and moved tostrike Barnes' product identification as hearsay.Plaintiff's counsel then inquired further aboutthe basis for Barnes' product identification, towhich Barnes responded that Kaylo "had a harderfinish and is more brittle" than the magnesiumproduct and thus, after examining the producthimself, he believed that it was Kaylo. The courtgave a curative instruction to the jury, directing itto disregard Barnes' testimony about what hiscolleague told him, but allowing the jury toconsider Barnes' firsthand knowledge.Owens frames its assignment of error aschallenging the court's denial of his motion tostrike the testimony. Plaintiff responds that, ifthere was error, it was invited, because Owensitself elicited the testimony. See James v. GeneralMotors of Canada, Ltd., 101 Or.App. 138, 146 n.4, 790 P.2d 8, rev. den. 310 Or. 243, 796 P.2d 360(1990). Be that as it may, and assuming that themotion in the trial court and the assignment hereare sufficient to preserve and raise the issue, weconclude that the curative instruction that thecourt gave adequately diffused any likelihoodthat the jury improperly considered the hearsaytestimony. Indeed, the instruction effectivelygave Owens exactly what it now contends itshould have received--the striking of the hearsayevidence. We hold that the trial court correctlydenied defendants' motions for a directed verdict.* * *Affirmed on appeal and on cross-appeal.§ B. Legal Cause: PolicyConsiderations PrecludingLiabilityIntroductory Note. As noted earlier, theconcept of "proximate cause" is rooted in notionsof fairness: even though the defendant's conductmay have been a "but-for" cause of the plaintiff'sinjuries, is it fair to hold the defendant liable forthem? For example, in Berry v. Sugar Notch,infra, the court decided that even if it were truethat the motorman's negligence (exceeding thespeed limit) was a cause-in-fact of the injury, itwould not be fair to hold him liable, since it wassimply a chance occurrence. This sectionidentifies three different areas where courts willrefuse to impose liability even where but-forcausation is present: (1) where the defendant'sconduct did not tend to increase the risk of theplaintiff's injury; (2) where the negligence ofanother tortfeasor (often called a "superseding"tortfeasor) was so reprehensible as to make theinitial defendant's negligence merely a "remote"cause; or (3) where the plaintiff was so farremoved in time and/or space from the defendant'sinitial act of negligence that an injury to thatplaintiff was unforeseeable, thus making it unfairto impose liability.1. Increased Risk v. Mere ChanceBERRY v. SUGAR NOTCH191 Pa. 345, 43 A. 240 (1899)FELL, J.The plaintiff was a motorman in the employof the Wilkesbarre & Wyoming Valley TractionCompany, on its line running from Wilkesbarre tothe borough of Sugar Notch. The ordinance byvirtue of which the company was permitted to layits track and operate its cars in the borough ofSugar Notch contained a provision that the speedof the cars while on the streets of the boroughshould not exceed eight miles an hour. On the lineof the road, and within the borough limits, therewas a large chestnut tree, as to the condition ofwhich there was some dispute at the trial. Thequestion of the negligence of the borough inpermitting it to remain must, however, beconsidered as set at rest by the verdict. On the dayof the accident the plaintiff was running his car onthe borough street in a violent windstorm, and asPURCELL V. ASBESTOS CORPORATION, LTD.

104 2. PROXIMATE CAUSEhe passed under the tree it was blown down,crushing the roof of the car, and causing theplaintiff's injury. There is some conflict oftestimony as to the speed at which the car wasrunning, but it seems to be fairly well establishedthat it was considerably in excess of the ratepermitted by the borough ordinance. We do notthink that the fact that the plaintiff was runninghis car at a higher rate of speed than eight milesan hour affects his right to recover. It may be thatin doing so he violated the ordinance by virtue ofwhich the company was permitted to operate itscars in the streets of the borough, but he certainlywas not, for that reason, without rights upon thestreets. Nor can it be said that the speed was thecause of the accident, or contributed to it. It mighthave been otherwise if the tree had fallen beforethe car reached it, for in that case a high rate ofspeed might have rendered it impossible for theplaintiff to avoid a collision which he eitherforesaw or should have foreseen. Even in that casethe ground for denying him the right to recoverwould be that he had been guilty of contributorynegligence, and not that he had violated a boroughordinance. The testimony, however, shows that thetree fell upon the car as it passed beneath. Withthis phase of the case in view, it was urged onbehalf of the appellant that the speed was theimmediate cause of the plaintiff's injury, inasmuchas it was the particular speed at which he wasrunning which brought the car to the place of theaccident at the moment when the tree blew down.This argument, while we cannot deny itsingenuity, strikes us, to say the least, as beingsomewhat sophistical. That his speed brought himto the place of the accident at the moment of theaccident was the merest chance, and a thing whichno foresight could have predicted. The same thingmight as readily have happened to a car runningslowly, or it might have been that a high speedalone would have carried him beyond the tree to aplace of safety. It was also argued by theappellant's counsel that, even if the speed was notthe sole efficient cause of the accident, it at leastcontributed to its severity, and materiallyincreased the damage. It may be that it did. Butwhat basis could a jury have for finding such to bethe case? and, should they so find, what guidecould be given them for differentiating betweenthe injury done this man and the injury whichwould have been done a man in a similar accidenton a car running at a speed of eight miles an houror less? The judgment is affirmed.Questions and Notes1. Suppose a 15-year-old without a license todrive gets into an accident. What must the victimprove - in terms of negligence - in order torecover?2. Same facts as #2, except that the driver is a23-year-old with an expired license. What result?2. Superseding Tortfeasors: Breakingthe Chain of CausationCROWE V. GASTON134 Wash. 2d 509, 951 P.2d 1118 (1998)MADSEN, Justice.Joel Crowe seeks review of a trial court ordergranting defendants Oscar's and KevinRettenmeier's motions for summary judgment.At issue is whether Oscar's can be liable foralcohol-related injuries to Crowe when Oscar'ssold alcohol to a minor who shared it withanother minor who then injured Crowe. We findthat Oscar's can be held liable and reverse thetrial court's order granting Oscar's motion forsummary judgment.Also at issue is whether Kevin Rettenmeier,the minor who bought the alcohol, can be foundliable for Crowe's injuries for supplying alcoholto the minor who then injured Crowe. Weconclude that he cannot and affirm the trialcourt's order granting Rettenmeier's motion forsummary judgment.Statement of the CaseOn February 11, 1994, Kevin Rettenmeier,age 17, met Joe Schweigert and two ofSchweigert's friends, Brad Rosenquist and AdamFitzpatrick, all of whom were under 21, andagreed to buy them beer. They all proceeded toPURCELL V. ASBESTOS CORPORATION, LTD.

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 105Oscar's, Rettenmeier traveling in a separate car.When they arrived, Schweigert and his friendsgave money to Rettenmeier, who then entered thestore and purchased beer while the others stayedin their car out of sight. It is not clear from therecord how much beer was purchased.Rettenmeier purchased either twenty-fourtwelve-ounce cans plus two 40 ounce bottles,twelve twelve-ounce cans, or four to possiblyseven 40 ounce bottles of beer. Rettenmeier gaveall the beer he purchased to Schweigert and hisfriends.Afterward, the group decided to go over tothe house of another acquaintance, Steve Dean.At Dean's house they were joined by Joel Croweand others. The group drank beer and playedpool; however, Crowe claims he did not drinkany beer. Later that evening, Crowe accepted aride home by an intoxicated Fitzpatrick. Duringthe ride, Fitzpatrick drove off the road and hit atree, causing injuries to Crowe.Crowe sued Oscar's and Rettenmeier, amongothers, for damages. Crowe claimed that Oscar'sand Rettenmeier were liable for his injuriesbecause they had furnished the alcohol thatcaused Fitzpatrick's intoxication. The trial courtgranted Oscar's and Rettenmeier's motions forsummary judgment. Crowe appealed the trialcourt's order to the Court of Appeals. This courtgranted the Appellant's motion to transfer thecase from the Court of Appeals.Standard of ReviewAn appellate court engages in the samereview as the trial court when reviewing asummary judgment order. Reynolds v. Hicks, 134Wash. 2d 491, 495, 951 P.2d 761, 763 (1998).Summary judgment is appropriate when there isno genuine issue of material fact and the movingparty is entitled to judgment as a matter of law.Id. If, after considering the evidence in the lightmost favorable to the nonmoving party,reasonable minds could come to but oneconclusion, then the motion for summaryjudgment will be granted. Id.Vendor LiabilityThe issue presented in this case is whetherOscar's, a commercial vendor, can be liable forinjuries to Crowe which resulted from Oscar'sillegal sale of alcohol to Kevin Rettenmeier.Crowe bases his claim of negligence on Oscar'sviolation of RCW 66.44.320 1 and RCW66.44.270, 2 which prohibit the sale of alcohol toanyone under the age of 21.In order to prove an actionable claim fornegligence, Crowe must show (1) the existence ofa duty to the plaintiff, (2) a breach of that duty,(3) a resulting injury, and (4) the breach as theproximate cause of the injury. See Reynolds, 951P.2d at 763. Oscar's argument in this case istwo-fold. First Oscar's contends that it did notowe a duty of care to Crowe. Second, Oscar'sasserts that, even if it owed a duty of care toCrowe, it was not the legal cause of Crowe'sinjuries.A. Duty of CareWe turn first to whether Oscar's owed a dutyof care to Crowe. The existence of a legal duty isa question of law. Schooley v. Pinch's DeliMarket, Inc., 134 Wash. 2d 468, 951 P.2d 749,752 (1998). Washington courts have recognizedthat a legislative enactment may prescribe astandard of conduct required of a reasonableperson that when breached may be introduced tothe trier of fact as evidence of negligence. Id.,951 P.2d at 751-52; Purchase v. Meyer, 108Wash. 2d 220, 737 P.2d 661 (1987). Todetermine whether a defendant owes a duty ofcare to a complaining party based upon astatutory violation, this court has adopted theRestatement (Second) of Torts § 286 3 which,1 RCW 66.44.320 provides: "[e]very person who shall sellany intoxicating liquor to any minor shall be guilty of aviolation of Title 66 RCW."2 RCW 66.44.270(1) provides: "[i]t is unlawful for anyperson to sell ... liquor to any person under the age oftwenty-one...."3 RESTATEMENT (SECOND) OF TORTS § 286 (1965)provides:The court may adopt as the standard of conduct of areasonable man the requirements of a legislativeenactment ... whose purpose is found to be exclusively orin part(a) to protect a class of persons which includes the onewhose interest is invaded, and(b) to protect the particular interest which is invaded, andCROWE V. GASTON

106 2. PROXIMATE CAUSEamong other things, requires the injured person tobe within the class of persons the statute wasenacted to protect. Schooley, 951 P.2d at 752-53.Oscar's argues that this prong of the Restatementtest is not satisfied.Citing our decisions in Young and Purchase,Oscar's contends that Crowe is not a member ofthe protected class because only minor purchasersand third persons injured by the minor purchaserare protected by the statutes in question. SeeYoung v. Caravan Corp., 99 Wash. 2d 655, 663P.2d 834, 672 P.2d 1267 (1983) (a minorpurchaser's estate had an action in negligence forthe minor's alcohol-related death against thetavern owner who sold alcohol to the minor);Purchase, 108 Wash. 2d 220, 737 P.2d 661 (athird person injured by an intoxicated minorpurchaser had a cause of action against the tavernowner who sold alcohol to the minor). However,in our recent decision in Schooley, we found theprotected class was not so limited.In that case, Lori Schooley becameintoxicated from alcohol obtained from anotherminor purchaser and injured herself.Schooley,951 P.2d at 751. The alcohol vendor inSchooley made a similar argument which werejected, finding the protected class extends toinjuries which result when a minor purchasershares the alcohol with other minors. Id. at 753.We noted that this court in Purchase emphasizedthat vendors owed a duty not only to the minorpurchaser but "`to members of the general publicas well.'" Id. at 753 (quoting Purchase, 108Wash. 2d at 228, 737 P.2d 661). In light of thepurpose of the legislation, which is to preventagainst the hazard of ",alcohol in the hands ofminors,'" we found it was arbitrary to draw adistinction between third persons injured by theintoxicated minor purchaser and those injured asa result of the minor purchaser sharing thealcohol with other minors. Id. at 753 (quotingHansen v. Friend, 118 Wash. 2d 476, 481-82, 824P.2d 483 (1992)). We found this distinctionespecially illogical when faced with the fact thatminors who drink commonly do so with otherminors. Id. at 753. "[P]rotecting all those injured(c) to protect that interest against the kind of harm whichhas resulted, and(d) to protect that interest against the particular hazardfrom which the harm results.as a result of the illegal sale of alcohol to minorsis the best way to serve the purpose for which thelegislation was created, to prevent minors fromdrinking." Id.In this case, similar to the situation inSchooley, Kevin Rettenmeier purchased alcoholwhich he gave to a number of other minors. Oneof those minors then drove while intoxicatedcausing injuries to Crowe. Thus, we find thatCrowe is part of the protected class.The alcohol vendor, of course, is onlyresponsible for the foreseeable consequences ofhis actions. Id. at 754; see also Burkhart v.Harrod, 110 Wash. 2d 381, 395, 755 P.2d 759(1988). In this way, foreseeability serves to limitthe scope of the duty owed by the alcohol vendorto Crowe. See Schooley, 951 P.2d at 754.Whether or not it was foreseeable that the minorpurchaser would share the alcohol with othersresulting in the injury to Crowe is a question offact for the jury. See id. at 754. The trier of factmay consider the amount and character of thealcohol purchased, the time of day, the presenceof other minors on the premises or in a vehicle,and statements made by the purchaser todetermine whether it was foreseeable the alcoholwould be shared with others. Id.Oscar's asks this court to find, as a matter oflaw, that the circumstances of the sale of beer toRettenmeier could not put the seller on notice thatthe beer would be shared with others and thatthey would then drive while intoxicated. We willdecide issues of foreseeability as a matter of lawonly where reasonable minds cannot differ.Schooley, 951 P.2d at 754. Based on the facts ofthis case, however, we decline to find thatCrowe's injuries were not foreseeable.First, in Schooley we determined thatreasonable minds could conclude that a minorpurchasing substantial quantities of alcoholwould share it with other minors. Id. at 754.Second, and more important, there is a genuineissue of material fact in this case concerning howmuch beer was actually purchased. Thus, it is forthe trier of fact to determine how much beer wasactually purchased and if the amount purchasedwould indicate that it would be shared withothers.Additionally, we find that reasonable mindscould conclude that minors who obtain alcoholfrom another minor purchaser would then drivewhile intoxicated. The question is whether"`[t]he harm sustained [is] reasonably perceivedas being within the general field of dangerCROWE V. GASTON

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 107covered by the specific duty owed by thedefendant.'" (Quoting Hansen, 118 Wash. 2d at484, 824 P.2d 483). Id. at 754. We havepreviously recognized that the general harmencompassed by this duty is that ofalcohol-induced driver error. Christen v. Lee, 113Wash. 2d 479, 495, 780 P.2d 1307 (1989). Infact, a minor is guilty of driving under theinfluence in Washington if the minor has a breathtest reading of .02 grams of alcohol per 210 litersof breath. RCW 46.61.503, .506. This standardis one-fifth that of adults. See RCW 46.61.502.It follows that the Legislature was particularlyconcerned about the danger of minors drivingwhile intoxicated. Thus, we leave the question ofwhether Crowe's injuries were foreseeable to thejury.B. Legal CausationNext, Oscar's argues that it was not the legalcause of Crowe's injuries. Legalcausation is oneof the elements of proximate causation and isgrounded in policy determinations as to how farthe consequences of a defendant's acts shouldextend. Schooley, 951 P.2d at 754. Adetermination of legal liability will depend upon"`mixed considerations of logic, common sense,justice, policy, and precedent.'" Id. at 754(quoting King v. City of Seattle, 84 Wash. 2d 239,250, 525 P.2d 228 (1974)). Where the facts arenot in dispute, legal causation is for the court todecide as a matter of law.As the petitioner did in Schooley, Oscar'sargues that Crowe's injuries are too remote fromthe initial sale and that legal consequences of thesale cannot extend that far. See Schooley, 951P.2d at 755. Oscar's bases this argument solelyon the policy concern of unlimited liability. InSchooley, however, we found this argumentunpersuasive noting that other legal principlessuch as foreseeability, superseding causation, andcontributory negligence serve to dispel thesefears. Id. at 755-56. We found that the policiesbehind legislation prohibiting the sale of alcoholto minors outweighed Petitioner's concerns. Id.at 755-57.This is especially so where the duty involvedis not onerous. The alcohol vendor is simplyrequired to check the buyer's identification.Additionally, if, after the purchaser presentsidentification, the vendor still has doubts aboutthe purchaser's age the vendor can fill out andhave the purchaser sign a certification cardcomplying with RCW 66.20.190. If the vendorcompletes this step the vendor is immune fromany criminal or civil liability regarding the sale ofalcohol to the minor. RCW 66.20.210; see alsoSchooley, 951 P.2d at 755-56.In this case we find the injuries to Crowe arenot so remote as to preclude liability. The policyconsideration behind the legislation prohibitingvendors from selling alcohol to minors are bestserved by holding vendors liable for theforeseeable consequences of the illegal sale ofalcohol to minors. Thus, we conclude that legalcause is satisfied in this case.C. Superseding CausationFinally, Oscar's argues that the interveningintentional misconduct of Rettenmeier, the minorpurchaser, and Fitzpatrick, the driver, serve tobreak the chain of causation in this case. Afinding of proximate causation is premised uponthe proof of cause in fact, as well as the legaldetermination that liability should attach.Maltman v. Sauer, 84 Wash. 2d 975, 981, 530 P.2d254 (1975). Cause in fact requires proof that"`there was a sufficiently close, actual, causalconnection between defendant's conduct and theactual damage suffered by plaintiff.'" Id. (quotingRikstad v. Holmberg, 76 Wash. 2d 265, 268, 456P.2d 355 (1969)). A defendant's negligence is thecause of the plaintiff's injury only if suchnegligence, unbroken by any new independentcause, produces the injury complained of. Id. at982, 530 P.2d 254. Where an intervening actdoes break the chain of causation, it is referred toas a "superseding cause." Id."`Whether an act may be considered asuperseding cause sufficient to relieve a defendantof liability depends on whether the intervening actcan reasonably be foreseen by the defendant; onlyintervening acts which are not reasonablyforeseeable are deemed superseding causes.'"Cramer v. Department of Highways, 73 Wash.App. 516, 520, 870 P.2d 999 (1994) (quotingAnderson v. Dreis & Krump Mfg. Corp., 48 Wash.App. 432, 442, 739 P.2d 1177 (1987)). Anintervening act is not foreseeable if it is "`sohighly extraordinary or improbable as to bewholly beyond the range of expectability.'"Christen, 113 Wash. 2d at 492, 780 P.2d 1307(quoting McLeod v. Grant County Sch. Dist. 128,42 Wash. 2d 316, 323, 255 P.2d 360 (1953)). Theforeseeability of an intervening act, unlike thedetermination of legal cause in general, isCROWE V. GASTON

108 2. PROXIMATE CAUSEordinarily a question of fact for the jury. Cramer,73 Wash. App. at 521, 870 P.2d 999. Thus, in thiscase it is for the jury to decide whether the acts ofRettenmeier and Fitzpatrick break the chain ofcausation, thus, relieving Oscar's from liability.Social Host LiabilityCrowe also asserts that Rettenmeier is liablefor his injuries because Rettenmeier breached aduty owed to Crowe when he supplied beer toFitzpatrick. Crowe's claims concern the duties ofa social host rather than a commercial vendor ofalcohol. The issue presented in this case iswhether a social host, Rettenmeier, who furnishesalcohol to a minor, Fitzpatrick, owes a duty ofcare to a third person, Crowe, injured by theintoxicated minor.Plaintiff contends that RCW 66.44.270(1)creates a duty of care owed by Rettenmeier toCrowe. RCW 66.44.270(1) makes it unlawful forany person to "give, or otherwise supply liquor toany person under the age of twenty-one years...."This court has recognized that a minor who isinjured as a result of alcohol intoxication has acause of action against the social host whosupplied the alcohol based on a violation of RCW66.44.270(1). See Hansen, 118 Wash. 2d 476, 824P.2d 483. However, in Reynolds, we recentlyheld that social host liability based on RCW66.44.270(1) does not extend to injuries to thirdpersons. See Reynolds, 951 P.2d at 766.In Reynolds, we emphasized our reluctance tohold social hosts liable to the same extent ofcommercial vendors. "`Social hosts are not ascapable of handling the responsibilities ofmonitoring their guests' alcohol consumption asare their commercial and quasi-commercialcounterparts.... [T]he commercial proprietor has aproprietary interest and profit motive, and shouldbe expected to exercise greater supervision than inthe (non-commercial) social setting.'" Id. at 764(alteration in original) (quoting Burkhart v.Harrod, 110 Wash. 2d 381, 386-87, 755 P.2d 759(1988)).Additionally, we found that RCW 66.44.270was enacted to protect minors from injuriesresulting from their own abuse of alcohol, not toprotect third parties injured by intoxicated minors.Reynolds, 951 P.2d at 765. We explained thatRCW 66.44.270(1) does not make it unlawful forthe minor's parent or guardian to give alcohol tothe minor if consumed in the presence of theparent or guardian, indicating that the statute wasnot designed for the protection of third persons.Reynolds, 951 P.2d at 765; see also Mills v. Estateof Schwartz, 44 Wash. App. 578, 584, 722 P.2d1363 (1986) (finding that the Legislature, byallowing minors to drink alcohol if furnished bythe minor's parent, did not intend to protect thirdpersons); Hostetler v. Ward, 41 Wash. App. 343,354, 704 P.2d 1193 (1985) (based on theexception to the statute, the court found that RCW66.44.270 was designed to protect minors, notthird persons, from injury). We noted in Reynoldsthat expanding the protected class to includeinjured third persons would "lead to an illogicalresult whereby a person who did not violate RCW66.44.270 would then be liable in negligencepursuant to the same statute." Reynolds, 951 P.2dat 765. We concluded that RCW 66.44.270(1)was not enacted to protect third persons injured byan intoxicated minor. Id. at 765.We also noted that the Legislature providedalcohol vendors with a means by which they canimmunize themselves from civil liability foralcohol-related injuries resulting from the sale ofalcohol to a minor, but did not provide the sameprotection for social hosts. Id. at 765; RCW66.20.210. 4 This distinction, we stated, evinced asintent by the Legislature that commercial vendorswould be held liable to a greater extent than socialhosts.Thus, in the present case, Rettenmeier owedno duty of care to Crowe.ConclusionWe reverse the trial court's order grantingOscar's motion for summary judgment and affirmthe trial court's order granting Rettenmeier'smotion for summary judgment.GUY and ALEXANDER, JJ., concur.DURHAM, Chief Justice (concurring).I agree with the majority that a commercial4 If, after a purchaser presents identification, the vendorstill has doubts about the purchaser's age the vendor canfill out and have the purchaser sign a certification cardcomplying with RCW 66.20.190. If the vendor completesthis step the vendor is immune from any criminal or civilliability regarding the sale of alcohol to the minor. RCW66.20.210.CROWE V. GASTON

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 109vendor's duty to refrain from selling alcohol tominors extends to all minors and third parties whoare foreseeably injured as a result. I also agreethat, as a gratuitous furnisher of alcohol,Rettenmeier should not be liable for injuries tothird parties caused by the minor to whom hefurnished alcohol. However, I would do so for thereasons expressed in my concurrence in Reynoldsv. Hicks, 134 Wash. 2d 491, 951 P.2d 761 (1998).DOLLIVER, J., concurs.JOHNSON, Justice (concurring in part,dissenting in part).For the reasons articulated in my dissent inReynolds v. Hicks, 134 Wash. 2d 491, 951 P.2d761 (1998) (Johnson, J., dissenting), I mustreaffirm my position and concur in part anddissent in part. The facts of the present caseinvolve a commercial alcohol vendor who sellsalcohol to a minor, who transfers alcohol toanother minor, who becomes intoxicated, andinjures another person. In this single case we areconfronted with commercial alcohol vendorliability, the issue in Schooley v. Pinch's DeliMarket, 134 Wash. 2d 468, 951 P.2d 749 (1998),and social host liability, the issue in Reynolds.The majority's position that commercialalcohol vendors are liable when they illegally sellalcohol to minors is consistent with our decisionin Schooley, however, the majority continues tojustify the illegal conduct of providing alcohol tominors when the person providing the alcohol is asocial host. I have clearly stated my position onthis issue in my dissent in Reynolds and inHansen v. Friend, 118 Wash. 2d 476, 824 P.2d483 (1992). Under RCW 66.44.270(1), socialhosts have a duty of care and may be found liablein negligence when an injury is caused by breachof this duty.SMITH and TALMADGE, JJ., concur.SANDERS, Justice (concurring in part,dissenting in part).I would affirm the trial court's dismissal ofclaims against Oscar's for the reasons set forth inmy dissenting opinion in Schooley v. Pinch's DeliMarket, Inc., 134 Wash. 2d 468, 951 P.2d 749(1998). I concur with the majority that the claimagainst Rettenmeier must be dismissed based onReynolds v. Hicks, 134 Wash. 2d 491, 951 P.2d761 (1998).Questions and Notes1. If you had been a member of theWashington Supreme Court at the time this casewas decided, which opinion would you havesigned?2. Some jurisdictions have responded to theexpansion of tavern-owners' liability withlegislative restrictions. In California, for example,"the furnishing of alcoholic beverages is not theproximate cause of injuries resulting fromintoxication, but rather the consumption ofalcoholic beverages is the proximate cause ofinjuries inflicted upon another by an intoxicatedperson." CAL. CIV. CODE ANN. § 1714 (West1985). Would you have voted for this provision?LINEY v. CHESTNUT MOTORS421 Pa. 26, 218 A.2d 336 (1966)EAGEN, JusticeIn this action in trespass, the lower courtsustained preliminary objections to the complaintin the nature of a demurrer and dismissed theaction. This appeal challenges the correctness ofthat order.The pertinent pleaded facts are as follows:The defendant operates an automobile salesagency and garage. About ten o'clock a.m. on theday involved, a customer's automobile wasdelivered to the garage for repairs. Thedefendant's employees allowed the automobile toremain outside the building, double-parked in thestreet and with the key in the ignition. Aboutthree hours later, it was stolen by an adultstranger who then drove it around the block insuch a careless manner that it mounted asidewalk, struck the plaintiff, a pedestrianthereon, causing her serious injury. Defendant'sgarage was located in a Philadelphia areaexperiencing a high and increasing number ofautomobile thefts in the immediate precedingCROWE V. GASTON

110 2. PROXIMATE CAUSEmonths.The lower court's order was correct and weaffirm. The complaint failed to state a cause ofaction against the defendant.Assuming that defendant's employees werenegligent in permitting the automobile to remainoutside in the street under the circumstancesdescribed, it is clear that the defendant could nothave anticipated and foreseen that thiscarelessness of its employees would result in theharm the plaintiff suffered. See, Rapczynski v.W.T. Cowan, Inc., 138 Pa. Super, 392, 10 A.2d810 (1940), and Roscovich v. Parkway BakingCo., 107 Pa. Super. 493, 163 A. 915 (1933). Inother words, the defendant violated no duty owedto the plaintiff. This being so, the plaintiff wasnot harmed by the defendant's negligence. See,Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 307(1951), and Zilka v. Sanctis Construction, Inc.,409 Pa. 396, 186 A.2d 897 (1962). Assuming alsothat the defendant should have foreseen thelikelihood of the theft of the automobile, nothingexisted in the present case to put it on notice thatthe thief would be an incompetent or carelessdriver. Under the circumstances, the thief'scareless operation of the automobile was asuperseding cause of the injury suffered, anddefendant's negligence, if such existed, only aremote cause thereof upon which no action wouldlie. See, RESTATEMENT, TORTS, (SECOND) §§ 448,449, and § 302 B, Illustration 2 (1965); PROSSER,LAW OF TORTS (2d ed. 1941), at 140-41-42;DeLuca v. Manchester Ldry. & Dry Cl. Co., 380Pa. 484, 112 A.2d 372 (1955); Kite v. Jones, 389Pa. 339, 132 A.2d 683 (1957); and, Green v.Independent Oil Co., 414 Pa. 477, 201 A.2d 207(1964).It is true that the question of proximate causeis generally for the jury. However, if the relevantfacts are not in dispute and the remoteness of thecausal connection between the defendant'snegligence and the plaintiff's injury clearlyappears, the question becomes one of law:Klimczak v. 7-Up Bottling Co. of Phila., 385 Pa.287, 122 A.2d 707 (1956), and Green v.Independent Oil Co., supra.Finally, it is strenuously argued thatAnderson v. Bushong Pontiac Co., 404 Pa. 382,171 A.2d 771 (1961), is controlling. We do notagree. In Anderson, several salient facts werepresent which are absent here. Those facts clearlyput the defendant in that case on notice, not onlythat the automobile was likely to be stolen, butalso that it was likely to be stolen and operated byan incompetent driver. In Anderson, we citedMurray v. Wright, 166 Cal. App. 2d 589, 333 P.2d111 (1958), as persuasive authority for sustainingliability under the facts therein presented. Wenote that the same court has denied liability in asituation similar to the one now before us. See,Richards v. Stanley, 43 Cal. 2d 60, 271 P.2d 23(1954). Other jurisdictions have reached the sameresult. See, Midkiff v. Watkins, 52 So. 2d 573 (La.App. 1951); Wilson v. Harrington, 295 N.Y. 667,65 N.E.2d 101 (1946); and, Teague v. Pritchard,38 Tenn. App. 686, 279 S.W.2d 706 (1954).Order affirmed.MUSMANNO and ROBERTS, JJ., dissent.Questions and Notes1. One law review article found evidence thatthe accident rate for stolen vehicles is about 200times that of the normal accident rate. See AnExercise Based Upon Empirical Data: Liabilityfor Harm Caused by Stolen Automobiles, 1969WIS. L. REV. 909. Should the court have beenexpected to know (or intuit) such a fact? Is itrelevant to the disposition of the case?ROSS v. HARTMAN139 F.2d 14 (D.C. Cir. 1943)EDGERTON, Associate JusticeThis is an appeal by the plaintiff from ajudgment for the defendant in a personal injuryaction.The facts were stipulated. Appellee's agentviolated a traffic ordinance of the District ofColumbia by leaving appellee's truck unattendedin a public alley, with the ignition unlocked andthe key in the switch. He left the truck outside agarage "so that it might be taken inside the garageby the garage attendant for night storage," but hedoes not appear to have notified anyone that hehad left it. Within two hours and unknown persondrove the truck away and negligently ran over theappellant.The trial court duly directed a verdict for theCROWE V. GASTON

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 111appellee on the authority of Squires v. Brooks.That case was decided in 1916. On factsessentially similar to these, and despite thepresence of a similar ordinance, this court heldthat the defendant's act in leaving the carunlocked was not a "proximate " or legal cause ofthe plaintiff's injury because the wrongful act of athird person intervened. We cannot reconcile thatdecision with facts which have become clearerand principles which have become betterestablished than they were in 1916, and we thinkit should be overruled.Everyone knows now that children andthieves frequently cause harm by tampering withunlocked cars. The danger that they will do so ona particular occasion may be slight or great. Inthe absence of an ordinance, therefore, leaving acar unlocked might not be negligent in somecircumstances, although in other circumstances itmight be both negligent and a legal or"proximate" cause of a resulting accident.But the existence of an ordinance changes thesituation. If a driver causes an accident byexceeding the speed limit, for example, we do notinquire whether his prohibited conduct wasunreasonably dangerous. It is enough that it wasprohibited. Violation of an ordinance intended topromote safety is negligence. If by creating thehazard which the ordinance was intended toavoid it brings about the harm which theordinance was intended to prevent, it is a legalcause of the harm. This comes only to saying thatin such circumstances the law has no reason toignore and does not ignore the casual relationwhich obviously exists in fact. The law hasexcellent reason to recognize it, since it is thevery relation which the makers of the ordinanceanticipated. This court has applied theseprinciples to speed limits and other regulations ofthe manner of driving.The same principles govern this case. Theparticular ordinance involved here is one of aseries which require, among other things, thatmotor vehicles be equipped with horns andlamps. Ordinary bicycles are required to havebells and lamps, but they are not required to belocked. The evident purpose of requiring motorvehicles to be locked is not to prevent theft forthe sake of owners or the policy, but to promotethe safety of the public in the streets. Anunlocked motor vehicle creates little more risk oftheft than an unlocked bicycle, or for that matteran unlocked house, but it creates much more riskthat meddling by children, thieves, or others willresult in injuries to the public. The ordinance isintended to prevent such consequences. Since it isa safety measure, its violation was negligence.This negligence created the hazard and therebybrought about the harm which the ordinance wasintended to prevent. It was therefore a legal or"proximate" cause of the harm. 1 Both negligenceand causation are too clear in this case, we think,for submission to a juryThe fact that the intermeddler's conduct wasitself a proximate cause of the harm, and wasprobably criminal, is immaterial. Janof v.Newsom involved a statute which forbadeemployment agencies to recommend servantswithout investigating their references. An agencyrecommended a servant to the plaintiff withoutinvestigation, the plaintiff employed the servant,and the servant robbed the plaintiff. This courtheld the agency responsible for the plaintiff'sloss. In that case as in this, the conduct of thedefendant or his agent was negligent preciselybecause it created a risk that a third person wouldact improperly. In such circumstances the factthat a third person does act improperly is not anintelligible reason for excusing the defendant.There are practical as well as theoreticalreasons for not excusing him. The rule we areadopting tends to make the streets safer bydiscouraging the hazardous conduct which the1This does not mean that one who violates a safetyordinance is responsible for all harm that accompanies orfollows his negligence. He is responsible for theconsequences of his negligence but not for coincidences. Ifin the present case, for example, the intermeddler hadsimply released the brake of appellee's truck, withoutmaking use of the ignition key or the unlocked switch, andthe truck had thereupon rolled downhill and injuredappellant, appellee would not have been responsible forthe injuries because of the negligence of his agent inleaving the switch unlocked, since it would have had nopart in causing them. In other words the fact that theignition was unlocked, which alone gave the agent'sconduct its negligent character, would have had nothing todo with bringing about the harm.Neither do we suggest that the ordinance should beinterpreted as intended to apply in all possiblecircumstances. In some emergencies, no doubt, the act ofleaving a car unlocked and unattended in a public placewould not be a violation of the ordinance, fairlyinterpreted, and would therefore entail no responsibilityfor consequences. A classic illustration of the samegeneral principle is the Bologna ordinance againstblood-letting in the streets, which did not make criminalsof surgeons.PALSGRAF V. LONG ISLAND R. CO.

112 2. PROXIMATE CAUSEordinance forbids. It puts the burden of the risk,as far as may be, upon those who create it.Appellee's agent created a risk which was bothobvious and prohibited. Since appellee wasresponsible for the risk, it is fairer to hold himresponsible for the harm than to deny a remedy tothe innocent victim.Reversed.Questions and Notes1. Are Liney and Ross distinguishable? Or arethey fundamentally the same case?2. The RESTATEMENT (2D), TORTS, § 440defines a "superseding cause" as "an act of a thirdperson or other force which by its interventionprevents the actor from being liable for harm toanother which his antecedent negligence is asubstantial factor in bringing about." By contrast,in § 441 an "intervening force" is defined as "onewhich actively operates in producing harm toanother after the actor's negligent act or omissionhas been committed." It does not prevent theactor's conduct from being found a proximatecause. Do these definitions help distinguish onekind of cause from another?3. If a tavern negligently serves anintoxicated patron in violation of state law, is thetavern responsible for intentional torts committedby the patron? Compare, 753 S.W.2d 507 (Tex.App. 1988, writ denied), with Christen v. Lee,113 Wash. 2d 479, 780 P.2d 1307 (1989). TheTexas case is reviewed in a casenote, 20 TEX.TECH. L. REV. 1323 (1989).4. In Kitchen v. K-Mart Corporation, 697So.2d 1200 (Fla. 1997), the plaintiff was shot byher intoxicated ex-boyfriend, who had purchaseda gun from K-Mart. When the clerk at K-Martdiscovered his writing was too illegible to be readon the required firearms form, the clerk filled itout for him and had him initial it and sign it. Thejury determined that the plaintiff's damages were$12 million. Should K-Mart be required to paythe damages caused by the shooting? Or was theex-boyfriend a superseding cause of the injury?3. Remote and Indirect Results ofNegligent ConductPALSGRAF v. LONG ISLAND R. CO248 N.Y. 339, 162 N.E. 99 (1928)CARDOZO, C.J.Plaintiff was standing on a platform ofdefendant's railroad after buying a ticket to go toRockaway Beach. A train stopped at the station,bound for another place. Two men ran forward tocatch it. One of the men reached the platform ofthe car without mishap, though the train wasalready moving. The other man, carrying apackage, jumped aboard the car, but seemedunsteady as if about to fall. A guard on the car,who had held the door open, reached forward tohelp him in, and another guard on the platformpushed him from behind. In this act, the packagewas dislodged, and fell upon the rails. It was apackage of small size, about fifteen inches long,and was covered by a newspaper. In fact itcontained fireworks, but there was nothing in itsappearance to give notice of its contents. Thefireworks when they fell exploded. The shock ofthe explosion threw down some scales at theother end of the platform many feet away. Thescales struck the plaintiff, causing injuries forwhich she sues.The conduct of the defendant's guard, if awrong 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 notnegligence at all. Nothing in the situation gavenotice that the falling package had in it thepotency of peril to persons thus removed.Negligence is not actionable unless it involves theinvasion of a legally protected interest, theviolation of a right. "Proof of negligence in theair, so to speak, will not do." POLLOCK, TORTS(11th Ed.) p. 455; Martin v. Herzog, 228 N.Y. 164,170, 126 N.E. 814. Cf. SALMOND, TORTS (6th Ed.)p. 24. "Negligence is the absence of care,according to the circumstances." Willes, J., inVaughan v. Taff Vale Ry. Co., 5 H.& N. 679, 688; 1BEVEN, NEGLIGENCE (4th Ed.) 7; Paul v. Consol.Fireworks Co., 212 N.Y. 117, 105 N.E. 795;Adams v. Bullock, 227 N.Y. 208, 211, 125 N.E.93; Parrott v. Wells-Fargo Co., 15 Wall. (U.S.)524, 21 L. Ed. 206. The plaintiff, as she stoodROSS V. HARTMAN

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 113upon the platform of the station, might claim to beprotected against intentional invasion of herbodily security. Such invasion is not charged. Shemight claim to be protected against unintentionalinvasion by conduct involving in the thought ofreasonable men an unreasonable hazard that suchinvasion would ensue. These, from the point ofview of the law, were the bounds of her immunity,with perhaps some rare exceptions, survivals forthe most part of ancient forms of liability, whereconduct is held to be at the peril of the actor.Sullivan v. Dunham, 161 N.Y. 290, 55 N.E. 923,47 L.R.A. 715, 76 Am. St. Rep. 274. If no hazardwas apparent to the eye of ordinary vigilance, anact innocent and harmless, at least to outwardseeming, with reference to her, did not take toitself the quality of a tort because it happened tobe a wrong, though apparently not one involvingthe risk of bodily insecurity, with reference tosome one else. "In every instance, beforenegligence can be predicated of a given act, backof the act must be sought and found a duty to theindividual complaining, the observance of whichwould have averted or avoided the injury."* * *A different conclusion will involve us, andswiftly too, in a maze of contradictions. A guardstumbles over a package which has been left upona platform. It seems to be a bundle of newspapers.It turns out to be a can of dynamite. To the eye ofordinary vigilance, the bundle is abandonedwaste, which may be kicked or trod on withimpunity. Is a passenger at the other end of theplatform protected by the law against theunsuspected hazard concealed beneath the waste?If not, is the result to be any different, so far as thedistant passenger is concerned, when the guardstumbles over a valise which a truckman or aporter has left upon the walk? The passenger faraway, if the victim of a wrong at all, has a causeof action, not derivative, but original and primary.His claim to be protected against invasion of hisbodily security is neither greater nor less becausethe act resulting in the invasion is a wrong toanother far removed. In this case, the rights thatare said to have been invaded, are not even of thesame order. The man was not injured in his personnor even put in danger. The purpose of the act, aswell as its effect, was to make his person safe. Itthere was a wrong to him at all, which may verywell be doubted it was a wrong to a propertyinterest only, the safety of his package. Out of thiswrong to property, which threatened injury tonothing else, there has passed, we are told, to theplaintiff by derivation or succession a right ofaction for the invasion of an interest of anotherorder, the right to bodily security. The diversity ofinterests emphasizes the futility of the effort tobuild the plaintiff's right upon the basis of a wrongto some one else. The gain is one of emphasis, fora like result would follow if the interests were thesame. Even then, the orbit of the danger asdisclosed to the eye of reasonable vigilance wouldbe the orbit of the duty. One who jostles one'sneighbor in a crowd does not invade the rights ofothers standing at the outer fringe when theunintended contact casts a bomb upon the ground.The wrongdoer as to them is the man who carriesthe bomb, not the one who explodes it withoutsuspicion of the danger. Life will have to be madeover, and human nature transformed, beforeprevision so extravagant can be accepted as thenorm of conduct, the customary standard to whichbehavior must conform.The argument for the plaintiff is built uponthe shifting meanings of such words as "wrong"and "wrongful," and shares their instability. Whatthe plaintiff must show is "a wrong" to herself;i.e., a violation of her own right, and not merely awrong 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 speedthrough a crowded city street is guilty of anegligent act and therefore of a wrongful one,irrespective of the consequences. Negligent theact is, and wrongful in the sense that it is unsocial,but wrongful and unsocial in relation to othertravelers, only because the eye of vigilanceperceives the risk of damage. If the same act wereto be committed on a speedway or a race course, itwould lose its wrongful quality. The riskreasonably to be perceived defines the duty to beobeyed, and risk imports relation; it is risk toanother or to others within the range ofapprehension. Seavey, Negligence, Subjective orObjective, 41 H. L. RV. 6; Boronkay v. Robinson &Carpenter, 247 N.Y. 365, 160 N.E. 400. This doesnot mean, of course, that one who launches adestructive force is always relieved of liability, ifthe force, though known to be destructive, pursuesan unexpected path. "It was not necessary that thedefendant should have had notice of the particularmethod in which an accident would occur, if thepossibility of an accident was clear to theordinarily prudent eye." Munsey v. Webb, 231 U.S.150, 156, 34 S. Ct. 44, 45 (58 L. Ed. 162);Condran v. Park & Tilford, 213 N.Y. 341, 345,PALSGRAF V. LONG ISLAND R. CO.

114 2. PROXIMATE CAUSE107 N.E. 565; Robert v. United States ShippingBoard Emergency Fleet Corp., 240 N.Y. 474, 477,148 N.E. 650. Some acts, such as shooting are soimminently dangerous to any one who may comewithin reach of the missile however unexpectedly,as to impose a duty of prevision not far from thatof an insurer. Even today, and much oftener inearlier stages of the law, one acts sometimes atone's peril. Jeremiah Smith, Tort and AbsoluteLiability, 30 H. L. RV. 328; STREET, FOUNDATIONSOF LEGAL LIABILITY, vol. 1, pp. 77, 78. Under thishead, it may be, fall certain cases of what isknown as transferred intent, an act willfullydangerous to A resulting by misadventure ininjury to B. Talmage v. Smith, 101 Mich. 370, 374,59 N.W. 656, 45 Am. St. Rep. 414. These casesaside, wrong is defined in terms of the natural orprobable, at least when unintentional. Parrot v.Wells-Fargo Co. (The Nitro-Glycerine Case) 15Wall. 524, 21 L. Ed. 206. The range of reasonableapprehension is at times a question for the court,and at times, if varying inferences are possible, aquestion for the jury. Here, by concession, therewas nothing in the situation to suggest to the mostcautious mind that the parcel wrapped innewspaper would spread wreckage through thestation. If the guard had thrown it downknowingly and willfully, he would not havethreatened the plaintiff's safety, so far asappearances could warn him. His conduct wouldnot have involved, even then, an unreasonableprobability of invasion of her bodily security.Liability can be no greater where the act isinadvertent.Negligence, like risk, is thus a term ofrelation. Negligence in the abstract, apart fromthings related, is surely not a tort, if indeed it isunderstandable at all. Bowen, L.J., in Thomas v.Quartermaine, 18 Q.B.D. 685, 694. Negligence isnot a tort unless it results in the commission of awrong, and the commission of a wrong importsthe violation of a right, in this case, we are told,the right to be protected against interference withone's bodily security. But bodily security isprotected, not against all forms of interference oraggression, but only against some. One who seeksredress at law does not make out a cause of actionby showing without more that there has beendamage to his person. If the harm was not willful,he must show that the act as to him hadpossibilities of danger so many and apparent as toentitle him to be protected against the doing of itthough the harm was unintended. Affront topersonality is still the keynote of the wrong.Confirmation of this view will be found in thehistory and development of the action on the case.Negligence as a basis of civil liability wasunknown to medieval law. 8 HOLDSWORTH,HISTORY OF ENGLISH LAW, p. 449; STREET,FOUNDATIONS OF LEGAL LIABILITY, vol. 1, pp.189, 190. For damage to the person, the soleremedy was trespass, and trespass did not lie inthe absence of aggression, and that direct andpersonal. 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 servantwithout orders from the master does or omitssomething to the damage of another, is a plant oflater 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 thelegal soil, it was thought of as a variant oftrespass, an offshoot of the parent stock. Thisappears in the form of action, which was knownas 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 rightof subrogation, to vindicate an interest invaded inthe person of another. Thus to view his cause ofaction is to ignore the fundamental differencebetween tort and crime. HOLLAND,JURISPRUDENCE (12th Ed.) p. 328. He sues forbreach of a duty owing to himself.The law of causation, remote or proximate, isthus foreign to the case before us. The question ofliability is always anterior to the question of themeasure of the consequences that go with liability.If there is no tort to be redressed, there is nooccasion to consider what damage might berecovered if there were a finding of a tort. We mayassume, without deciding, that negligence, not atlarge or in the abstract, but in relation to theplaintiff, would entail liability for any and allconsequences, however novel or extraordinary.Bird v. St. Paul Fire & Marine Ins. Co., 224 N.Y.47, 54, 120 N.E. 86, 13 A.L.R. 875; Ehrgott v.Mayor, etc., of City of New York, 96 N.Y. 264, 48Am. Rep. 622; Smith v. London & S. W. R. Co.,(1870-1871) 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 isroom for argument that a distinction is to bedrawn according to the diversity of interestsinvaded by the act, as where conduct negligent inPALSGRAF V. LONG ISLAND R. CO.

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 115that it threatens an insignificant invasion of aninterest in property results in an unforeseeableinvasion of an interest of another order, as, e.g.,one of bodily security. Perhaps other distinctionsmay be necessary. We do not go into the questionnow. The consequences to be followed must firstbe rooted in a wrong.The judgment of the Appellate Division andthat of the Trial Term should be reversed, and thecomplaint dismissed, with costs in all courts.ANDREWS, J. (dissenting)Assisting a passenger to board a train, thedefendant's servant negligently knocked a packagefrom his arms. It fell between the platform and thecars. Of its contents the servant knew and couldknow nothing. A violent explosion followed. Theconcussion broke some scales standing aconsiderable distance away. In falling, theyinjured the plaintiff, an intending passenger.Upon these facts, may she recover thedamages she has suffered in an action broughtagainst the master? The result we shall reachdepends upon our theory as to the nature ofnegligence. Is it a relative concept - the breach ofsome duty owing to a particular person or toparticular persons? Or, where there is an act whichunreasonably threatens the safety of others, is thedoer liable for all its proximate consequences,even where they result in injury to one who wouldgenerally be thought to be outside the radius ofdanger? This is not a mere dispute as to words.We might not believe that to the average mind thedropping of the bundle would seem to involve theprobability of harm to the plaintiff standing manyfeet away whatever might be the case as to theowner or to one so near as to be likely to be struckby its fall. If, however, we adopt the secondhypothesis, we have to inquire only as to therelation between cause and effect. We deal interms of proximate cause, not of negligence.Negligence may be defined roughly as an actor omission which unreasonably does or mayaffect the rights of others, or which unreasonablyfails to protect one's self from the dangersresulting from such acts. Here I confine myself tothe first branch of the definition. Nor do Icomment on the word "unreasonable." For presentpurposes it sufficiently describes that average ofconduct 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 ofthe actor, that is important. Hover v. Barkhoof, 44N.Y. 113; Mertz v. Connecticut Co., 217 N.Y. 475,112 N.E. 166. In criminal law both the intent andthe result are to be considered. Intent again ismaterial in tort actions, where punitive damagesare sought, dependent on actual malice - not onemerely reckless conduct. But here neither insanitynor infancy lessens responsibility. Williams v.Hays, 143 N.Y. 442, 38 N.E. 449, 26 L.R.A. 153,42 Am. St. Rep. 743.As has been said, except in cases ofcontributory negligence, there must be rightswhich are or may be affected. Often though injuryhas occurred, no rights of him who suffers havebeen touched. A licensee or trespasser upon myland has no claim to affirmative care on my partthat the land be made safe. Meiers v. Fred KochBrewery, 229 N.Y. 10, 127 N.E. 491, 13 A.L.R.633. Where a railroad is required to fence itstracks against cattle, no man's rights are injuredshould he wander upon the road because suchfence is absent. Di Caprio v. New York Cent. R.Co., 231 N.Y. 94, 131 N.E. 746, 16 A.L.R. 940.An unborn child may not demand immunity frompersonal harm. Drobner v. Peters, 232 N.Y. 220,133 N.E. 567, 20 A.L.R. 1503.But we are told that "there is no negligenceunless there is in the particular case a legal duty totake care, and this duty must be not which is owedto the plaintiff himself and not merely to others."SALMOND TORTS (6th Ed.) 24. This I think toonarrow a conception. Where there is theunreasonable act, and some right that may beaffected there is negligence whether damage doesor does not result. That is immaterial. Should wedrive down Broadway at a reckless speed, we arenegligent whether we strike an approaching car ormiss it by an inch. The act itself is wrongful. If isa wrong not only to those who happen to bewithin the radius of danger, but to all who mighthave been there - a wrong to the public at large.Such is the language of the street. Such thelanguage of the courts when speaking ofcontributory negligence. Such again and againtheir language in speaking of the duty of somedefendant and discussing proximate cause in caseswhere such a discussion is wholly irrelevant onany other theory. Perry v. Rochester Line Co., 219N.Y. 60, 113 N.E. 529, L.R.A. 1917B, 1058. Aswas said by Mr. Justice Holmes many years ago:The measure of the defendant's dutyin determining whether a wrong has beencommitted is one thing, the measure ofliability when a wrong has beenPALSGRAF V. LONG ISLAND R. CO.

116 2. PROXIMATE CAUSEcommitted is another. Spade v. Lynn &B.R. Co., 172 Mass. 488, 491, 52 N.E.747, 748 (43 L.R.A. 832, 70 Am. St. Rep.298).Due care is a duty imposed on each one of usto protect society from unnecessary danger, not toprotect A, B, or C alone.It may well be that there is no such thing asnegligence in the abstract. "Proof of negligence inthe air, so to speak, will not do." In an emptyworld negligence would not exist. It does involvea relationship between man and his fellows, butnot merely a relationship between man and thosewhom he might reasonably expect his act wouldinjure; rather, a relationship between him andthose whom he does in fact injure. If his act has atendency to harm some one, it harms him a mileaway as surely as it does those on the scene. Wenow permit children to recover for the negligentkilling of the father. It was never prevented on thetheory that no duty was owing to them. A husbandmay be compensated for the loss of his wife'sservices. To say that the wrongdoer was negligentas to the husband as well as to the wife is merelyan attempt to fit facts to theory. An insurancecompany paying a fire loss recovers its paymentof the negligent incendiary. We speak ofsubrogation - 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 alsoinjured the company. Even if it be true that thefault of father, wife, or insured will preventrecovery, it is because we consider the originalnegligence, not the proximate cause of the injury.POLLOCK, TORTS (12th Ed.) 463.In the well-known Polemis Case, (1921) 3K.B. 560, SCRUTTON, L.J., said that thedropping of a plank was negligent, for it mightinjure "workman or cargo or ship." Because ofeither possibility, the owner of the vessel was tobe made good for his loss. The act beingwrongful, the doer was liable for its proximateresults. Criticized and explained as this statementmay have been, I think it states the law as itshould be and as it is. Smith v. London & S.W.R.Co. R.R. (1870-71) L.R. 6 C.P. 14; Anthony v.Staid, 52 Mass. (11 Metc.) 290; Wood v.Pennsylvania R. Co., 177 Pa. 306, 35 A. 699, 35L.R.A. 199, 55 Am. St. Rep. 728; Trashansky v.Hershkovitz, 239 N.Y. 452, 147 N.E. 63.The proposition is this: Every one owes to theworld at large the duty of refraining from thoseacts that may unreasonably threaten the safety ofothers. Such an act occurs. Not only is hewronged to whom harm, might reasonably beexpected to result, but he also who is in factinjured, even if he be outside what wouldgenerally be thought the danger zone. There needsbe duty due the one complaining, but this is not aduty to a particular individual because as to himharm might be expected. Harm to some one beingthe natural result of the act, not only that onealone, but all those in fact injured may complain.We have never, I think, held otherwise. Indeed inthe Di Caprio Case we said that a breach of ageneral ordinance defining the degree of care tobe exercised in one's calling is evidence ofnegligence as to every one. We did not limit thisstatement to those who might be expected to beexposed to danger. Unreasonable risk being taken,its consequences are not confined to those whomight probably be hurt.If this be so, we do not have a plaintiff suingby "derivation or succession." Her action isoriginal and primary. Her claim is for a breach ofduty to herself - not that she is subrogated to anyright of action of the owner of the parcel or of apassenger standing at the scene of the explosion.The right to recover damages rests onadditional considerations. The plaintiff's rightsmust be injured, and this injury must be caused bythe negligence. We build a dam, but are negligentas to its foundations. Breaking, it injures propertydown stream. We are not liable if all thishappened because of some reason other than theinsecure foundation. But, when injuries do resultfrom out unlawful act, we are liable for theconsequences. It does not matter that they areunusual, unexpected, unforeseen, andunforeseeable. But there is one limitation. Thedamages must be so connected with thenegligence that the latter may be said to be theproximate cause of the former.These two words have never been given aninclusive definition. What is a cause in a legalsense, still more what is a proximate cause,depend in each case upon many considerations, asdoes the existence of negligence itself. Anyphilosophical doctrine of causation does not helpus. A boy throws a stone into a pond. The ripplesspread. The water level rises. The history of thatpond is altered to all eternity. It will be altered byother causes also. Yet it will be forever theresultant of all causes combined. Each one willhave an influence. How great only omnisciencecan say. You may speak of a chain, or, if youplease, a net. An analogy is of little aid. EachPALSGRAF V. LONG ISLAND R. CO.

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 117cause brings about future events. Without each thefuture would not be the same. Each is proximatein the sense it is essential. But that is not what wemean by the word. Nor on the other hand do wemean sole cause. There is no such thing.Should analogy be though helpful, however, Iprefer that of a stream. The spring, starting on itsjourney, is joined by tributary after tributary. Theriver, reaching the ocean, comes from a hundredsources. No man may say whence any drop ofwater is derived. Yet for a time distinction may bepossible. Into the clear creek, brown swamp waterflows from the left. Later, from the right comeswater stained by its clay bed. The three mayremain for a space, sharply divided. But at lastinevitably no trace of separation remains. Theyare so commingled that all distinction is lost.As we have said, we cannot trace the effect ofan act to the end, if end there is. Again, however,we may trace it part of the way. A murder atSerajevo may be the necessary antecedent to anassassination in London twenty years hence. Anoverturned lantern may burn all Chicago. We mayfollow the fire from the shed to the last building.We rightly say the fire started by the lanterncaused its destruction.A cause, but not the proximate cause. Whatwe do mean by the word "proximate" is that,because of convenience, of public policy, of arough sense of justice, the law arbitrarily declinesto trace a series of events beyond a certain point.This is not logic. It is practical politics. Take ourrule as to fires. Sparks from my burning haystackset on fire my house and my neighbor's. I mayrecover from a negligent railroad. He may not. Yetthe wrongful act as directly harmed the one as theother. We may regret that the line was drawn justwhere it was, but drawn somewhere it had to be.We said the act of the railroad was not theproximate cause of our neighbor's fire. Cause itsurely was. The words we used were simplyindicative of our notions of public policy. Othercourts think differently. But somewhere theyreach the point where they cannot say the streamcomes from any one source.Take the illustration given in an unpublishedmanuscript by a distinguished and helpful writeron the law of torts. A chauffeur negligentlycollides with another car which is filled withdynamite, although he could not know it. Anexplosion follows. A, walking on the sidewalknearby, is killed. B, sitting in a window of abuilding opposite, is cut by flying glass. C,likewise sitting in a window a block away, issimilarly injured. And a further illustration: Anursemaid, ten blocks away, startled by the noise,involuntarily drops a baby from her arms to thewalk. We are told that C may not recover while Amay. As to B it is a question for court or jury. Wewill all agree that the baby might not. Because, weare again told, the chauffeur had no reason tobelieve his conduct involved any risk of injuringeither C or the baby. As to them he was notnegligent.But the chauffeur, being negligent in riskingthe collision, his belief that the scope of the harmhe might do would be limited is immaterial. Hisact unreasonably jeopardized the safety of any onewho might be affected by it. C's injury and that ofthe 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 fromsuch dangers. The baby was entitled to use thesidewalk with reasonable safety.The true theory is, it seems to me, that theinjury to C, if in truth he is to be denied recovery,and the injury to the baby, is that their severalinjuries were not the proximate result of thenegligence. And here not what the chauffeur hadreason to believe would be the result of hisconduct, but what the prudent would foresee, mayhave a bearing - may have some bearing, for theproblem of proximate cause is not to be solved byany one consideration. It is all a question ofexpediency. There are no fixed rules to govern ourjudgment. There are simply matters of which wemay take account. We have in a somewhatdifferent connection spoken of "the stream ofevents." We have asked whether that stream wasdeflected - whether it was forced into new andunexpected channels. Donnelly v. H.C.& A.I.Piercy Contracting Co., 222 N.Y. 210, 118 N.E.605. This is rather rhetoric than law. There is intruth little to guide us other than common sense.There are some hints that may help us. Theproximate cause, involved as it may be with manyother causes, must be, at the least, somethingwithout which the event would not happen. Thecourt must ask itself whether there was a naturaland continuous sequence between cause andeffect. Was the one a substantial factor inproducing the other? Was there a directconnection between them, without too manyintervening causes? Is the effect of cause on resultnot too attenuated? Is the cause likely, in the usualjudgment of mankind, to produce the result? Or,by the exercise of prudent foresight, could theresult be foreseen? Is the result too remote fromPALSGRAF V. LONG ISLAND R. CO.

118 2. PROXIMATE CAUSEthe cause, and here we consider remoteness intime and space. Bird v. St. Paul & M. Ins. Co., 224N.Y. 47, 120 N.E. 86, 13 A.L.R. 875, where wepassed upon the construction of a contract - butsomething was also said on this subject. Clearlywe must so consider, for the greater the distanceeither in time or space, the more surely do othercauses intervene to affect the result. When alantern is overturned, the firing of a shed is afairly direct consequence. Many things contributeto the spread of the conflagration - the force of thewind, the direction and width of streets, thecharacter of intervening structures, other factors.We draw an uncertain and wavering line, but drawit we must as best we can.Once again, it is all a question of fairjudgment, always keeping in mind the fact that weendeavor to make a rule in each case that will bepractical and in keeping with the generalunderstanding of mankind.Here another question must be answered. Inthe case supposed, it is said, and said correctly,that the chauffeur is liable for the direct effect ofthe explosion, although he had no reason tosuppose it would follow a collision. "The fact thatthe injury occurred in a different manner than thatwhich might have been expected does not preventthe chauffeur's negligence from being in law thecause of the injury." But the natural results of anegligent act - the results which a prudent manwould or should foresee - do have a bearing uponthe decision as to proximate cause. We have saidso repeatedly. What should be foreseen? Nohuman foresight would suggest that a collisionitself might injure one a block away. On thecontrary, given an explosion, such a possibilitymight be reasonably expected. I think the directconnection, the foresight of which the courtsspeak, assumes prevision of the explosion, for theimmediate results of which, at least, the chauffeuris responsible.If may be said this is unjust. Why? In fairnesshe should make good every injury flowing fromhis negligence. Not because of tenderness towardhim we say he need not answer for all that followshis wrong. We look back to the catastrophe, thefire kindled by the spark, or the explosion. Wetrace the consequences, not indefinitely, but to acertain point. And to aid us in fixing that point weask what might ordinarily be expected to followthe fire or the explosion.This last suggestion is the factor which mustdetermine the case before us. The act upon whichdefendant's liability rests is knocking anapparently harmless package onto the platform.The act was negligent. For its proximateconsequences the defendant is liable. If itscontents were broken, to the owner; if it fell uponand crushed a passenger's foot, then to him; if itexploded and injured one in the immediatevicinity, 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 25 or 30 feet, perhaps less. Except forthe explosion, she would not have been injured.We are told by the appellant in his brief, "It cannotbe denied that the explosion was the direct causeof the plaintiff's injuries." So it was a substantialfactor in producing the result - there was here anatural and continuous sequence - directconnection. The only intervening cause was that,instead of blowing her to the ground, theconcussion smashed the weighing machine whichin turn fell upon her. There was no remoteness intime, little in space. And surely, given such anexplosion as here, it needed no great foresight topredict that the natural result would be to injureone on the platform at no greater distance from itsscene than was the plaintiff. Just how no onemight be able to predict. Whether by flyingfragments, by broken glass, by wreckage ofmachines or structures no one could say. Butinjury in some form was most probable.Under these circumstances I cannot say as amatter of law that the plaintiff's injuries were notthe proximate result of the negligence. That is allwe have before us. The court refused to socharge. No request was made to submit the matterto the jury as a question of fact, even would thathave been proper upon the record before us.The judgment appealed from should beaffirmed, with costs.POUND, LEHMAN, and KELLOGG, JJ.,concur with CARDOZO, C.J.ANDREWS, J., dissents in opinion in whichCRANE and O'BRIEN, JJ., concur.Judgment reversed, etc.Questions and Notes1. What is the difference between Cardozo'sand Andrews' opinions? Which do you find morepersuasive?2. There is some question about whether theissue of foreseeability is for the judge or for thePALSGRAF V. LONG ISLAND R. CO.

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 119jury. Although Cardozo views the issue offoreseeability as a component of the question ofwhether or not the defendant owes a duty to theplaintiff (which is usually considered a questionof law rather than fact, and thus reserved for thejudge), the specific facts of a case must often bedetermined by the jury. Thus in many cases it willbe the jury who determines whether or not theplaintiff was foreseeable.3. A trilogy of British cases have struggledwith the application of the foreseeability doctrine.The Polemis case (3 K.B. 560 [1921], All E.R.40) was referenced in Judge Andrews dissentingopinion, supra. A plank was dropped by thedefendant's employees into the hold of a shipcarrying cans of gasoline. The falling planksomehow created a spark that ignited the vapor inthe hold, destroying the ship and its cargo.Arbitrators found that the explosion was not aforeseeable result of the negligence. However, thejudge concluded that "once the act is negligent,the fact that its exact operation was not foreseenis immaterial." Is this consistent with theforeseeability doctrine? Some judges thought not.In Overseas Tankship v. Morts Dock &Engineering, P.C. [1961], 1 All E.R. 404 ("WagonMound 1"), the Privy Council considered anotherharbor fire. The tanker Wagon Mound spilled alarge amount of furnace oil into Sydney Harbour.Experts consulted at the time assured the dockand ship owners that the oil slick could not catchfire. However, it was ignited by a freakishaccident in which molten metal, dropped from awelder, landed on floating rags; the rags acted asa wick, and started a fire that engulfed a dock andassociated boats. The court rejected the broadnotion of causation represented by Polemis andinstead limited liability to that which isforeseeable, denying any recovery beyond thenuisance damage caused by the spilled oil.However, in The Wagon Mound ("WagonMound 2"), P.C. [1966] 2 All E.R. 709, the PrivyCouncil backed away from the stricter rule inWagon Mound 1 and held that although the riskof ignition was very slight, the owners of thetanker should have taken some action to preventthe calamity in light of the serious risk the oilpresented. A reasonable person, Lord Reid stated,"would not neglect such a risk if action toeliminate it presented no difficulty, involved nodisadvantage and required no expense." Analyzedin terms of Learned Hand's formula, there is noadditional burden to prevent the oil spill (sinceordinary care would require it anyway), and thusthe slightest chance of additional damage wouldmake the actor negligent for failing to preventsuch an injury.The leading American case on theforeseeability question is Kinsman Transit, whichfollows:KINSMAN TRANSIT CO338 F.2d 708 (2d Cir. 1964)FRIENDLY, Circuit JudgeWe have here six appeals, 28 U.S.C.1292(A)(3), from an interlocutory decree inadmiralty adjudicating liability. The litigation, inthe District Court for the Western District of NewYork, arose out of a series of misadventures on anavigable portion of the Buffalo River during thenight of January 21, 1959. The owners of twovessels petitioned for exoneration from orlimitation of liability; numerous claimantsappeared in these proceedings and also filedlibels against the Continental Grain Company andthe City of Buffalo, which filed cross-claims. Theproceedings were consolidated for trial beforeJudge Burke. We shall summarize the facts asfound by him:The Buffalo River flows through Buffalofrom east to west, with many turns and bends,until it empties into Lake Erie. Its navigablewestern portion is lined with docks, grainelevators, and industrial installations; during thewinter, lake vessels tie up there pendingresumption of navigation on the Great Lakes,without power and with only a shipkeeper aboard.About a mile from the mouth, the City of Buffalomaintains a lift bridge at Michigan Avenue. Thawsand rain frequently cause freshets to develop inthe upper part of the river and its tributary,Cazenovia Creek; currents then range up to fifteenmiles an hour and propel broken ice down theriver, which sometimes overflows its banks.On January 21, 1959, rain and thaw followeda period of freezing weather. The United StatesWeather Bureau issued appropriate warningswhich were published and broadcast. Around 6P.M. an ice jam that had formed in CazenoviaPALSGRAF V. LONG ISLAND R. CO.

120 2. PROXIMATE CAUSECreek disintegrated. Another ice jam formed justwest of the junction of the creek and the river; itbroke loose around 9 P.M.The MacGilvray Shiras, owned by TheKinsman Transit Company, was moored at thedock of the Concrete Elevator, operated byContinental Grain Company, on the south side ofthe river about three miles upstream of theMichigan Avenue Bridge. She was loaded withgrain owned by Continental. The berth, east of themain portion of the dock, was exposed in thesense that about 150' of the Shiras' forward end,pointing upstream, and 70' of her stern - a total ofover half her length - projected beyond the dock.This left between her stem and the bank a space ofwater seventy-five feet wide where the ice andother debris could float in and accumulate. Theposition was the more hazardous in that the berthwas just below a bend in the river, and the Shiraswas on the inner bank. None of her anchors hadbeen put out. From about 10 P.M. large chunks ofice and debris began to pile up between the Shiras'starboard bow and the bank; the pressure exertedby this mass on her starboard bow was augmentedby the force of the current and of floating iceagainst her port quarter. The mooring lines beganto part, and a "deadman," to which the No. 1mooring cable had been attached, pulled out of theground - the judge finding that it had not beenproperly constructed or inspected. About 10:40P.M. the stern lines parted, and the Shiras driftedinto the current. During the previous fortyminutes, the shipkeeper took no action to readythe anchors by releasing the devil's claws; whenhe sought to drop them after the Shiras brokeloose, he released the compressors with the clawsstill hooked in the chain so that the anchorsjammed and could no longer be dropped. The trialjudge reasonably found that if the anchors haddropped at that time, the Shiras would probablyhave fetched up at the hairpin bend just below theConcrete Elevator, and that in any case theywould considerably have slowed her progress, thesignificance of which will shortly appear.Careening stern first down the S-shaped river,the Shiras, at about 11 P.M., struck the bow of theMichael K. Tewksbury, owned by MidlandSteamship Line, Inc. The Tewksbury was mooredin a relatively protected area flush against the faceof a dock on the outer bank just below a hairpinbend so that no opportunity was afforded for iceto build up between her port bow and the dock.Her shipkeeper had left around 5 P.M. and spentthe evening watching television with a girl friendand her family. The collision caused theTewksbury's mooring lines to part; she too driftedstern first down the river, followed by the Shiras.The collision caused damage to the SteamerDruckenmiller which was moored opposite theTewksbury. Thus far there was no substantialconflict in the testimony; as to what followedthere was. Judge Burke found, and we accept hisfindings as soundly based, that at about 10:43P.M., Goetz, the superintendent of the ConcreteElevator, telephoned Kruptavich, anotheremployee of Continental, that the Shiras wasadrift; Kruptavich called the Coast Guard, whichcalled the city fire station on the river, which inturn warned the crew on the Michigan AvenueBridge, this last call being made about 10:48 P.M.Not quite twenty minutes later the watchman atthe elevator where the Tewksbury had beenmoored phoned the bridge crew to raise thebridge. Although not more than two minutes andten seconds were needed to elevate the bridge tofull height after traffic was stopped, assuming thatthe motor started promptly, the bridge was justbeing raised when, at 11:17 P.M., the Tewksburycrashed into its center. The bridge crew consistedof an operator and two tenders; a change of shiftwas scheduled for 11 P.M. The inference is ratherstrong, despite contrary testimony, that theoperator on the earlier shift had not yet returnedfrom a tavern when the telephone call from thefire station was received; that the operator on thesecond shift did not arrive until shortly before thecall from the elevator where the Tewksbury hadbeen moored; and that in consequence the bridgewas not raised until too late.The first crash was followed by a second,when the south tower of the bridge fell. TheTewksbury grounded and stopped in the wreckagewith her forward end resting against the stern ofthe Steamer Farr, which was moored on the southside of the river just above the bridge. The Shirasended her journey with her stern against theTewksbury and her bow against the north side ofthe river. So wedged, the two vessels substantiallydammed the flow, causing water and ice to backup and flood installations on the banks withconsequent damage as far as the ConcreteElevator, nearly three miles upstream. Two of thebridge crew suffered injuries. Later the northtower of the bridge collapsed, damaging adjacentproperty.[The trial court concluded that the damagescaused by the Shiras were without the knowledgeof the owner, thus allowing Kinsman to limit itsKINSMAN TRANSIT CO.

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 121liability to the value of the Shiras and its cargo;that the Tewksbury and its owner deservedexoneration; that the City of Buffalo was at faultfor failing to raise the Michigan Avenue Bridge;that the city was not at fault for the state of theflood improvements or for failing to dynamite theice jams; and that the Tewksbury and theDruckenmiller could recover from Continentaland Kinsman for damages suffered at theStandard Elevator dock. - ed.]* * *We see no reason why an actor engaging inconduct which entails a large risk of small damageand a small risk of other and greater damage, ofthe same general sort, from the same forces, andto the same class of persons, should be relieved ofresponsibility for the latter simply because thechance of its occurrence, if viewed alone, may nothave been large enough to require the exercise ofcare. By hypothesis, the risk of the lesser harmwas sufficient to render his disregard of itactionable; the existence of a less likely additionalrisk that the very forces against whose action hewas required to guard would produce other andgreater damage than could have been reasonablyanticipated should inculpate him further ratherthan limit his liability. This does not mean that thecareless actor will always be held for all damagesfor which the forces that he risked were a cause infact. Somewhere a point will be reached whencourts will agree that the link has become tootenuous - that what is claimed to be consequenceis only fortuity. Thus, if the destruction of theMichigan Avenue Bridge had delayed the arrivalof a doctor, with consequent loss of a patient'slife, few judges would impose liability on any ofthe parties here, although the agreement in resultmight not be paralleled by similar unanimity inreasoning; perhaps in the long run one returns toJudge Andrews' statement in Palsgraf, 248 N.Y. at354-355, 162 N.E. at 104 (dissenting opinion). "Itis all a question of expediency, ... of fairjudgment, always keeping in mind the fact that weendeavor to make a rule in each case that will bepractical and in keeping with the generalunderstanding of mankind." It would be pleasantif greater certainty were possible, see PROSSER,TORTS, 262, but the many efforts that have beenmade at defining the locus of the "uncertain andwavering line," 248 N.Y. at 354, 162 N.E. 99, arenot very promising; what courts do in such casesmakes better sense than what they, or others, say.Where the line will be drawn will vary from ageto age; as society has come to rely increasingly oninsurance and other methods of loss-sharing, thepoint may lie further off than a century ago. Hereit is surely more equitable that the losses from theoperators' negligent failure to raise the MichiganAvenue Bridge should be ratably borne byBuffalo's taxpayers than left with the innocentvictims of the flooding; yet the mind is alsorepelled by a solution that would impose liabilitysolely on the City and exonerate the personswhose negligent acts of commission and omissionwere the precipitating force of the collision withthe bridge and its sequelae. We go only so far asto hold that where, as here, the damages resultedfrom the same physical forces whose existencerequired the exercise of greater care than wasdisplayed and were of the same general sort thatwas expectable, unforeseeability of the exactdevelopments and of the extent of the loss will notlimit liability. Other fact situations can be dealtwith when they arise.* * *MOORE, Circuit Judge (concurring anddissenting)I do not hesitate to concur with JudgeFRIENDLY'S well-reasoned and well-expressedopinion as to limitation of Kinsman's liability, theextent of the liability of the City of Buffalo,Continental and Kinsman for the damagessuffered by the City, the Shiras, the Tewksbury,the Druckenmiller and the Farr and the division ofdamages.I cannot agree, however, merely because"society has come to rely increasingly oninsurance and other methods of loss-sharing" thatthe courts should, or have the power to, create avast judicial insurance company which willadequately compensate all who have suffereddamages. Equally disturbing is the suggestion that"Here it is surely more equitable that the lossesfrom the operators' negligent failure to raise theMichigan Avenue Bridge should be ratably borneby Buffalo's taxpayers than left with the innocentvictims of the flooding." Under any suchprinciple, negligence suits would become furthersimplified by requiring a claimant to establishonly his own innocence and then offer, in additionto his financial statement, proof of the financialcondition of the respective defendants. Judgmentwould be entered against the defendant whichcourt or jury decided was best able to pay. Nor amI convinced that it should be the responsibility ofKINSMAN TRANSIT CO..

122 2. PROXIMATE CAUSEthe Buffalo taxpayers to reimburse the "innocentvictims" in their community for damagessustained. In my opinion, before financial liabilityis imposed, there should be some showing of legalliability.Unfortunate though it was for Buffalo to havehad its fine vehicular bridge demolished in a mostunexpected manner, I accept the finding ofliability for normal consequences because the Cityhad plenty of time to raise the bridge after noticewas given. Bridges, however, serve two purposes.They permit vehicles to cross the river when theyare down; they permit vessels to travel on theriver when they are up. But no bridge builder orbridge operator would envision a bridge as a damor as a dam potential.By an extraordinary concatenation of evenmore extraordinary events, not unlike thehumorous and almost-beyond-all-imaginationsequences depicted by the famous cartoonist,Rube Goldberg, the Shiras with its companionswhich it picked up en route did combine with thebridge demolition to create a very effective damacross the Buffalo River. Without specification ofthe nature of the damages, claims in favor of sometwenty persons and companies were allowed(Finding of Fact #33, Interlocutory Decree, par.11) resulting from the various collisions and from"the damming of the river at the bridge, thebacking up of the water and ice upstream, and theoverflowing of the banks of the river and floodingof industrial installations along the river banks."(Sup. Finding of Fact #26a.) My dissent is limitedto that portion of the opinion which approves theawarding of damages suffered as a result of theflooding of various properties upstream. I am notsatisfied with reliance on hindsight or on theassumption that since flooding occurred,therefore, it must have been foreseeable. In fact,the majority hold that the danger "of floodingwould not have been unforeseeable under thecircumstances to anyone who gave them thought."But believing that "anyone" might be too broad,they resort to that most famous of all legalmythological characters, the reasonably "prudentman." Even he, however, "carefully pondering theproblem," is not to be relied upon because theypermit him to become prudent "with the aid ofhindsight."The majority, in effect, would remove fromthe law of negligence the concept of foreseeabilitybecause, as they say, "The weight of authority inthis country rejects the limitation of damages toconsequences foreseeable at the time of thenegligent conduct when the consequences are"direct." Yet lingering thoughts of recognizedlegal principles create for them lingering doubtsbecause they say: "This does not mean that thecareless actor will always be held for all damagesfor which the forces that he risked were a cause infact. Somewhere a point will be reached whencourts will agree that the link has become tootenuous - that what is claimed to be consequenceis only fortuity." The very example given, namely,the patient who dies because the doctor is delayedby the destruction of the bridge, certainly presentsa direct consequence as a factual matter yet themajority opinion states that "few judges wouldimpose liability on any of the parties here," underthese circumstances.In final analysis the answers to the questionswhen the link is "too tenuous" and when"consequence is only fortuity" are dependentsolely on the particular point of view of theparticular judge under the particularcircumstances. In differing with my colleagues, Imust be giving "unconscious recognition of theharshness of holding a man for what he could notconceivably have guarded against, becausehuman foresight could not go so far." (L. HAND,C.J., in Sinram v. Pennsylvania R. Co., 61 F.2d767, 770, 2 Cir., 1932.) If "foreseeability" be thetest, I can foresee the likelihood that a vesselnegligently allowed to break its moorings and todrift uncontrolled in a rapidly flowing river maywell strike other ships, piers and bridges.Liability would also result on the "directconsequence" theory. However, to me thefortuitous circumstance of the vessels soarranging themselves as to create a dam is much"too tenuous."The decisions bearing on the foreseeabilityquestion have been so completely collected inthree English cases that no repetition of thereasoning pro and con of this principle need bemade here. To these cases may be added themany American cases cited in the majorityopinion which to me push the doctrine offoreseeability to ridiculous lengths - ridiculous, Isuppose, only to the judge whose "humanforesight" is restricted to finite limits but not tothe judge who can say: It happened; ergo, it musthave been foreseeable. The line of demarcationwill always be "uncertain and wavering,"Palsgraf v. Long Island R.R., 248 N.Y. 339, 354,162 N.E. 99, 59 A.L.R. 1253 (1928), but if,concededly, a line exists, there must be areas oneach side. The flood claimants are much too farKINSMAN TRANSIT CO.

§ B. LEGAL CAUSE: POLICY CONSIDERATIONS PRECLUDING LIABILITY 123on the non-liability side of the line. As to them, Iwould not award any recovery even if thetaxpayers of Buffalo are better able to bear theloss.Questions and Notesfrying pan, so to speak), the rat ran back to themachine, which then exploded from the gasolinefumes. Since the defendant had reason toanticipate the risk of explosion from supplyinggasoline to clean his machine, the injury wasforeseeable, even though the immediateprecipitating event was not.1. Although an unforeseeable plaintiff isunable to recover, a foreseeable plaintiff is notlimited to those types of damage that wereforeseeable; the plaintiff is entitled to a fullrecovery. The case often cited for this propositionis Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403(1891). There a 12-year-old schoolboy kicked aclassmate in the shin; because of a prior injurythe kick precipitated serious injury to the boy'sleg. The defendant was required to pay for theentire cost of the injury, despite the fact that areasonable person could not have foreseen theseriousness of the injury inflicted. This rule issometimes referred to as the "thin-skulledplaintiff" or "eggshell plaintiff" doctrine: If I amliable for a slight injury to the plaintiff's skull, Iam fully liable for whatever injury follows fromthe wrongful contact. This is essentially the samerule as the court observed in Polemis; but the rulechanges dramatically when no injury at all isforeseeable with respect to the plaintiff. Is this asensible distinction?2. Note that in Kinsman the court contrastedthe foreseeable consequences of a negligent actwith those consequences that are "only fortuity."Does this suggest a connection between theconcept of "increased risk" as discussed in Berryand the requirement that the injured victim beforeseeable?3. As a related point, it is important to notethat the plaintiff need not establish that the exactmechanism by which the injury occurred wasforeseeable; even a rather bizarre chain of eventswill support liability if the general result isforeseeable from the defendant's conduct. Forexample, in United Novelty Co. v. Daniels, theplaintiff was injured when he was using gasolineto clean the defendant's machine. In the course ofthe cleaning process, a rat hidden in the machinedecided he would move to new quarters, andscurried away. Unfortunately for the rat (as wellas the plaintiff), the rat's escape route took himthrough a furnace with an open flame, causingthe rat's fur to catch fire. Out of the fire (into theKINSMAN TRANSIT CO..

Chapter 3DamagesIntroductionThis chapter is difficult (and long) in largepart because it incorporates a number of differentconcepts within it. As the first selection in thischapter notes, most of the class time in Torts isspent in learning the rules that govern theassignment of liability. When the time comes todetermine damages, it is difficult to formulategeneral rules. There are questions not only abouthow to calculate damages, but also whethercertain kinds of damages qualify for anycompensation at all. At times it appears thatwithin the damages analysis we are reopening thequestion of liability.(1) What kinds of damages arerecoverable? For example, in Spade v. Lynn(infra, § A.2.), the plaintiff was badly frightenedwhen some men on her train car were negligentlyallowed to bump into her. Had she been knockedover and bruised, the court would have allowedher to recover not only for the bruising but for the"pain and suffering" (the emotional damages,including her fright) as well. However, becauseshe suffered "only" emotional shock, withoutphysical injury, the court did not let her recoveranything. Is this a redetermination of the liabilityquestion? Not really, since we have decided thatthis kind of behavior (negligently knockingsomeone over) qualifies for an assignment ofliability. However, the courts are setting athreshold requirement for what quantum ofdamage justifies the invocation of the judicialmachinery.(2) Who is Entitled to Compensation?Similarly, in Dillon v. Legg (infra, § B.3.), thedefendant ran over and killed a little girl in acrosswalk. Clearly the defendant must paycompensation for the death of the girl. But whatabout her sister, who was also in the intersectionbut wasn't hit? Should she be compensated for herinjuries? What about her mother, who witnessedthe accident but wasn't in any physical danger?Similarly, in First National Bank of Meadville(infra, § B.1.), the defendant's negligence killed alawyer. His widow and children sought recoverynot only on behalf of his estate, but also in theirown right. Death is the most obvious case wherean injury to one person may require compensationfor injury suffered by a related party. Should thisextend to severe injury as well as to death cases?What about "wrongful birth" or even "wrongfullife" cases?(3) How is the Actual Amount Determined?A final set of questions revolves around how muchthe defendant must pay for the kinds of injuriessociety decides to compensate. Although theactual calculation of awards may seem incapableof analysis, the tort student must have some ideaof whether the award will be large or small; itmakes no sense to spend hours and hoursworrying about the prospect of liability withoutsome conception of the size of the award ifliability is found. The student must also be awareof limits that courts (or legislatures) place on theoverall size of the award.Jaffe, Damages for Personal Injury: TheImpact of Insurance18 LAW & CONTEMP. PROBS. 219, 221-222(1953)I suggest that the critical controversy in personalinjury torts today is not in the area of liability but ofdamages. Questions of liability have great doctrinalfascination. Questions of damage - and particularlytheir magnitude - do not lend themselves so easily todiscourse. Professors dismiss them airily as mattersof trial administration. Judges consign them uneasilyto juries with a minimum of guidance, occasionallyobserving loosely that there are no rules forassessing damages in personal injury cases. There isanalogy for this situation in Jerome Frank'scomplaint that fact finding, though of paramountimportance is neglected by teachers who devotethemselves too exclusively to appellate law. Thismay reflect not so much their judgment of relativeimportance (as Judge Frank supposes) as the relativeadaptability of the subjects to conceptualization.And so it probably is with the subject of damages.

§ A. TYPES OF RECOVERABLE DAMAGES 125§ A. Types of RecoverableDamages1. Property DamageMcCURDY v. UNION PAC. R.R.68 Wash.2d 457, 413 P.2d 617 (1966)* * *The primary principles to be applied inawarding damages for negligent injuries toproperty is that the owner shall have actualmonetary compensation for the loss sustained. Ifthe property is a total loss the measure of damagesis the value of the property destroyed or damaged.This is its market value, if it has a market value.If the property is damaged but not destroyed, themeasure of damages is the difference between themarket value of the property before the injury andits market value after the injury. (Again, if it has amarket value.) If the property does not have amarket value, then if a total loss, the measure ofdamages is the cost to replace or reproduce thearticle. If it cannot be reproduced or replaced, thenits value to the owner may be considered in fixingdamages.The term "market value" as that term is used,means that reasonable sum of money which theproperty would bring on a fair sale, by a manwilling to sell, but not obliged to sell, to a manwilling to buy, but not obliged to buy.2. "Economic" LossesIntroductory Note. The term "pureeconomic loss" is used to describe losses in whichthere has been no property damage, but only aloss of profits that would have been enjoyed bythe plaintiff but for the defendant's negligence.For example, suppose the defendant negligentlyfails to deliver a critical item needed at theplaintiff's factory, and as a result the plaintiffsuffers significant financial loss. May thosedamages be recovered? Most jurisdictions treatthis as a question to be governed by the UniformCommercial Code rather than by tort law. SeeGary Schwartz, Economic Loss in American TortLaw: The Examples of J'Aire and of ProductsLiability, 23 SAN DIEGO L. REV. 37 (1986).What we consider here are economic lossesthat flow from a personal injury to the plaintiff.a. Lost WagesO'SHEA v. RIVERWAY TOWING677 F.2d 1194 (CA 7, 1982)POSNER, Circuit JudgeThis is a tort case under the federal admiraltyjurisdiction. We are called upon to decidequestions of contributory negligence and damageassessment, in particular the question - one of firstimpression in this circuit - whether, and if so how,to account for inflation in computing lost futurewages.On the day of the accident, Margaret O'Sheawas coming off duty as a cook on a towboatplying the Mississippi River. A harbor boatoperated by the defendant, Riverway TowingCompany, carried Mrs. O'Shea to shore and whilegetting off the boat she fell and sustained theinjury complained of. The district judge foundRiverway negligent and Mrs. O'Shea free fromcontributory negligence, and assessed damages inexcess of $150,000. Riverway appeals only fromthe finding that there was no contributorynegligence and from the part of the damage awardthat was intended to compensate Mrs. O'Shea forher lost future wages.* * *The more substantial issues in this appealrelate to the computation of lost wages. Mrs.O'Shea's job as a cook paid her $40 a day, andsince the custom was to work 30 daysconsecutively and then have the next 30 days off,this comes to $7200 a year although, as we shallsee, she never had earned that much in a singleyear. She testified that when the accident occurredshe had been about to get another cook's job on aMississippi towboat that would have paid her $60

126 3. DAMAGESa day ($10,800 a year). She also testified that shehad been intending to work as a boat's cook untilshe was 70 - longer if she was able. An economistwho testified on Mrs. O'Shea's behalf used theforegoing testimony as the basis for estimating thewages that she lost because of the accident. Hefirst subtracted federal income tax from yearlywage estimates based on alternative assumptionsabout her wage rate (that it would be either $40 or$60 a day); assumed that this wage would havegrown by between six and eight percent a year;assumed that she would have worked either to age65 or to age 70; and then discounted the resultinglost-wage estimates to present value, using adiscount rate of 8.5 percent a year. Thesecalculations, being based on alternativeassumptions concerning starting wage rate, annualwage increases, and length of employment,yielded a range of values rather than a singlevalue. The bottom of the range was $50,000. Thisis the present value, computed at an 8.5 percentdiscount rate, of Mrs. O'Shea's lost future wageson the assumption that her starting wage was $40a day and that it would have grown by six percenta year until she retired at the age of 65. The top ofthe range was $114,000, which is the presentvalue (again discounted at 8.5 percent) of her lostfuture wages assuming she would have worked tillshe was 70 at a wage that would have started at$60 a day and increased by eight percent a year.The judge awarded a figure - $86,033 - near themidpoint of this range. He did not explain in hiswritten opinion how he had arrived at this figure,but in a preceding oral opinion he stated that hewas "not certain that she would work until age 70at this type of work," although "she certainly wasentitled to" do so and "could have earnedsomething"; and that he had not "felt bound by(the economist's) figure of eight per cent increasein wages" and had "not found the wages based onnecessarily a 60 dollar a day job." If this can betaken to mean that he thought Mrs. O'Shea wouldprobably have worked till she was 70, starting at$40 a day but moving up from there at six ratherthan eight percent a year, the economist's estimateof the present value of her lost future wageswould be $75,000.There is no doubt that the accident disabledMrs. O'Shea from working as a cook on a boat.The break in her leg was very serious: it reducedthe stability of the leg and caused her to fallfrequently. It is impossible to see how she couldhave continued working as a cook, a jobperformed mostly while standing up, andespecially on a boat, with its unsteady motion. ButRiverway argues that Mrs. O'Shea (who has notworked at all since the accident, which occurredtwo years before the trial) could have gotten somesort of job and that the wages in that job should bededucted from the admittedly higher wages thatshe could have earned as a cook on a boat.The question is not whether Mrs. O'Shea istotally disabled in the sense, relevant to socialsecurity disability cases but not tort cases, thatthere is no job in the American economy forwhich she is medically fit. Compare Cummins v.Schweiker, 670 F.2d 81 (7th Cir. 1982), with NewOrleans (Gulfwide) Stevedores v. Turner, 661 F.2d1031, 1037-38 (5th Cir. 1981). It is whether shecan by reasonable diligence find gainfulemployment, given the physical condition inwhich the accident left her. See, e.g., Baker v.Baltimore & Ohio R.R., 502 F.2d 638, 644 (6thCir. 1974). Here is a middle-aged woman, veryoverweight, badly scarred on one arm and one leg,unsteady on her feet, in constant and serious painfrom the accident, with no education beyond highschool and no work skills other than cooking, ajob that happens to require standing for longperiods which she is incapable of doing. It seemsunlikely that someone in this condition could findgainful work at the minimum wage. True, theprobability is not zero; and a better procedure,therefore, might have been to subtract from Mrs.O'Shea's lost future wages as a boat's cook thewages in some other job, discounted (i.e.,multiplied) by the probability - very low - that shewould in fact be able to get another job. But thedistrict judge cannot be criticized for having failedto use a procedure not suggested by either party.The question put to him was the dichotomous one,would she or would she not get another job if shemade reasonable efforts to do so? This requiredhim to decide whether there was a more than 50percent probability that she would. We cannot saythat the negative answer he gave to that questionwas clearly erroneous.Riverway argues next that it was wrong forthe judge to award damages on the basis of a wagenot validated, as it were, by at least a year'semployment at that wage. Mrs. O'Shea had neverworked full time, had never in fact earned morethan $3600 in a full year, and in the yearpreceding the accident had earned only $900. Butprevious wages do not put a cap on an award oflost future wages. If a man who had never workedin his life graduated from law school, beganworking at a law firm at an annual salary ofO’SHEA V. RIVERWAY TOWING

§ A. TYPES OF RECOVERABLE DAMAGES 127$35,000, and was killed the second day on the job,his lack of a past wage history would be irrelevantto computing his lost future wages. The presentcase is similar if less dramatic. Mrs. O'Shea didnot work at all until 1974, when her husband died.She then lived on her inheritance and worked at avariety of part-time jobs till January 1979, whenshe started working as a cook on the towboat.According to her testimony, which the trial judgebelieved, she was then working full time. It isimmaterial that this was her first full-time job andthat the accident occurred before she had held itfor a full year. Her job history was typical ofwomen who return to the labor force after theirchildren are grown or, as in Mrs. O'Shea's case,after their husband dies, and these women are, likeany tort victims, entitled to damages based onwhat they would have earned in the future ratherthan on what they may or may not have earned inthe past.If we are correct so far, Mrs. O'Shea wasentitled to have her lost wages determined on theassumption that she would have earned at least$7200 in the first year after the accident and thatthe accident caused her to lose that entire amountby disabling her from any gainful employment.And since Riverway neither challenges the districtjudge's (apparent) finding that Mrs. O'Shea wouldhave worked till she was 70 nor contends that thelost wages for each year until then should bediscounted by the probability that she would infact have been alive and working as a boat's cookthroughout the damage period, we may alsoassume that her wages would have been at least$7200 a year for the 12 years between the date ofthe accident and her seventieth birthday. ButRiverway does argue that we cannot assume shemight have earned $10,800 a year rather than$7200, despite her testimony that at the time ofthe accident she was about to take another job as aboat's cook where she would have been paid at therate of $60 rather than $40 a day. The point is notterribly important since the trial judge gave littleweight to this testimony, but we shall discuss itbriefly. Mrs. O'Shea was asked on directexamination what "pay you would have worked"for in the new job. Riverway's counsel objected onthe ground of hearsay, the judge overruled hisobjection, and she answered $60 a day. Theobjection was not well taken. Riverway arguesthat only her prospective employer knew what herwage was, and hence when she said it was $60 shewas testifying to what he had told her. But anemployee's wage is as much in the personalknowledge of the employee as of the employer. IfMrs. O'Shea's prospective employer had testifiedthat he would have paid her $60, Riverway'scounsel could have made the converse hearsayobjection that the employer was really testifyingto what Mrs. O'Shea had told him she was willingto work for. Riverway's counsel could oncross-examination have probed the basis for Mrs.O'Shea's belief that she was going to get $60 a dayin a new job, but he did not do so and cannotcomplain now that the judge may have given hertestimony some (though little) weight.We come at last to the most important issue inthe case, which is the proper treatment of inflationin calculating lost future wages. Mrs. O'Shea'seconomist based the six to eight percent rangewhich he used to estimate future increases in thewages of a boat's cook on the general pattern ofwage increases in service occupations over thepast 25 years. During the second half of thisperiod the rate of inflation has been substantialand has accounted for much of the increase innominal wages in this period; and to use thatincrease to project future wage increases istherefore to assume that inflation will continue,and continue to push up wages. Riverway arguesthat it is improper as a matter of law to takeinflation into account in projecting lost futurewages. Yet Riverway itself wants to take inflationinto account - one-sidedly, to reduce the amountof the damages computed. For Riverway does notobject to the economist's choice of an 8.5 percentdiscount rate for reducing Mrs. O'Shea's lostfuture wages to present value, although the rateincludes an allowance - a very large allowance -for inflation.To explain, the object of discounting lostfuture wages to present value is to give theplaintiff an amount of money which, investedsafely, will grow to a sum equal to those wages.So if we thought that but for the accident Mrs.O'Shea would have earned $7200 in 1990, and wewere computing in 1980 (when this case wastried) her damages based on those lost earnings,we would need to determine the sum of moneythat, invested safely for a period of 10 years,would grow to $7200. Suppose that in 1980 therate of interest on ultra-safe (i.e., federalgovernment) bonds or notes maturing in 10 yearswas 12 percent. Then we would consult a table ofpresent values to see what sum of money investedat 12 percent for 10 years would at the end of thattime have grown to $7200. The answer is $2318.But a moment's reflection will show that to giveO’SHEA V. RIVERWAY TOWING

128 3. DAMAGESMrs. O'Shea $2318 to compensate her for lostwages in 1990 would grossly undercompensateher. People demand 12 percent to lend moneyrisklessly for 10 years because they expect theirprincipal to have much less purchasing powerwhen they get it back at the end of the time. Inother words, when long-term interest rates arehigh, they are high in order to compensate lendersfor the fact that they will be repaid in cheaperdollars. In periods when no inflation isanticipated, the risk-free interest rate is betweenone and three percent. See references in Doca v.Marina Mercante Nicaraguense, S.A., 634 F.2d30, 39 n.2 (2d Cir. 1980). Additional percentagepoints above that level reflect inflation anticipatedover the life of the loan. But if there is inflation itwill affect wages as well as prices. Therefore togive Mrs. O'Shea $2318 today because that is thepresent value of $7200 10 years hence, computedat a discount rate - 12 percent - that consistsmainly of an allowance for anticipated inflation, isin fact to give her less than she would have beenearning then if she was earning $7200 on the dateof the accident, even if the only wage increasesshe would have received would have been thosenecessary to keep pace with inflation. There are(at least) two ways to deal with inflation incomputing the present value of lost future wages.One is to take it out of both the wages and thediscount rate - to say to Mrs. O'Shea, "we aregoing to calculate your probable wage in 1990 onthe assumption, unrealistic as it is, that there willbe zero inflation between now and then; and, to beconsistent, we are going to discount the amountthus calculated by the interest rate that would becharged under the same assumption of zeroinflation." Thus, if we thought Mrs. O'Shea's real(i.e., inflation-free) wage rate would not rise in thefuture, we would fix her lost earnings in 1990 as$7200 and, to be consistent, we would discountthat to present (1980) value using an estimate ofthe real interest rate. At two percent, thisprocedure would yield a present value of $5906.Of course, she would not invest this money at amere two percent. She would invest it at the muchhigher prevailing interest rate. But that would notgive her a windfall; it would just enable her toreplace her lost 1990 earnings with an amountequal to what she would in fact have earned inthat year if inflation continues, as most peopleexpect it to do. (If people did not expect continuedinflation, long-term interest rates would be muchlower; those rates impound investors' inflationaryexpectations.)An alternative approach, which yields thesame result, is to use a (higher) discount ratebased on the current risk-free 10-year interest rate,but apply that rate to an estimate of lost futurewages that includes expected inflation. Contraryto Riverway's argument, this projection would notrequire gazing into a crystal ball. The expectedrate of inflation can, as just suggested, be read offfrom the current long-term interest rate. If thatrate is 12 percent, and if as suggested earlier thereal or inflation-free interest rate is only one tothree percent, this implies that the market isanticipating 9-11 percent inflation over the next10 years, for a long-term interest rate is simply thesum of the real interest rate and the anticipatedrate of inflation during the term.Either approach to dealing with inflation isacceptable (they are, in fact, equivalent) and weby no means rule out others; but it is illogical andindefensible to build inflation into the discountrate yet ignore it in calculating the lost futurewages that are to be discounted. That results insystematic undercompensation, just as buildinginflation into the estimate of future lost earningsand then discounting using the real rate of interestwould systematically overcompensate. The formererror is committed, we respectfully suggest, bythose circuits, notably the Fifth, that refuse toallow inflation to be used in projecting lost futureearnings but then use a discount rate that has builtinto it a large allowance for inflation. See, e.g.,Culver v. Slater Boat Co., 644 F.2d 460, 464 (5thCir. 1981) (using a 9.125 percent discount rate).We align ourselves instead with those circuits (amajority, see Doca v. Marina MercanteNicaraguense, S.A., supra, 634 F.2d at 35-36),notably the Second, that require that inflation betreated consistently in choosing a discount rateand in estimating the future lost wages to bediscounted to present value using that rate. See id.at 36-39. We note that in Byrd v. Reederei, 638F.2d 1300, 1307-08 (5th Cir. 1981), a panel of theFifth Circuit indicated misgivings over thatcircuit's position and that rehearing en banc hasbeen granted. 650 F.2d 1324 (1981).Applying our analysis to the present case, wecannot pronounce the approach taken by theplaintiff's economist unreasonable. He chose adiscount rate - 8.5 percent - well above the realrate of interest, and therefore containing anallowance for inflation. Consistency required himto inflate Mrs. O'Shea's starting wage as a boat'scook in calculating her lost future wages, and hedid so at a rate of six to eight percent a year. If thisO’SHEA V. RIVERWAY TOWING

§ A. TYPES OF RECOVERABLE DAMAGES 129rate had been intended as a forecast of purelyinflationary wage changes, his approach would beopen to question, especially at the upper end ofhis range. For if the estimated rate of inflationwere eight percent, the use of a discount rate of8.5 percent would imply that the real rate ofinterest was only .5 percent, which is lower thanmost economists believe it to be for anysubstantial period of time. But wages do not risejust because of inflation. Mrs. O'Shea couldexpect her real wages as a boat's cook to rise asshe became more experienced and as average realwage rates throughout the economy rose, as theyusually do over a decade or more. It would not beoutlandish to assume that even if there were noinflation, Mrs. O'Shea's wages would have risenby three percent a year. If we subtract that fromthe economist's six to eight percent range, theinflation allowance built into his estimated futurewage increases is only three to five percent; andwhen we subtract these figures from 8.5 percentwe see that his implicit estimate of the real rate ofinterest was very high (3.5-5.5 percent). Thismeans he was conservative, because the higher thediscount rate used the lower the damagescalculated.If conservative in one sense, the economistwas most liberal in another. He made noallowance for the fact that Mrs. O'Shea, whosehealth history quite apart from the accident is notoutstanding, might very well not have survived -let alone survived and been working as a boat'scook or in an equivalent job - until the age of 70.The damage award is a sum certain, but the lostfuture wages to which that award is equated bymeans of the discount rate are mere probabilities.If the probability of her being employed as aboat's cook full time in 1990 was only 75 percent,for example, then her estimated wages in that yearshould have been multiplied by .75 to determinethe value of the expectation that she lost as aresult of the accident; and so with each of theother future years. Cf. Conte v. Flota Mercante delEstado, 277 F.2d 664, 670 (2d Cir. 1960). Theeconomist did not do this, and by failing to do thishe overstated the loss due to the accident.But Riverway does not make an issue of thisaspect of the economist's analysis. Nor of another:the economist selected the 8.5 percent figure forthe discount rate because that was the currentinterest rate on Triple A 10-year state andmunicipal bonds, but it would not make sense inMrs. O'Shea's federal income tax bracket to investin tax-free bonds. If he wanted to use nominalrather than real interest rates and wage increases(as we said was proper), the economist shouldhave used a higher discount rate and a higherexpected rate of inflation. But as theseadjustments would have been largely or entirelyoffsetting, the failure to make them was not acritical error.Although we are not entirely satisfied withthe economic analysis on which the judge, in theabsence of any other evidence of the present valueof Mrs. O'Shea's lost future wages, must haverelied heavily, we recognize that the exactnesswhich economic analysis rigorously pursuedappears to offer is, at least in the litigation setting,somewhat delusive. Therefore, we will not reversean award of damages for lost wages because ofquestionable assumptions unless it yields anunreasonable result - especially when, as in thepresent case, the defendant does not offer anyeconomic evidence himself and does not object tothe questionable steps in the plaintiff's economicanalysis. We cannot say the result here wasunreasonable. If the economist's method ofestimating damages was too generous to Mrs.O'Shea in one important respect it was, as wehave seen, niggardly in another. Another erroragainst Mrs. O'Shea should be noted: theeconomist should not have deducted her entireincome tax liability in estimating her future lostwages. Cf. Norfolk & W. Ry. v. Liepelt, 444 U.S.490, 495, 100 S. Ct. 755, 758, 62 L. Ed. 2d 689(1980). While it is true that the damage award isnot taxable, the interest she earns on it will be (apoint the economist may have ignored because ofhis erroneous assumption that she would investthe award in tax-exempt bonds), so that hismethod involved an element of double taxation.If we assume that Mrs. O'Shea could haveexpected a three percent annual increase in herreal wages from a base of $7200, that the realrisk-free rate of interest (and therefore theappropriate discount rate if we are consideringonly real wage increases) is two percent, and thatshe would have worked till she was 70, thepresent value of her lost future wages would be$91,310. This figure ignores the fact that she didnot have a 100 percent probability of actuallyworking till age 70 as a boat's cook, and fails tomake the appropriate (though probably, in herbracket, very small) net income tax adjustment;but it also ignores the possibility, small but nottotally negligible, that the proper base is really$10,800 rather than $7200.So we cannot say that the figure arrived at byO’SHEA V. RIVERWAY TOWING

130 3. DAMAGESthe judge, $86,033, was unreasonably high. Butwe are distressed that he made no attempt toexplain how he had arrived at that figure, since itwas not one contained in the economist'stestimony though it must in some way have beenderived from that testimony. Unlike many otherdamage items in a personal injury case, notablypain and suffering, the calculation of damages forlost earnings can and should be an analyticalrather than an intuitive undertaking. Therefore,compliance with Rule 52(a) of the Federal Rulesof Civil Procedure requires that in a bench trialthe district judge set out the steps by which hearrived at his award for lost future earnings, inorder to assist the appellate court in reviewing theaward. Cf. Rucker v. Higher Educ. Aids Bd., 669F.2d 1179, 1183-84 (7th Cir. 1982). The districtjudge failed to do that here. We do not considerthis reversible error, because our own analysisconvinces us that the award of damages for lostfuture wages was reasonable. But for the futurewe ask the district judges in this circuit to indicatethe steps by which they arrive at damage awardsfor lost future earnings.Judgment affirmed.Questions and Notes1. Awards for lost income due to personalinjuries have traditionally not been subject toincome taxes, stretching back to a federal lawpassed in 1919. However, as the bite taken out fortaxes has increased to a larger and largerpercentage, pressure has mounted to allow juriesto take this into account when figuring lostincome. A majority of jurisdictions still recognizea gross income rule in which evidence of theamount of income tax the plaintiff would pay isexcluded - lost earnings are based on gross, notnet income. Of the minority jurisdictions, mostallow or require evidence of what income taxwould have been owed on the salary whenfiguring lost earnings. However, there is amovement toward allowing judges to use theirdiscretion in giving such information to the jury.See generally Burke, Tax Treatment ofEmployment - Related Personal Injury Awards:The Need for Limits, 50 Mont. L. Rev. 13 (Winter1989).b. Medical ExpensesMedical expenses are often a substantial partof the "special damages" claimed in a personalinjury case. In a case involving brain injury orspinal damage, the cost of care may dwarf eventhe loss of lifetime earning capacity. For example,in Fortman v. Hemco, infra, the plaintiff's medicalcare was estimated to cost $180,000 per year. Orconsider Niles v. City of San Rafael, 42 Cal. App.3d 230, 116 Cal. Rptr. 733 (1974), in which theplaintiff suffered brain injury because of ahospital's negligent treatment. His overall awardwas $4 million, of which $500,000 was incomeloss, future medical and attendant care/educationwere $1.8 million, and pain and suffering $1.6million. Like lost income, damages for futuremedical expenses must be discounted to presentvalue.3. "Non-economic" Damages - Painand SufferingMORSE v. AUBURN AND SYRACUSERAILROAD CO.10 Barb. 621 (N.Y. S. Ct. 1851)By the Court, JOHNSON, J.The defendants excepted to that part of thecharge to the jury, in which they were instructed,that in cases of this kind it was competent forthem to go beyond the actual pecuniary damagessustained, and take into consideration, not onlythe loss of time and pecuniary expenses, but thebodily pain and suffering also, which the plaintiffhad undergone, and compensate him in damagestherefor. I confess I am yet to learn that this iscontrary to law. I am confident the rule has beengenerally understood, and uniformly administeredby our courts, as laid down by the learned justiceto the jury, in all cases of this kind, where oneperson has received personal injury and mutilation,by the careless or negligent act of another.The bodily pain and suffering is part and parcel ofthe actual injury, for which the injured party is asmuch entitled to compensation in damages, as forO’SHEA V. RIVERWAY TOWING

§ A. TYPES OF RECOVERABLE DAMAGES 131loss of time or the outlay of money. It is true thefooting for a precise and accurate estimate ofdamages may not be quite as sure and fixed inregard to it, as where a loss has been sustained intime or money; and yet the actual damage is noless substantial and real.... If persons or corporations engaged in thebusiness of the defendants, intrusted daily withthe lives and personal safety of hundreds ofindividuals, and using such an untamable power,may negligently cause serious injuries to theperson, and occasion intolerable bodily pain andsuffering, and only be chargeable with the loss oftime, at what it may be proved to be worth, andthe surgeon's and nurse's bill, it is quite time itshould be understood, that persons trustingthemselves to such protection may provide formore ample indemnity by special contract. Such arule would, in my judgment, be a serious generalevil and be productive of the most deplorableconsequences.... The defendants' counsel insists that alldamages recovered beyond the actual loss of timeand pecuniary expense, are strictly exemplarydamages, and that to authorize a plaintiff torecover damages of that character, he must showthe injury to have been willful and malicious onthe part of the defend-ants. But I think thatdamages for bodily pain and suffering arisingfrom physical injury, and connected with actualloss of time and money, are not exemplary, orpunitory in their character, in any strict or propersense of these terms. Exemplary or punitorydamages, or smart money, as they are often called,are given by way of punishment, for intentionalwrong, and to operate as an example to others....Here the damages are strictly compensatory forthe actual injury, of which the bodily pain andsuffering were an essential part....Questions and Notes1. Many proposals for tort reform (some ofwhich have been successful; see the case of Feinv. Permanente, infra § C) provide for a reductionor "cap" on pain and suffering damages, but allowa full recovery of "economic" losses. Is this animprovement to the tort system?2. In a recent article, Bovbjerg, Sloan andBlumstein proposed an alternative to essentiallyunfettered jury determination of pain andsuffering damages. In their view, "[d]eterminationof awards on an ad hoc and unpredictable basis,especially for `non-economic' losses, ... tends tosubvert the credibility of awards and hinder theefficient operation of the tort law's deterrencefunction." As an alternative, they suggest one ofusing one or more methods for calculatingawards:(1) a matrix of dollar values based onvictim age and injury severity; (2) ascenario-based system that employsdescriptions of prototypical injuries withcorresponding award values to be givento juries as guides to valuation; or (3) asystem of flexible ranges of award floorsand caps that reflect various categories ofinjury severity. Bovbjerg, Sloan andBlumstein, Valuing Life and Limb in Tort:Scheduling "Pain and Suffering", 83 Nw.U. L. Rev. 908 (1989). If you were amember of the legislature, would yousupport a measure to include one or moreof these methods in jury calculation ofawards? Why or why not?3. A recent symposium addressed the topic,Baselines and Counterfactuals in the Theory ofCompensatory Damages: What Do CompensatoryDamages Compensate?: Robert Cooter, HandRule Damages for Incompensable Losses, 40 SanDiego L. Rev. 1097 (2003); Adi Ayal, Can WeCompensate for Incompensable Harms? 40 SanDiego L. Rev. 1123 (2003); Richard Craswell,Instrumental Theories of Compensation: ASurvey, 40 San Diego L. Rev. 1135 (2003);Michael Moore, For What must We Pay?Causation and Counterfactual Baselines, 40 SanDiego L. Rev. 1181 (2003); Richard Fumerton,Moore, Causation, Counterfactuals, andResponsibility, 40 San Diego L. Rev. 1273 (2003);Stephen Perry, Harm, History, andCounterfactuals, 40 San Diego L. Rev. 1283(2003); John Goldberg, C.P., Rethinking Injuryand Proximate Cause, 40 San Diego L. Rev. 1315(2003); Leo Katz, What to Compensate? SomeSurprisingly Unappreciated Reasons Why theProblem Is So Hard, 40 San Diego L. Rev. 1345(2003); F.M. Kamm, Baselines andCompensation, 40 San Diego L. Rev. 1367(2003); Emily Sherwin, Compensation andRevenge, 40 San Diego L. Rev. 1387 (2003);Kenneth W. Simons, Compensation: Justice orRevenge, 40 San Diego L. Rev. 1415 (2003);Richard W. Wright, the Grounds and Extent ofLegal Responsibility, 40 San Diego L. Rev. 1425MORSE V. AUBURN & SYRACUSE RAILROAD CO.

132 3. DAMAGES(2003); C.J. Martin, Judicial Redistribution ofPunitive Damage Awards, 40 San Diego L. Rev.1649 (2003).SPADE v. LYNN & B.R. CO.168 Mass. 285, 47 N.E. 88 (1897)[Plaintiff was riding in defendant's train, lateat night, when two intoxicated passengers enteredher car. They were jostling one another, andplaintiff moved to avoid them. Then one of themquarreled with the conductor over the payment ofthe fare, and additional pushing and shovingresulted in one of the men colliding with theplaintiff. She testified that as the man "lurchedover on me; then it seemed as though I turned tosolid ice. My breath was cut right off. I could nothave spoken; I tried to speak, but I chilled so Ikept growing stiffer and stiffer, until I did notknow, I do not know when they got me off the car."She admitted at trial that she suffered neither painnor physical injury. The jury awarded a verdict,and the defendant appealed.]ALLEN, J.This case presents a question which has notheretofore been determined in thiscommonwealth, and in respect to which thedecisions elsewhere have not been uniform. It isthis: Whether, in an action to recover damages foran injury sustained through the negligence ofanother, there can be a recovery for a bodilyinjury caused by mere fright and mentaldisturbance. The jury were instructed that a personcannot recover for mere fright, fear, or mentaldistress, occasioned by the negligence of another,which does not result in bodily injury, but that,when the fright or fear or nervous shock producesa bodily injury, there may be a recovery for thatbodily injury, and for all the pain, mental orotherwise, which may arise out of that bodilyinjury. In Canning v. Williamstown, 1 Cush. 451, itwas held, in an action against a town to recoverdamages for an injury sustained by the plaintiff inconsequence of a defective bridge that he couldnot recover if he sustained no injury in his person,buy merely incurred risk and peril which causedfright and mental suffering. In Warren v. RailroadCo., 163 Mass. 484, 40 N.E. 895, the evidencetended to show that the defendant's train struckthe carriage of the plaintiff, thereby throwing himout upon the ground; and it was held to be aphysical injury to the person to be thrown out of awagon, or to be compelled to jump out, evenalthough the harm consists mainly of nervousshock. It was not, therefore, a case of mere frightand resulting nervous shock. The case calls for aconsideration of the real ground upon which theliability of nonliability of a defendant guilty ofnegligence in a case like the present depends. Theexemption from liability for mere fright, terror,alarm, or anxiety, does not rest on the assumptionthat these do not constitute an actual injury. Theydo in fact deprive one of the enjoyment and ofcomfort, cause real suffering, and to a greater orless extent, disqualify one for the time being fromdoing the duties of life. If these results flow froma wrongful or negligent act, a recovery thereforcannot be denied on the ground that the injury isfanciful and not real. Nor can it be maintained thatthese results may not be the direct and immediateconsequence of the negligence. Danger excitesalarm. Few people are wholly insensible to theemotions caused by imminent danger, thoughsome are less affected than others. It must also beadmitted that a timid or sensitive person maysuffer, not only in mind, but also in body, fromsuch a cause. Great emotion, may, and sometimesdoes, produce physical effects. The action of theheart, the circulation of the blood, the temperatureof the body, as well as the nerves and the appetite,may all be affected. A physical injury may bedirectly traceable to fright, and so may be causedby it. We cannot say, therefore, that suchconsequences may not flow proximately fromunintentional negligence; and, if compensation indamages may be recovered for a physical injuryso caused, it is hard, on principle, to say thereshould not also be a recovery for the mere mentalsuffering when not accompanied by anyperceptible physical effects. It would seem,therefore, that the real reason for refusingdamages sustained from mere fright must besomething different, and it probably rests on theground that in practice it is impossiblesatisfactorily to administer in the courts accordingto general rules. Courts will aim to make theserules as just as possible, bearing in mind that theyare to be of general application. But as the law is apractical science, having to do with the affairs oflife, any rule is unwise if, in its generalMORSE V. AUBURN AND SYRACUSE RAILROAD CO.

§ A. TYPES OF RECOVERABLE DAMAGES 133application, it will not, as a usual result, serve thepurposes of justice. A new rule cannot be madefor each case, and there must therefore be acertain generality in rules of law, which inparticular cases may fall to meet what would bedesirable if the single case were alone to beconsidered. Rules of law respecting the recoveryof damages are framed with reference to the justrights of both parties, - not merely what it mightbe right for an injured person to receive, to affordjust compensation for his injury, but also what it isjust to compel the other party to pay. One cannotalways look to others to make compensation forinjuries received. Many accidents occur, theconsequences of which the sufferer must bearalone. And, in determining the rules of law bywhich the right to recover compensation forunintended injury from other is to be governed,regard must chiefly be paid to such conditions asare usually found to exist. Not only thetransportation of passengers and the running oftrains, but the general conduct of business and ofthe ordinary affairs of life, must be done on theassumption that persons who are liable to beaffected thereby are not peculiarly sensitive, andare of ordinary physical and mental strength. If,for example, a traveler is sick or inform, delicatein health, specially nervous or emotional, liable tobe upset by slight causes, and therefore requiringprecautions which are not usual or practicable fortraveling in general, notice should be given so thatif reasonably practicable, arrangements may bemade accordingly, and extra care be observed. Butas a general rule a carrier of passengers is notbound to anticipate or to guard against aninjurious result which would only happen to aperson of peculiar sensitiveness. This limitation ofliability for injury of another description isintimated in Allsop v. Allsop, 5 Hurl & N. 534,539. One may be held bound to anticipate andguard against the probable consequences toordinary people, but to carry the rule of damagesfurther imposes an undue measure ofresponsibility upon those who are guilty only ofunintentional negligence. The general rulelimiting damages in such a case to the natural andprobable consequences of the acts done is of wideapplication, and has often been expressed andapplied. Lombard v. Lennow, 155 Mass. 70, 28N.E. 1125; White v. Dresser, 135 Mass. 150;Fillebrown v. Hoar, 124 Mass. 580; Derry v.Flitner, 118 Mass. 131; Railroad Co. v. Kellogg,94 U.S. 469. 475; Wyman v. Leavitt, 71 Me. 227;Ellis v. Cleveland, 55 Vt. 358; Phillips v.Dickerson, 85 Ill. 11; Jones v. Fields, 57 Iowa,317, 10 N.W. 747; Renner v. Canfield, 36 Minn.90, 30 N.W. 435; Lynch v. Knight, 9 H.L. Cas.577, 591, 595, 598; The Notting Hill, 9 Prob. Div.105; Hobbs v. Railway Co., L.R. 10 Q.B. 11, 122.The law of negligence, in its special application tocases of accidents, has received greatdevelopment in recent years. The number ofactions brought is very great. This should leadcourts well to consider the grounds on whichclaims for compensation properly rest, and thenecessary limitations of the right to recover. Weremain satisfied with the rule that there can be norecovery for fright, terror, alarm, anxiety, ordistress of mind, if these are unaccompanied bysome physical injury; and, if this rule is to stand,we think it should also be held that there can beno recovery for such physical injuries as may becaused solely by such mental disturbance, wherethere is no injury to the person from without. Thelogical vindication of this rule is that it isunreasonable to hold persons who are merelynegligent bound to anticipate and guard againstfright and the consequences of fright, and that thiswould open a wide door for unjust claims, whichcould not successfully be met. These views aresupported by the following decisions:Commissioners v. Coultas, 13 App. Cas. 222;Mitchell v. Railway Co. (N.Y. App; Dec. 1, 1896)45 N.E. 354; Ewing v. Railway Co., 147 Pa. St.40, 23 Atl. 340; Haile's Curator v. Railroad Co., 9C.C.A. 1345, 60 Fed. 557. In the following casesa different view was taken; Bell v. Railroad Co.,L.R. Ir. 26 Exch. 428; Purchell v. Railroad Co., 48Minn. 134, 50 N.W. 1034; Fitzpatrick v. RailwayCo., 12 U.C. Q.B. 645. See, also, BEVAN, NEG. 77et seq. It is hardly necessary to add that thisdecision does not reach those classes of actionswhere an intention to cause mental distress or tohurt the feelings is shown, or is reasonably to beinferred, as, for example, in cases of seduction,slander, malicious prosecution, or arrest, and someother. Nor do we include cases of acts done withgross carelessness or recklessness showing utterindifference to such consequences, when theymust have been in the actor's mind. Lombard v.Lennow and Fillebrown v. Hoar, already cited;Meagher v. Driscoll, 99 Mass. 281. In the presentcase no such considerations entered into therulings or were presented by the facts. The entrytherefore must be: Exceptions sustained.SPADE V. LYNN & B. R. CO.

134 3. DAMAGESJOHNSON v. STATE OF NEW YORK37 N.Y.2d 378, 334 N.E.2d 590 (1975)BREITEL, Chief Judge* * *Claimant's mother, Emma Johnson, had beena patient in the Hudson River State Hospital since1960. On August 6, 1970, another patient, alsonamed Emma Johnson, died. Later that day, thehospital sent a telegram addressed to NellieJohnson of Albany, claimant's aunt and the sisterof the living Emma Johnson. The telegram read:REGRET TO INFORM YOU OF DEATH OFEMMA JOHNSON PLEASE NOTIFYRELATIVES MAKE BURIALARRANGEMENTS HAVE UNDERTAKERCONTACT HOSPITAL BEFORE COMING FORBODY HOSPITAL WISHES TO STUDY ALLDEATHS FOR SCIENTIFIC REASONS PLEASEWIRE POST MORTEM CONSENT.- HUDSON RIVER STATE HOSPITALIn accordance with the instructions in thetelegram, claimant was notified of her mother'sdeath by her aunt. An undertaker was engaged; thebody of the deceased Emma Johnson was releasedby the hospital and taken to Albany that night. Awake was set for August 11, with burial the nextday. In the interim claimant incurred expenses inpreparing the body for the funeral, and innotifying other relatives of her mother's death. Onthe afternoon of the wake, claimant and her auntwent to the funeral home to view the body. Afterexamining the body, both claimant and her auntremarked that the mother's appearance hadchanged. Nellie Johnson also expressed doubt thatthe corpse was that of her sister Emma. Thereafterthe doubts built up, and upon returning thatevening for the wake, claimant, in a state ofextreme distress, examined the corpse moreclosely and verified that it was not that of hermother. At this point, claimant became "very, veryhysterical", and had to be helped from the funeralchapel.The hospital was called, and the mistakeconfirmed. Claimant's mother was alive and wellin another wing of the hospital. Later that eveningat the hospital, the deputy director, with theauthorization of the director, admitted the mistaketo claimant and her aunt. Upon the trial itappeared that the hospital had violated its ownprocedures and with gross carelessness had"pulled" the wrong patient record.After this incident, claimant did not work inher employment for more than 11 days. Shecomplained of "[r]ecurrent nightmares, terrifyingdreams of death, seeing the coffin ... difficulty inconcentrating, irritability, inability to function atwork properly, general tenseness and anxiety."Her psychiatrist testified that "[s]he appeared tobe somewhat depressed, tremulous. She seemed tobe under a considerable amount of pressure. Shecried easily when relating events that occurred. Ithough that she spoke rather rapidly and obviouslyperspiring." Both her psychiatrist and that of theState agreed that, as a result of the incident,claimant suffered "excessive anxiety", that is,anxiety neurosis. Her expert, as indicated, testifiedthat she showed objective manifestations of thatcondition.One to whom a duty of care is owed, it hasbeen held, may recover for harm sustained solelyas a result of an initial, negligently-causedpsychological trauma, but with ensuing psychicharm with residual physical manifestations(Battalla v. State of New York, 10 N.Y.2d 237,238-239, 219 N.Y.S.2d 34, 35, 176 N.E.2d 729;Ferrara v. Galluchio, 5 N.Y.2d 16, 21-22, 176N.Y.S.2d 996, 999-1000, 152 N.E.2d 249, 252; cf.RESTATEMENT, TORTS 2D, § 313, subd. (1); see,generally, Tobin v. Grossman, 24 N.Y.2d 609,613, 301 N.Y.S.2d 554, 556, 249 N.E.2d 419, 420;PROSSER, TORTS (4th ed.), § 54, pp. 330-333; 2HARPER AND JAMES, LAW OF TORTS, § 18.4, pp.1032-1034; Torts - Emotional Disturbances, Ann.,64 A.L.R.2d 100, 143, § 11 Et seq.). In theabsence of contemporaneous or consequentialphysical injury, courts have been reluctant topermit recovery for negligently causedpsychological trauma, with ensuing emotionalharm alone (see RESTATEMENT, TORTS 2D, §436A; PROSSER, TORTS (4th ed.), Op. cit., pp.328-330, and cases collected; 2 HARPER ANDJAMES, LAW OF TORTS, Op. cit., pp. 1031-1032,and cases collected; Torts - EmotionalDisturbances, Ann., 64 A.L.R.2d 100, 115, § 7; cf.Weicker v. Weicker, 22 N.Y.2d 8, 11, 290 N.Y.S.2d732, 733, 237 N.E.2d 876). The reasons for themore restrictive rule were best summarized byPROSSER (Op. cit., p. 329): "The temporaryJOHNSON V. STATE OF NEW YORK

§ A. TYPES OF RECOVERABLE DAMAGES 135emotion of fright, so far from serious that it doesno physical harm, is so evanescent a thing, soeasily counterfeited, and usually so trivial, that thecourts have been quite unwilling to protect theplaintiff against mere negligence, where theelements of extreme outrage and moral blamewhich have had such weight in the case of theintentional tort are lacking". Contemporaneous orconsequential physical harm, coupled with theinitial psychological trauma, was, however,thought to provide an index of reliabilityotherwise absent in a claim for psychologicaltrauma with only psychological consequences.There have developed, however, twoexceptions. The first is the minority rulepermitting recovery for emotional harm resultingfrom negligent transmission by a telegraphcompany of a message announcing death (seecases collected in RESTATEMENT, TORTS 2D, App.,§ 436A; PROSSER, Op. cit., p. 329; but seeWestern Union Tel. Co. v. Speight, 254 U.S. 17,18, 41 S. Ct. 11, 65 L. Ed. 104; Curtin v. WesternUnion Tel. Co., 13 App. Div. 253, 255-256, 42N.Y.S. 1109, 1110-1111 (majority rule denyingrecovery). The Federal rule does, however, permitrecovery where the psychological trauma resultsin physical illness, see Kaufman v. Western UnionTel. Co., 5 Cir., 224 F.2d 723, 731, cert. den. 350U.S. 947, 76 S. Ct. 321, 100 L. Ed. 825).The second exception permits recovery foremotional harm to a close relative resulting fromnegligent mishandling of a corpse (see PROSSER,Op. cit. pp. 329-330, and cases collected).Recovery in these cases has ostensibly beengrounded on a violation of the relative'squasi-property right in the body (see Darcy v.Presbyterian Hosp., 202 N.Y. 259, 262, 95 N.E.695, 696; but cf. Owens v. Liverpool Corp. (1939),1 KB 394, 400 (CA) (applying negligenceprinciples), disapproved in Hay or Bourhill v.Young (1943), AC 92, 110 (HL) (per LordWRIGHT), but applied in Behrens v. BertramMills Circus (1957), 2 QB 1, 28 (DEVLIN, J.)). Ithas been noted, however, that in this context sucha "property right" is little more than a fiction; inreality the personal feelings of the survivors arebeing protected (PROSSER, Op. cit., p. 59).In both the telegraph cases and the corpsemishandling cases, there exists "an especiallikelihood of genuine and serious mental distress,arising from the special circumstances, whichserves as a guarantee that the claim is notspurious" (p. 330). PROSSER notes that "[t]heremay perhaps be other such cases" (p. 330; seeNieman v. Upper Queens Med. Group, City Ct.,220 N.Y.S.2d 129, 130, in which plaintiff allegedemotional harm due to negligent misinformationby a laboratory that his sperm count indicatedsterility; and defendant's motion for judgment onthe pleadings was denied). The instant claimprovides an example of such a case.As the Appellate Division correctly found andthe State in truth concedes, the hospital wasnegligent in failing to ascertain the proper next ofkin when it mistakenly transmitted the deathnotice to claimant's aunt and through her, at itsbehest, to claimant. While for one to be held liablein negligence he need not foresee novel orextraordinary consequences, it is enough that hebe aware of the risk of danger. The consequentialfuneral expenditures and the serious psychologicalimpact on claimant of a false message informingher of the death of her mother, were all within the"orbit of the danger" and therefore within the"orbit of the duty" for the breach of which awrongdoer may be held liable (Palsgraf v. LongIs. R.R. Co., 248 N.Y. 339, 343, 162 N.E. 99,100). Thus, the hospital owed claimant a duty torefrain from such conduct, a duty breached whenit negligently sent the false message. The falsemessage and the events flowing from its receiptwere the proximate cause of claimant's emotionalharm. Hence, claimant is entitled to recover forthat harm, especially if supported by objectivemanifestations of that harm.Tobin v. Grossman (24 N.Y.2d 609, 301N.Y.S.2d 554, 249 N.E.2d 419, supra) is notrelevant. In the Tobin case, the court held that nocause of action lies for unintended harm sustainedby one, solely as a result of injuries inflicteddirectly upon another, regardless of therelationship and whether the one was aneyewitness to the incident which resulted in thedirect injuries (p. 611, 301 N.Y.S.2d pp. 554-555,249 N.E.2d pp. 419-420). In this case, however,the injury was inflicted by the hospital directly onclaimant by its negligent sending of a falsemessage announcing her mother's death. Claimantwas not indirectly harmed by injury caused toanother; she was not a mere eyewitness of orbystander to injury caused to another. Instead, shewas the one to whom a duty was directly owed bythe hospital, and the one who was directly injuredby the hospital's breach of that duty. Thus, therationale underlying the Tobin case, namely, thereal dangers of extending recovery for harm toothers than those directly involved, is inapplicableto the instant case. (Nor is Matter of Wolfe v.JOHNSON V. STATE OF NEW YORK

136 3. DAMAGESSibley, Lindsay & Curr Co., 36 N.Y.2d 505, 369N.Y.S.2d 637, 330 N.E.2d 603, relevant to the tortrationale or holding in this case. There recoverywas allowed solely on the elastic basis permittedby the Workmen's Compensation Law as appliedin the courts.)Moreover, not only justice but logic compelsthe further conclusion that if claimant was entitledto recover her pecuniary losses she was alsoentitled to recover for the emotional harm causedby the same tortious act. The recovery of thefuneral expenses stands only because a duty toclaimant was breached. Such a duty existing andsuch a breach of that duty occurring, she isentitled to recover the proven harmfulconsequences proximately caused by the breach.In the light of the Battalla and Ferrara cases(supra), and the reasoning upon which they werebased, recovery for emotional harm to onesubjected directly to the tortious act may not bedisallowed so long as the evidence is sufficient toshow causation and substantiality of the harmsuffered, together with a "guarantee ofgenuineness" to which the court referred in theFerrara case (5 N.Y.2d 16, 21, 176 N.Y.S.2d 996,999, 152 N.E.2d 249, 252, supra; see, also,Battalla v. State of New York, 10 N.Y.2d 237, 242,219 N.Y.S.2d 34, 38, 176 N.E.2d 729, 731,supra).Accordingly, the order of the AppellateDivision should be reversed, with costs, and thematter remitted to that court for a determination ofthe facts in accordance with CPLR 5613.JASEN, GABRIELLI, JONES, WACHTLER,FUCHSBERG and COOKE, JJ., concur.Order reversed, with costs, and case remittedto Appellate Division, Third Department, forfurther proceedings in accordance with theopinion herein.Questions and Notes1. In Lafferty v. Manhasset Medical CenterHospital, 54 N.Y.2d 277, 445 N.Y.S.2d 11, 429N.E.2d 789 (1981), the plaintiff brought suitagainst the hospital to recover for emotionaldistress and aggravation of a preexisting heartproblem. She suffered these upon witnessing anegligent transfusion of mismatched blood intoher mother-in-law and upon participating in theevents that occurred during the periodimmediately following the start of the transfusion.Would the court impose liability based uponJohnson v. State of New York?STEINHAUSER v. HERTZCORPORATION421 F.2d 1169 (2d Cir. 1970)FRIENDLY, Circuit JudgeOn September 4, 1964, plaintiff CynthiaSteinhauser, a New Jersey citizen then 14 yearsold, her mother and father were driving souththrough Essex County, N.Y. A northbound car,owned by defendant Hertz Corporation, aDelaware corporation authorized to do business inNew York, and operated by defendant Ponzini, acitizen of New York, crossed over a double yellowline in the highway into the southbound lane andstruck the Steinhauser car heavily on the left side.The occupants did not suffer any bodily injuries.The plaintiffs' evidence was that within a fewminutes after the accident Cynthia began tobehave in an unusual way. Her parents observedher to be "glassy-eyed," "upset," "highly agitated,""nervous" and "disturbed." When Ponzini cametoward the Steinhauser car, she jumped up anddown and made menacing gestures untilrestrained by her father. On the way home shecomplained of a headache and becameuncommunicative. In the following days thingswent steadily worse. Cynthia thought that she wasbeing attacked and that knives, guns and bulletswere coming through the windows. She washostile toward her parents and assaulted them;becoming depressed, she attempted suicide. Thefamily physician recommended hospitalization.After observation and treatment in three hospitals,with a final diagnosis of "schizophrenic reaction -acute - undifferentiated," she was released inDecember 1964 under the care of a psychiatrist,Dr. Royce, which continued until September1966. His diagnosis, both at the beginning and atthe end, was of a chronic schizophrenic reaction;he explained that by "chronic" he meant thatCynthia was not brought to him because of asudden onset of symptoms. She then entered theHospital of the University of Pennsylvania and,one month later, transferred to the Institute ofPennsylvania Hospital for long-term therapy.JOHNSON V. STATE OF NEW YORK

§ A. TYPES OF RECOVERABLE DAMAGES 137Discharged in January 1968, she has required thecare of a psychiatrist. The evidence was that theneed for this will continue, thatreinstitutionalization is likely, and that herprognosis is bad.As the recital makes evident, the importantissue was the existence of a causal relationshipbetween the rather slight accident and Cynthia'sundoubtedly serious ailment. 1 The testimony wasuncontradicted that prior to the accident she hadnever displayed such exaggerated symptoms asthereafter. However, she had fallen from a horseabout two years earlier and suffered what wasdiagnosed as a minor concussion; she was nothospitalized but missed a month of school. Theother evidence relied on by the defendants toshow prior psychiatric abnormality was derivedlargely from the history furnished, apparently inlarge part by Cynthia, at her admission to the firstof the three hospitals on September 20, 1964,which we set out in the margin.* * *We add a further word that may be ofimportance on a new trial. Although the fact thatCynthia had latent psychotic tendencies would notdefeat recovery if the accident was a precipitatingcause of schizophrenia, this may have asignificant bearing on the amount of damages.The defendants are entitled to explore theprobability that the child might have developedschizophrenia in any event. While the evidencedoes not demonstrate that Cynthia already had thedisease, it does suggest that she was a good1The fact that no physical harm was suffered as aresult of the accident does not affect plaintiff's right torecover. New York has abandoned the rule disallowingrecovery for mental disturbance in the absence of aphysical impact, see Battalla v. State, 10 N.Y.2d 237, 219N.Y.S.2d 34, 176 N.E.2d 729 (1961), and although somecourts deny recovery for mental disturbanceunaccompanied by physical injuries, see PROSSER, TORTS348-49 (3d ed. 1964); A.L.I. RESTATEMENT 2D TORTS436A, New York allows such recovery if the "mentalinjury [is] marked by definite physical symptoms, whichare capable of clear medical proof," Ferrara v. Galluchio,5 N.Y.2d 16, 176 N.Y.S.2d 996, 152 N.E.2d 249 (1958),quoting PROSSER, TORTS 212 (1st ed. 1941); see alsoBattalla v. State, supra, and "A.A." v. State, 43 Misc. 2d1004, 252 N.Y.S. 2d 800 (Ct. Cl. 1964) (awardingdamages where slight physical impact "aggravated andexacerbated that pre-existing condition" to produceschizophrenia).prospect. Judge Hiscock said in McCall, "it iseasily seen that the probability of later death fromexisting causes for which a defendant was notresponsible would probably be an importantelement in fixing damages, but it is not a defense."201 N.Y. at 224, 94 N.E. at 617. In Evans v. S.J.Groves & Sons Company, supra, we noted that ifa defendant "succeeds in establishing that theplaintiff's pre-existing condition was bound toworsen ... an appropriate discount should be madefor the damages that would have been sufferedeven in the absence of the defendant'snegligence." 315 F.2d at 347-348. See also thefamous case of Dillon v. Twin State Gas &Electric Co., 85 N.H. 449, 163 A. 111 (1932), and2 HARPER & JAMES, supra, at 1128-1131. It is noanswer that exact prediction of Cynthia's futureapart from the accident is difficult or evenimpossible. However taxing such a problem maybe for men who have devoted their lives topsychiatry, it is one for which a jury is ideallysuited.Reversed for a new trial.Questions and Notes1. Should it make any difference whether theemotional injury is one that is classified as a"mental illness"? Why or why not?2. Does it make sense to draw the linebetween compensable and noncompensableemotional injuries based on whether they areaccompanied by physical injury? If not, whereshould the line - if any - be drawn?3. Note that in the Spade case the judgedistinguished negligently caused emotional injuryfrom other types of compensable harm, such aslibel or slander (see Chapter Fourteen for adiscussion of these torts). If a newspaper hadprinted a story in which it incorrectly identifiedNellie Smith as the daughter of a mental patient,Nellie Smith might sue the newspaper for libel.Does it make a difference if the negligence is onthe part of a New York hospital, that sends atelegram to the daughter of the wrong Mrs.Johnson? Why does tort law generally permit onekind of emotional injury to be compensatedwithout proof of physical harm, but not another?4. The Johnson case is significant because thedefendants did no physical harm to anyone. InSTEINHAUSER V. HERTZ CORPORATION

138 3. DAMAGESmany of the so-called "negligent infliction ofemotional distress" cases (such as Dillon v. Legg,considered infra, § B.3.), the defendant hasinflicted physical injury upon Party X, and someperson related to Party X is seeking recovery ofemotional damages. One could call those damages"parasitic" because they depend upon theexistence of an otherwise valid tort claim. In thiscase, however, there is no physical injury. Doesthat make the case for recovery stronger orweaker?5. A well-known case recognizing a claim fornegligently inflicted emotional distress, evenwhere no physical injury was caused (to anyone,not just to plaintiff), is Molien v. KaiserFoundation Hospitals, 27 Cal. 3d 916, 616 P.2d813, 167 Cal. Rptr. 831 (1980). In Molien anemployee of the defendant hospital negligentlyexamined the plaintiff and erroneously told herthat she had contracted syphilis. If the hospitalshould be forced to compensate the plaintiff forher emotional distress, what theory provides thebest justification?4. Punitive DamagesMORAN v. JOHNS-MANVILLE SALESCORPORATION691 F.2d 811 (6th Cir. 1982)John W. PECK, Senior Circuit JudgeIn this diversity action, Johns-Manville SalesCorp. ("JM") appeals from a judgment for theplaintiff, and from the trial court's denial of JM'smotions for judgment notwithstanding the verdict("JNOV"), for a new trial, and for a remittitur. Onappeal, JM attacks the sufficiency of the evidenceat trial to support the jury's award of $350,000 incompensatory and $500,000 in punitive damages.JM also offers policy arguments against anyaward of punitive damages in this case.Edward Moran, the plaintiff's deceased,worked for over thirty years installing insulation.During that time he worked with asbestosinsulation products made by JM's corporatepredecessors. Moran died of lung cancer at agesixty-one. His executrix prosecuted this actionagainst various manufacturers of asbestosproducts under a theory of strict liability in tort.* * *JM next argues that the evidence at trial didnot support an award of punitive damages. JMstates that Ohio law requires that "actual malice" -which JM apparently equates with ill-will - beestablished before punitive damages may beawarded. This is not the law of Ohio as stated bythe Ohio Supreme Court or as construed by thisCourt. The Ohio Supreme Court recentlysummarized the "malice" justifying punitivedamages thus:Evidence of actual malice ... must bepresent before a jury question of punitivedamages is raised; actual malice may takeeither the form of the defendant's expressill will, hatred or spirit of revenge, or theform of reckless, willful or wantonbehavior which can be inferred fromsurrounding circumstances. Detling v.Chockley, 70 Ohio St.2d 134, 137-38(436 N.E.2d 208) (1982) (per curiam).Accord, Drayton v. Jiffee Chem. Corp.,591 F.2d 352, 365-66 (6th Cir. 1978);Gillham v. Admiral Corp., 523 F.2d 102,108 (6th Cir. 1975) (applying Ohio law).In the product liability action of Leichtamer v.American Motors Corp., 67 Ohio St. 2d 456, 456at syllabus 2, 424 N.E.2d 568 (1981), the OhioSupreme Court held that "[p]unitive damages maybe awarded where a manufacturer's testing andexamination procedures are so inadequate as tomanifest a flagrant indifference to the probabilitythat the product might expose consumers tounreasonable risks of harm." By analogy toLeichtamer we hold that a jury question ofpunitive damages was established if a reasonablejuror could have concluded that JM's failure toplace warning labels on insulation products before1964 manifested such a "flagrant indifference" tousers' risks of harm.To rebut Moran's evidence of flagrantindifference to risks to insulation workers, JMargues that the record discloses that the Selikoffstudy of 1964 1 was the first to document health1Selikoff, Churg & Hammond, The Occurrence ofSTEINHAUSER V. HERTZ CORPORATION

§ A. TYPES OF RECOVERABLE DAMAGES 139risks to users, rather than producers, of asbestosproducts. This assertion is belied by the summaryof prior knowledge given in the Selikoff studyitself:Ellman in 1934 mentioned a case ofasbestosis in an insulation worker. Othercases were subsequently reported, and inthe annual report of the Chief Inspectorof Factories for the year 1956, "lagging,"or insulation work, was recognized ashazardous. Similarly, Hervieux in Francedrew attention in 1962 to the dangers ofsuch end product use as insulation work.The only large scale survey of asbestosinsulation workers was undertaken in theU.S. by Fleischer et al. in 1945. Theyfound only three cases of asbestosis andconcluded that "asbestos pipe covering ofnaval vessels is a relatively safeoperation." Unfortunately, 95 per cent ofthose examined by them had worked forless than 10 years at the trade and, as weshall see, evaluation of the risk ofinsulation workers limited to study ofmen with relatively short durations ofexposure may be misleading. Selikoff at140 (footnotes omitted).In judging whether a manufacturer'sindifference to consumers' risks is "flagrant" webelieve a jury may weigh the gravity of the harmsthreatened against the onerousness of themanufacturer's correctives. Here the harmsthreatened were chronic debilitating diseases; thecorrective was the placement of warning labels oninsulation products so that insulation workersmight try to protect themselves if they so chose.Under the limited standard of review we mayemploy, we cannot disturb the jury's award ofpunitive damages in this case.* * *II. Policy Arguments Against PunitiveDamages AwardJM offers numerous reasons why an award ofpunitive damages would be inappropriate in thiscase. The first is that the goals of punishment anddeterrence would not be served by awardingAsbestosis Among Insulation Workers in the United States,132 ANN. N.Y. ACAD. SCI. 139 (1965)."punitive" damages. JM argues that "there is noconduct to deter because Johns-Manville modifiedits products in the 1960's." In Ohio, however, thedeterrence sought by punitive damages is general,not specific: the offending party is set up "as anexample to others that they might be deterredfrom similar conduct." Detling, supra, 70 Ohio St.2d at 136, 436 N.E.2d 208 (emphasis added); seealso 30 OJUR 3D, Damages, § 148 (citing cases).Whether a defendant's particular course ofconduct has ceased is irrelevant to theaccomplishment of this broader purpose.In Drayton v. Jiffee Chem. Corp., 591 F.2d352, 365-66 (6th Cir. 1978), we affirmed a districtcourt's refusal to award punitive damages in aproduct liability case. The trial court had notedboth improving industry practices, and a changein corporate ownership, as weighing against suchan award. See 395 F. Supp. 1081, 1097-98 (N.D.Ohio 1975). The trial court's action may bequestioned in light of later Ohio precedent;moreover, our own affirmance, by a divided court,was lukewarm. See 591 F.2d at 365-66, 371-74.Drayton was a case tried to the bench, and it waskey to this Court's affirmance that "the trialjudge's decision not to award punitive damageswas based upon considerations of both law andfact." Id. at 365. We also noted the trial judge'sfactual characterization of the plaintiffs'arguments for punitive damages as "more shrillthan persuasive." Id. at 366. Finally, we invokedRule 52(a), FED. R. CIV. PRO., a pellucidindication that a factual determination was beingleft undisturbed. See 591 F.2d at 366. Nothing wesaid in Drayton requires us to disallow punitivedamages in this case.JM contends that no culpable party would bepunished by an award of "punitive" damages here.It points out that the persons responsible for thebusiness decisions giving rise to JM's liabilityhave long ago left JM's employ. We noted inGillham that, under Ohio law, a corporation maybe "subjected to punitive damages for the tortiousacts of its agents within the scope of theiremployment in any case where a natural personacting for himself would be liable for punitivedamages." 523 F.2d at 108. JM would have usoverlook the liability of the legal person. Wedecline to adopt the boundless principle that legalentities may escape liability for punitive damagesif the "culpable" persons are no longer agents ofthe corporation. It is agency at the time of thetortious act, not at the time of litigation, thatdetermines the corporation's liability. JM's ruleMORAN V. JOHNS-MANVILLE SALES CORPORATION

140 3. DAMAGESwould make the corporate veil an impenetrableshield against punitive damages; JM points tonothing in Ohio law from which such a shieldcould be fashioned.We are not dissuaded from allowing punitivedamages because this cost will ultimately beborne by "innocent" shareholders. Punitivedamage awards are a risk that accompaniesinvestment. Shimman v. Frank, 625 F.2d 80 (6thCir. 1980) did not establish a contrary rule. In thatcase we reduced, but did not eliminate, an awardof punitive damages against a union; we notedthat "the ones who will end up paying for thepunitive damages award are the union members.For this reason, courts should be slow to awardhuge punitive damages awards against unions."Id. at 103 (fn. omitted). The case of a unionmember and shareholder are, however, not whollyanalogous. Individual workers only seldom canchoose which union to belong to; a group ofworkers cannot change bargaining agentsovernight. Investors may typically place theirmoney where they choose and withdraw it whenthey wish. The prospect of ultimate liability forpunitive damages may encourage investors toentrust their capital to the most responsibleconcerns.JM urges with particular force that punitivedamages should not be awarded against acompany that faces a multitude of product liabilityactions. If punitive damages are awarded in manyof these actions, JM argues that it will not bepunished, but destroyed. We have read JudgeFriendly's interesting essay on such a prospect,and its implications for the law, in Roginsky v.Richardson-Merrell, Inc., 378 F.2d 832, 838-41(2d Cir. 1967). However eloquent the essay, it isconfessed dictum. Judge Friendly noted that "theNew York cases afford no basis for our predictingthat the [New York] Court of Appeals would adopta rule disallowing punitive damages in a case suchas this, and the Erie doctrine wisely prevents ourengaging in such extensive law-making on localtort liability, a subject which the people of NewYork have entrusted to their legislature and,within limits, to their own courts, not to us." Id. at841. So it is here. The relief sought by JM may bemore properly granted by the state or federallegislature than by this Court. Such legislativerelief is even now being sought byasbestos-product manufacturers. See 68 A.B.A.J.398 (April 1982); NEW YORK TIMES, Aug. 10,1982, at 34.* * *Questions and Notes1. The asbestos cases generated hugelitigation costs on both sides. Unfortunately, ofthe entire amount spent on the asbestos litigation,only 17ȼ of every dollar actually went to thevictims. The balance was chewed up in litigation,insurance and administrative expenses. Asbestoshas been replaced by tobacco as the new object ofscrutiny. See Panel Discussion, The TobaccoSettlement: Practical Implications and the Futureof the Tort Law, 67 Miss. L.J. 847 (1998).2. Commentators have noted the uniquecharacteristics of asbestos and the difficulties ofapplying traditional tort principles: George L.Priest, The Cumulative Sources of the AsbestosLitigation Phenomenon, 31 Pepp. L. Rev. 261(2003); Katie Nester, Asbestosis-inflictedPlaintiffs and Fear of Cancer Claims, 23 St. LouisU. Pub. L. Rev. 367 (2004); Mark H. Reeves,Makes Sense to Me: How Moderate, TargetedFederal Tort Reform Legislation Could Solve theNation's Asbestos Litigation Crisis, 56 Vand. L.Rev. 1949 (2003).GRIMSHAW v. FORD MOTOR CO.119 Cal. App. 3d 757, 174 Cal. Rptr. 348(1981)TAMURA, Acting Presiding JusticeA 1972 Ford Pinto hatchback automobileunexpectedly stalled on a freeway, erupting intoflames when it was rear ended by a car proceedingin the same direction. Mrs. Lilly Gray, the driverof the Pinto, suffered fatal burns and 13-year-oldRichard Grimshaw, a passenger in the Pinto,suffered severe and permanently disfiguring burnson his face and entire body. Grimshaw and theheirs of Mrs. Gray (Grays) sued Ford MotorCompany and others. Following a six-month jurytrial, verdicts were returned in favor of plaintiffsagainst Ford Motor Company. Grimshaw wasawarded $2,516,000 compensatory damages and$125 million punitive damages; the Grays wereMORAN V. JOHNS-MANVILLE SALES CORPORATION

§ A. TYPES OF RECOVERABLE DAMAGES 141awarded $559,680 in compensatory damages. OnFord's motion for a new trial, Grimshaw wasrequired to remit all but $32 million of thepunitive award as a condition of denial of themotion.Ford appeals from the judgment and from anorder denying its motion for a judgmentnotwithstanding the verdict as to punitivedamages. Grimshaw appeals from the ordergranting the conditional new trial and from theamended judgment entered pursuant to the order.The Grays have cross-appealed from the judgmentand from an order denying leave to amend theircomplaint to seek punitive damages.Ford assails the judgment as a whole,assigning a multitude of errors and irregularities,including misconduct of counsel, but the primarythrust of its appeal is directed against the punitivedamage award. Ford contends that the punitiveaward was statutorily unauthorized andconstitutionally invalid. In addition, it maintainsthat the evidence was insufficient to support afinding of malice or corporate responsibility formalice. Grimshaw's cross-appeal challenges thevalidity of the new trial order and the conditionalreduction of the punitive damage award. TheGrays' cross-appeal goes to the validity of anorder denying them leave to amend their wrongfuldeath complaint to seek punitive damages.FactsSince sufficiency of the evidence is in issueonly regarding the punitive damage award, wemake no attempt to review the evidence bearingon all of the litigated issues. Subject toamplification when we deal with specific issues,we shall set out the basic facts pertinent to theseappeals in accordance with established principlesof appellate review: We will view the evidence inthe light most favorable to the parties prevailingbelow, resolving all conflicts in their favor, andindulging all reasonable inferences favorable tothem. (Aceves v. Regal Pale Brewing Co., 24 Cal.3d 502, 507, 156 Cal. Rptr. 41, 595 P.2d 619;Nestle v. City of Santa Monica, 6 Cal. 3d 920,925, 101 Cal. Rptr. 568, 496 P.2d 480.)The Accident:In November 1971, the Grays purchased anew 1972 Pinto hatchback manufactured by Fordin October 1971. The Grays had trouble with thecar from the outset. During the first few months ofownership, they had to return the car to the dealerfor repairs a number of times. Their car problemsincluded excessive gas and oil consumption, downshifting of the automatic transmission, lack ofpower, and occasional stalling. It was later learnedthat the stalling and excessive fuel consumptionwere caused by a heavy carburetor float.On May 28, 1972, Mrs. Gray, accompaniedby 13-year-old Richard Grimshaw, set out in thePinto from Anaheim for Barstow to meet Mr.Gray. The Pinto was then six months old and hadbeen driven approximately 3,000 miles. Mrs. Graystopped in San Bernardino for gasoline, got backonto the freeway (Interstate 15) and proceededtoward her destination at 60-65 miles per hour. Asshe approached the Route 30 off-ramp wheretraffic was congested, she moved from the outerfast lane to the middle lane of the freeway. Shortlyafter this lane change, the Pinto suddenly stalledand coasted to a halt in the middle lane. It waslater established that the carburetor float hadbecome so saturated with gasoline that it suddenlysank, opening the float chamber and causing theengine to flood and stall. A car travelingimmediately behind the Pinto was able to swerveand pass it but the driver of a 1962 Ford Galaxiewas unable to avoid colliding with the Pinto. TheGalaxie had been traveling from 50 to 55 milesper hour but before the impact had been braked toa speed of from 28 to 37 miles per hour.At the moment of impact, the Pinto caughtfire and its interior was engulfed in flames.According to plaintiffs' expert, the impact of theGalaxie had driven the Pinto's gas tank forwardand caused it to be punctured by the flange or oneof the bolts on the differential housing so that fuelsprayed from the punctured tank and entered thepassenger compartment through gaps resultingfrom the separation of the rear wheel well sectionsfrom the floor pan. By the time the Pinto came torest after the collision, both occupants hadsustained serious burns. When they emerged fromthe vehicle, their clothing was almost completelyburned off. Mrs. Gray died a few days later ofcongestive heart failure as a result of the burns.Grimshaw managed to survive but only throughheroic medical measures. He has undergonenumerous and extensive surgeries and skin graftsand must undergo additional surgeries over thenext 10 years. He lost portions of several fingerson his left hand and portions of his left ear, whilehis face required many skin grafts from variousportions of his body. Because Ford does notcontest the amount of compensatory damagesawarded to Grimshaw and the Grays, no purposeGRIMSHAW V. FORD MOTOR CO.

142 3. DAMAGESwould be served by further description of theinjuries suffered by Grimshaw or the damagessustained by the Grays.Design of the Pinto Fuel System:In 1968, Ford began designing a newsubcompact automobile which ultimately becamethe Pinto. Mr. Iacocco [sic], then a Ford VicePresident, conceived the project and was itsmoving force. Ford's objective was to build a carat or below 2,000 pounds to sell for no more than$2,000.Ordinarily marketing surveys and preliminaryengineering studies precede the styling of a newautomobile line. Pinto, however, was a rushproject, so that styling preceded engineering anddictated engineering design to a greater degreethan usual. Among the engineering decisionsdictated by styling was the placement of the fueltank. It was then the preferred practice in Europeand Japan to locate the gas tank over the rear axlein subcompacts because a small vehicle has less"crush space" between the rear axle and thebumper than larger cars. The Pinto's styling,however, required the tank to be placed behind therear axle leaving only 9 or 10 inches of "crushspace" far less than in any other Americanautomobile or Ford overseas subcompact. Inaddition, the Pinto was designed so that itsbumper was little more than a chrome strip, lesssubstantial than the bumper of any other Americancar produced then or later. The Pinto's rearstructure also lacked reinforcing members knownas "hat sections" (2 longitudinal side members)and horizontal cross-members running betweenthem such as were found in cars of larger unitizedconstruction and in all automobiles produced byFord's overseas operations. The absence of thereinforcing members rendered the Pinto less crushresistant than other vehicles. Finally, thedifferential housing selected for the Pinto had anexposed flange and a line of exposed bolt heads.These protrusions were sufficient to puncture agas tank driven forward against the differentialupon rear impact.Crash Tests:During the development of the Pinto,prototypes were built and tested. Some were"mechanical prototypes" which duplicatedmechanical features of the design but not itsappearance while others, referred to as"engineering prototypes," were true duplicates ofthe design car. These prototypes as well as twoproduction Pintos were crash tested by Ford todetermine, among other things, the integrity of thefuel system in rear-end accidents. Ford alsoconducted the tests to see if the Pinto as designedwould meet a proposed federal regulationrequiring all automobiles manufactured in 1972 tobe able to withstand a 20-mile-per-hour fixedbarrier impact without significant fuel spillageand all automobiles manufactured after January 1,1973, to withstand a 30-mile-per-hour fixedbarrier impact without significant fuel spillage.The crash tests revealed that the Pinto's fuelsystem as designed could not meet the20-mile-per-hour proposed standard. Mechanicalprototypes struck from the rear with a movingbarrier at 21-miles-per-hour caused the fuel tankto be driven forward and to be punctured, causingfuel leakage in excess of the standard prescribedby the proposed regulation. A production Pintocrash tested at 21-miles-per-hour into a fixedbarrier caused the fuel neck to be torn from thegas tank and the tank to be punctured by a bolthead on the differential housing. In at least onetest, spilled fuel entered the driver's compartmentthrough gaps resulting from the separation of theseams joining the real wheel wells to the floorpan. The seam separation was occasioned by thelack of reinforcement in the rear structure andinsufficient welds of the wheel wells to the floorpan.Tests conducted by Ford on other vehicles,including modified or reinforced mechanical Pintoprototypes, proved safe at speeds at which thePinto failed. Where rubber bladders had beeninstalled in the tank, crash tests into fixed barriersat 21-miles-per-hour withstood leakage frompunctures in the gas tank. Vehicles with fuel tanksinstalled above rather than behind the rear axlepassed the fuel system integrity test at31-miles-per-hour fixed barrier. A Pinto with twolongitudinal hat sections added to firm up the rearstructure passed a 20-mile-per-hour rear impactfixed barrier test with no fuel leakage.The Cost To Remedy Design Deficiencies:When a prototype failed the fuel systemintegrity test, the standard of care for engineers inthe industry was to redesign and retest it. Thevulnerability of the production Pinto's fuel tank atspeeds of 20 and 30-miles-per-hour fixed barriertests could have been remedied by inexpensive"fixes," but Ford produced and sold the Pinto tothe public without doing anything to remedy thedefects. Design changes that would haveenhanced the integrity of the fuel tank system atGRIMSHAW V. FORD MOTOR CO.

§ A. TYPES OF RECOVERABLE DAMAGES 143relatively little cost per car included thefollowing: Longitudinal side members and crossmembers at $2.40 and $1.80, respectively; asingle shock absorbent "flak suit" to protect thetank at $4; a tank within a tank and placement ofthe tank over the axle at $5.08 to $5.79; a nylonbladder within the tank at $5.25 to $8; placementof the tank over the axle surrounded with aprotective barrier at a cost of $9.95 per car;substitution of a rear axle with a smoothdifferential housing at a cost of $2.10; impositionof a protective shield between the differentialhousing and the tank at $2.35; improvement andreenforcement of the bumper at $2.60; addition ofeight inches of crush space a cost of $6.40.Equipping the car with a reinforced rear structure,smooth axle, improved bumper and additionalcrush space at a total cost of $15.30 would havemade the fuel tank safe in a 34 to38-mile-per-hour rear end collision by a vehiclethe size of the Ford Galaxie. If, in addition to theforegoing, a bladder or tank within a tank wereused or if the tank were protected with a shield, itwould have been safe in a 40 to 45-mile-per-hourrear impact. If the tank had been located over therear axle, it would have been safe in a rear impactat 50 miles per hour or more.Management's Decision To Go ForwardWith Knowledge Of Defects:The idea for the Pinto, as has been noted, wasconceived by Mr. Iacocco, then Executive VicePresident of Ford. The feasibility study wasconducted under the supervision of Mr. RobertAlexander, Vice President of Car Engineering.Ford's Product Planning Committee, whosemembers included Mr. Iacocca, Mr. RobertAlexander, and Mr. Harold MacDonald, Ford'sGroup Vice President of Car Engineering,approved the Pinto's concept and made thedecision to go forward with the project. Duringthe course of the project, regular product reviewmeetings were held which were chaired by Mr.MacDonald and attended by Mr. Alexander. Asthe project approached actual production, theengineers responsible for the components of theproject "signed off" to their immediate supervisorswho in turn "signed off" to their superiors and soon up the chain of command until the entireproject was approved for public release by VicePresidents Alexander and MacDonald andultimately by Mr. Iacocco. The Pinto crash testsresults had been forwarded up the chain ofcommand to the ultimate decision-makers andwere known to the Ford officials who decided togo forward with production.Harley Copp, a former Ford engineer andexecutive in charge of the crash testing program,testified that the highest level of Ford'smanagement made the decision to go forwardwith the production of the Pinto, knowing that thegas tank was vulnerable to puncture and rupture atlow rear impact speeds creating a significant riskof death or injury from fire and knowing that"fixes" were feasible at nominal cost. He testifiedthat management's decision was based on the costsavings which would inure from omitting ordelaying the "fixes."Mr. Copp's testimony concerningmanagement's awareness of the crash tests resultsand the vulnerability of the Pinto fuel system wascorroborated by other evidence. At an April 1971product review meeting chaired by Mr.MacDonald, those present received and discusseda report (Exhibit 125) prepared by Ford engineerspertaining to the financial impact of a proposedfederal standard on fuel system integrity and thecost savings which would accrue from deferringeven minimal "fixes." 1 The report refers to crash1 The “Fuel System Integrity Program Financial Review”report included the following:Product AssumptionsTo meet 20 mph movable barrier requirements in1973, fuel filler neck modifications to providebreakaway capability and minor upgrading ofstructure are required.To meet 30 mph movable barrier requirements,original fuel system integrity programs assumptionsprovided for relocation of the fuel tanks to over theaxle on all car lines beginning in 1974. Major tearupof rear and center floor pans, added rear endstructure, and new fuel tanks were believed necessaryfor all car lines. These engineering assumptions weredeveloped from limited vehicle crash test data anddesign and development work.Since these original assumptions, seven vehicle crashtests have been run which now indicate fuel tankrelocation is probably not required. Although stillbased heavily on judgement, Chassis Engineeringcurrently estimates that the 30 mph movable barrierrequirement is achievable with a reduced level of rearend tearup.In addition to added rear-end structure, ChassisEngineering believes that either rubber “flak” suits(similar to a tire carcass), or alternatively, a bladderlining within the fuel tank may be required on all carswith flat fuel tanks located under the luggagecompartment floor (all cars, exceptFord/Mercury/Lincoln and Torino/Montego stationGRIMSHAW V. FORD MOTOR CO.

144 3. DAMAGEStests of the integrity of the fuel system of Fordvehicles and design changes needed to meetanticipated federal standards. Also in evidencewas a September 23, 1970, report (Exhibit 124)by Ford's "Chassis Design Office" concerning aprogram "to establish a corporate [Ford] positionand reply to the government" on the proposedfederal fuel system integrity standard whichincluded zero fuel spillage at 20 miles per hourfixed barrier crash by January 1, 1972, and 30miles per hour by January 1, 1973. The reportstates in part: "The 20 and 30 mph rear fixedbarrier crashes will probably require repackagingthe fuel tanks in a protected area such as above therear axle. This is based on moving barrier crashtests of a Chevelle and a Ford at 30 mph and otherFord products at 20 mph. () Currently there areno plans for forward models to repackage the fueltanks. Tests must be conducted to prove thatrepackaged tanks will live without significantlystrengthening rear structure for added protection."The report also notes that the Pinto was the"[s]mallest car line with most difficulty inachieving compliance." It is reasonable to inferthat the report was prepared for and known toFord officials in policy-making positions.The fact that two of the crash tests were run atwagons). Although further crash tests may show thatadded structure alone is adequate to meet the 30 mphmovable barrier requirement, provisions for flak suitsor bladders must be provided. The design cost of asingle flak suit, located between the fuel tank and theaxle, is currently estimated at $(4) per vehicle. If twoflak suits (second located at the rear of the fuel tank),or a bladder are required, the design cost is estimatedat $(8) per vehicle. Based on these estimates, it isrecommended that the addition of the flaksuit/bladder be delayed on all affected cars until1976. However, package provision for both the flaksuits and the bladder should be included when otherchanges are made to incorporate 30 mph movablebarrier capability. A design cost savings of $10.9million (1974-1975) can be realized by this delay.Although a design cost provision of $(8) per affectedvehicle has been made in 1976 program levels tocover contingencies, it is hoped that cost reductionscan be achieved, or the need for any flak suit orbladder eliminated after further engineeringdevelopment.Current assumptions indicate that fuel systemintegrity modifications and 1973 bumperimprovement requirements are nearly independent.However, bumper requirements for 1974 and beyondmay require additional rear end structure which couldbenefit fuel system integrity programs.the request of the Ford Chassis and VehicleEngineering Department for the specific purposeof demonstrating the advisability of moving thefuel tank over the axle as a possible "fix" furthercorroborated Mr. Copp's testimony thatmanagement knew the results of the crash tests.Mr. Kennedy, who succeeded Mr. Copp as theengineer in charge of Ford's crash testingprogram, admitted that the test results had beenforwarded up the chain of command to hissuperiors.Finally, Mr. Copp testified to conversations inlate 1968 or early 1969 with the chief assistantresearch engineer in charge of cost-weightevaluation of the Pinto, and to a later conversationwith the chief chassis engineer who was then incharge of crash testing the early prototype. Inthese conversations, both men expressed concernabout the integrity of the Pinto's fuel system andcomplained about management's unwillingness todeviate from the design if the change would costmoney.* * *VIPunitive DamagesFord contends that it was entitled to ajudgment notwithstanding the verdict on the issueof punitive damages on two grounds: First,punitive damages are statutorily andconstitutionally impermissible in a design defectcase; second, there was no evidentiary support fora finding of malice or of corporate responsibilityfor malice. In any event, Ford maintains that thepunitive damage award must be reversed becauseof erroneous instructions and excessiveness of theaward.GRIMSHAW V. FORD MOTOR CO.

§ A. TYPES OF RECOVERABLE DAMAGES 145(1) "Malice" Under Civil Code Section3294:The concept of punitive damages is rooted inthe English common law and is a settled principleof the common law of this country. (Owen,Punitive Damages in Products LiabilityLitigation, 74 MICH. L. REV. 1258, 1262-1263(hereafter Owen); Mallor & Roberts, PunitiveDamages, Towards A Principled Approach, 31HASTINGS L.J. 639, 642-643 (hereafter Mallor &Roberts); Note, Exemplary Damages in the Lawof Torts, 70 HARV. L. REV. 517, 518-520.) Thedoctrine was a part of the common law of thisstate long before the Civil Code was adopted.(Mendelsohn v. Anaheim Lighter Co., 40 Cal. 657,661; Nightingale v. Scannell, 18 Cal. 315,325-326; Dorsey v. Manlove, 14 Cal. 553,555-556; Wilson v. Middleton, 2 Cal. 54.) Whenour laws were codified in 1872, the doctrine wasincorporated in Civil Code section 3294, which atthe time of trial read: "In an action for the breachof an obligation not arising from contract, wherethe defendant has been guilty of oppression, fraud,or malice, express or implied, the plaintiff, inaddition to the actual damages, may recoverdamages for the sake of example and by way ofpunishing the defendant." 22Section 3294 was amended in 1980 (Stats. 1980, ch.1242, § 1, p. ---, eff. Jan. 1, 1981) to read:(a) In an action for the breach of an obligation notarising from contract, where the defendant has beenguilty of oppression, fraud, or malice, the plaintiff, inaddition to the actual damages, may recover damagesfor the sake of example and by way of punishing thedefendant.(b) An employer shall not be liable for damagespursuant to subdivision (a), based upon acts of anemployee of the employer, unless the employer hadadvance knowledge of the unfitness of the employeeand employed him or her with a conscious disregardof the rights or safety of others or authorized orratified the wrongful conduct for which the damagesare awarded or was personally guilty of oppression,fraud, or malice. With respect to a corporateemployer, the advance knowledge, ratification, or actof oppression, fraud, or malice must be on the part ofan officer, director, or managing agent of thecorporation.(c) As used in this section, the following definitionsshall apply:(1) "Malice" means conduct which is intended by thedefendant to cause injury to the plaintiff or conductFord argues that "malice" as used in section3294 and as interpreted by our Supreme Court inDavis v. Hearst, 160 Cal. 143, 116 P. 530, requiresanimus malus or evil motive an intention to injurethe person harmed and that the term is thereforeconceptually incompatible with an unintentionaltort such as the manufacture and marketing of adefectively designed product. This contention runscounter to our decisional law. As this courtrecently noted, numerous California cases afterDavis v. Hearst, supra, have interpreted the term"malice" as used in section 3294 to include, notonly a malicious intention to injure the specificperson harmed, but conduct evincing "a consciousdisregard of the probability that the actor'sconduct will result in injury to others." (Dawes v.Superior Court, 111 Cal. App. 3d 82, 88, 168 Cal.Rptr. 319, hg. den. (Dec. 17, 1980); e.g., Taylor v.Superior Court, 24 Cal. 3d 890, 895-896, 157 Cal.Rptr. 693, 598 P.2d 854; Neal v. Farmers Ins.Exchange, 21 Cal. 3d 910, 922, 148 Cal. Rptr.389, 582 P.2d 980; Schroeder v. Auto DriveawayCo., 11 Cal. 3d 908, 922-923, 114 Cal. Rptr. 622,523 P.2d 662; Silberg v. California Life Ins. Co.,11 Cal. 3d 452, 462, 113 Cal. Rptr. 711, 521 P.2d1103; Donnelly v. Southern Pacific Co., 18 Cal.2d 863, 869-870, 118 P.2d 465; Nolin v. NationalConvenience Stores, Inc., 95 Cal. App. 3d 279,285-286, 157 Cal. Rptr. 32; Seimon v. SouthernPac. Transportation Co., 67 Cal. App. 3d 600,607, 136 Cal. Rptr. 787; G.D. Searle & Co. v.Superior Court, 49 Cal. App. 3d 22, 30-32, 122Cal. Rptr. 218; Pease v. Beech Aircraft Corp., 38Cal. App. 3d 450, 465, 113 Cal. Rptr. 416; Barthv. B.F. Goodrich, 265 Cal. App. 2d 228, 240-241,71 Cal. Rptr. 306; Toole v. Richardson-MerrellInc., 251 Cal. App. 2d 689, 713-714, 60 Cal. Rptr.398.) Pease, Barth and Toole were strict productsliability cases.* * *which is carried on by the defendant with a consciousdisregard of the rights or safety of others.(2) "Oppression" means subjecting a person to crueland unjust hardship in conscious disregard of thatperson's rights.(3) "Fraud" means an intentional misrepresentation,deceit, or concealment of a material fact known to thedefendant with the intention on the part of thedefendant of thereby depriving a person of property orlegal rights or otherwise causing injury.GRIMSHAW V. FORD MOTOR CO.

146 3. DAMAGESIn Taylor v. Superior Court, supra, 24 Cal. 3d890, 157 Cal. Rptr. 693, 598 P.2d 854, our highcourt's most recent pronouncement on the subjectof punitive damages, the court observed that theavailability of punitive damages has not beenlimited to cases in which there is an actual intentto harm plaintiff or others. (Id., at p. 895, 157 Cal.Rptr. 693, 598 P.2d 854.) The court concurredwith the Searle (G.D. Searle & Co. v. SuperiorCourt, supra, 49 Cal. App. 3d 22, 122 Cal. Rptr.218) court's suggestion that conscious disregard ofthe safety of others is an appropriate descriptionof the animus malus required by Civil Codesection 3294, adding: "In order to justify an awardof punitive damages on this basis, the plaintiffmust establish that the defendant was aware of theprobable dangerous consequences of his conduct,and that he wilfully and deliberately failed toavoid those consequences." (Id., 24 Cal. 3d at pp.895-896, 157 Cal. Rptr. 693, 598 P.2d 854.)Ford attempts to minimize the precedentialforce of the foregoing decisions on the groundthey failed to address the position now advancedby Ford that intent to harm a particular person orpersons is required because that was what thelawmakers had in mind in 1872 when theyadopted Civil Code section 3294. Ford argues thatthe Legislature was thinking in terms oftraditional intentional torts, such as, libel, slander,assault and battery, malicious prosecution,trespass, etc., and could not have intended thestatute to be applied to a products liability casearising out of a design defect in a mass producedautomobile because neither strict products liabilitynor mass produced automobiles were known in1872.A like argument was rejected in Li v. YellowCab Co., 13 Cal. 3d 804, 119 Cal. Rptr. 858, 532P.2d 1226, where the court held that in enactingsection 1714 as part of the 1872 Civil Code, theLegislature did not intend to prevent judicialdevelopment of the common law concepts ofnegligence and contributory negligence. As thecourt noted, the code itself provides that insofar asits provisions are substantially the same as thecommon law, they should be construed ascontinuations thereof and not as new enactments(Civ. Code §§ 4, 5), and thus the code has beenimbued "with admirable flexibility from thestandpoint of adaptation to changingcircumstances and conditions." (Id., at p. 816, 119Cal. Rptr. 858, 532 P.2d 1226.) In light of thecommon law heritage of the principle embodied inCivil Code section 3294, 3 it must be construed asa "continuation" of the common law and liberallyapplied "with a view to effect its objects and topromote justice." (Civ. Code §§ 4, 5.) Toparaphrase Li v. Yellow Cab Co., supra, 13 Cal. 3d804, 119 Cal. Rptr. 858, 532 P.2d 1226, theapplicable rules of construction "permit if notrequire that section (3294) be interpreted so as togive dynamic expression to the fundamentalprecepts which it summarizes." (Id., at p. 822, 119Cal. Rptr. 858, 532 P.2d 1226.)(3) Sufficiency of the Evidence to Supportthe Finding of Malice and CorporateResponsibility:Ford contends that its motion for judgmentnotwithstanding the verdict should have beengranted because the evidence was insufficient tosupport a finding of malice or corporateresponsibility for such malice. The record fails tosupport the contention."The rules circumscribing the power of a trialjudge to grant a motion for judgmentnotwithstanding the verdict are well established.The power to grant such a motion is identical tothe power to grant a directed verdict; the judgecannot weigh the evidence or assess the credibilityof witnesses; if the evidence is conflicting or ifseveral reasonable inferences may be drawn, themotion should be denied; the motion may begranted `only if it appears from the evidence,viewed in the light most favorable to the partysecuring the verdict, that there is no substantialevidence to support the verdict.'" (Clemmer v.Hartford Insurance Co. (1978) 22 Cal. 3d 865,877-878, 151 Cal. Rptr. 285, 587 P.2d 1098;Brandenburg v. Pac. Gas & Elec. Co. (1946) 28Cal. 2d 282, 284, 169 P.2d 909, quoting Hauter v.Zogarts (1975) 14 Cal. 3d 104, 110-111, 120 Cal.Rptr. 681, 534 P.2d 377, 74 A.L.R.3d 1282.)"(Castro v. State of California, 114 Cal. App. 3d503, 512, 170 Cal. Rptr. 734.) There was ample3The doctrine was expressed in Dorsey v. Manlove,supra, 14 Cal. 553, as follows: "But where the trespass iscommitted from wanton or malicious motives, or areckless disregard of the rights of others, or undercircumstances of great hardship or oppression, the rule ofcompensation is not adhered to, and the measure andamount of damages are matters for the jury alone. In thesecases the jury are not confined to the loss or injurysustained, but may go further and award punitive orexemplary damages, as a punishment for the act, or as awarning to others." (Id., at p. 556.)GRIMSHAW V. FORD MOTOR CO.

§ A. TYPES OF RECOVERABLE DAMAGES 147evidence to support a finding of malice and Ford'sresponsibility for malice.Through the results of the crash tests Fordknew that the Pinto's fuel tank and rear structurewould expose consumers to serious injury ordeath in a 20 to 30 mile-per-hour collision. Therewas evidence that Ford could have corrected thehazardous design defects at minimal cost butdecided to defer correction of the shortcomings byengaging in a cost-benefit analysis balancinghuman lives and limbs against corporate profits.Ford's institutional mentality was shown to be oneof callous indifference to public safety. There wassubstantial evidence that Ford's conductconstituted "conscious disregard" of theprobability of injury to members of the consumingpublic.Ford's argument that there can be no liabilityfor punitive damages because there was noevidence of corporate ratification of maliciousmisconduct is equally without merit. Californiafollows the RESTATEMENT rule that punitivedamages can be awarded against a principalbecause of an action of an agent if, but only if,"`(a) the principal authorized the doing and themanner of the act, or (b) the agent was unfit andthe principal was reckless in employing him, or(c) the agent was employed in a managerialcapacity and was acting in the scope ofemployment, or (d) the principal or a managerialagent of the principal ratified or approved the act.'(REST. 2D TORTS (Tent. Draft No. 19, 1973) §909.)" (Egan v. Mutual of Omaha Ins. Co., supra,24 Cal. 3d 809, 822, 157 Cal. Rptr. 482, 598 P.2d452; Merlo v. Standard Life & Acc. Ins. Co, 59Cal. App. 3d 5, 18, 130 Cal. Rptr. 416.) Thepresent case comes within one or both of thecategories described in subdivisions (c) and (d).There is substantial evidence thatmanagement was aware of the crash tests showingthe vulnerability of the Pinto's fuel tank to ruptureat low speed rear impacts with consequentsignificant risk of injury or death of the occupantsby fire. There was testimony from several sourcesthat the test results were forwarded up the chain ofcommand; Vice President Robert Alexanderadmitted to Mr. Copp that he was aware of the testresults; Vice President Harold MacDonald, whochaired the product review meetings, was presentat one of those meetings at which a report on thecrash tests was considered and a decision wasmade to defer corrective action; and it may beinferred that Mr. Alexander, a regular attender ofthe product review meetings, was also present atthat meeting. MacDonald and Alexander weremanifestly managerial employees possessing thediscretion to make "decisions that will ultimatelydetermine corporate policy." (Egan v. Mutual ofOmaha Ins. Co., supra, 24 Cal. 3d 809, 823, 157Cal. Rptr. 482, 598 P.2d 452.) There was alsoevidence that Harold Johnson, an Assistant ChiefEngineer of Research, and Mr. Max Jurosek,Chief Chassis Engineer, were aware of the resultsof the crash tests and the defects in the Pinto's fueltank system. Ford contends those two individualsdid not occupy managerial positions because Mr.Copp testified that they admitted awareness of thedefects but told him they were powerless tochange the rear-end design of the Pinto. It may beinferred from the testimony, however, that the twoengineers had approached management aboutredesigning the Pinto or that, being aware ofmanagement's attitude, they decided to donothing. In either case the decision not to takecorrective action was made by persons exercisingmanagerial authority. Whether an employee actsin a "managerial capacity" does not necessarilydepend on his "level" in the corporate hierarchy.(Id., at p. 822, 157 Cal. Rptr. 482, 598 P.2d 452.)As the Egan court said: "Defendant should not beallowed to insulate itself from liability by givingan employee a nonmanagerial title and relegatingto him crucial policy decisions." (Id., at p. 823,157 Cal. Rptr. 482, 598 P.2d 452, quotingconcurring and dissenting opinion in Merlo v.Standard Life & Acc. Ins. Co., supra, 59 Cal. App.3d at p. 25, 130 Cal. Rptr. 416.)While much of the evidence was necessarilycircumstantial, there was substantial evidencefrom which the jury could reasonably find thatFord's management decided to proceed with theproduction of the Pinto with knowledge of testresults revealing design defects which renderedthe fuel tank extremely vulnerable on rear impactat low speeds and endangered the safety and livesof the occupants. Such conduct constitutescorporate malice. (See Toole v.Richardson-Merrell, Inc., supra, 251 Cal. App. 2d689, 713, 60 Cal. Rptr. 398.)* * *Nor was the reduced award excessive takinginto account defendant's wealth and the size of thecompensatory award. Ford's net worth was 7.7billion dollars and its income after taxes for 1976was over 983 million dollars. The punitive awardwas approximately .005% of Ford's net worth andapproximately .03% of its 1976 net income. TheGRIMSHAW V. FORD MOTOR CO.

148 3. DAMAGESratio of the punitive damages to compensatorydamages was approximately 1.4 to one.Significantly, Ford does not quarrel with theamount of the compensatory award to Grimshaw.Nor was the size of the award excessive inlight of its deterrent purpose. An award which isso small that it can be simply written off as a partof the cost of doing business would have nodeterrent effect. An award which affects thecompany's pricing of its product and therebyaffects its competitive advantage would serve as adeterrent. (See Neal v. Farmers Ins. Exchange,supra, 21 Cal. 3d 910, 929, fn. 14, 148 Cal. Rptr.389, 582 P.2d 980.) The award in question was farfrom excessive as a deterrent against futurewrongful conduct by Ford and others.DispositionIn Richard Grimshaw v. Ford MotorCompany, the judgment, the conditional new trialorder, and the order denying Ford's motion forjudgment notwithstanding the verdict on the issueof punitive damages are affirmed.Questions and Notes1. In an internal Ford memorandum, Fordengineers estimated the benefits and costs ofinstalling rubber bladders into the gas tanks asfollows: Benefits: 180 burn deaths, 180 seriousburn injuries, and 2,100 burned vehicles avoided.Valued at $200,000, $67,000, and $700respectively, the total came to $49.5 million.Costs: 11 million cars and 1.5 million light trucks,@ $11 per installation, totalling $137 million. Onthe basis of this calculation, Ford decided not toinstall the rubber bladders. Were they wrong?2. Some states, like Washington, do not allowthe award of punitive damages except where somespecial statute (like an antitrust statute allowingtreble damages) authorizes it. Maki v. AluminumBuilding Products, 73 Wash. 2d 23, 436 P.2d 186(1968).3. Note that in footnote 2 the court sets outthe statutory requirements to establish acorporation's liability for punitive damages foracts of its employees. These are tests to determinewhether it can fairly be said that it was thecorporation rather than the individual alone whocommitted the acts leading to the imposition ofpunitive damages.4. One problem in the award of punitivedamages, raised in cases like this one, is howcourts can award consistent punitive damageawards where the same act (manufacturing theFord Pinto or the Dalkon Shield) gives rise tomultiple separate claims. See Owen, Problems onAssessing Punitive Damages AgainstManufacturers of Defective Products, 49 U. CHI.L. REV. 1 (1982).5. The United States Supreme Court haslimited the ability of states to impose punitivedamages where the 14th amendment guarantee ofdue process is not observed. For example, inExxon Shipping Co. v. Baker, 128 S.Ct. 2605(2008) the Supreme Court struck down an awardof $2.5 billion in punitive damages arising fromthe grounding of the Valdez in Prince WilliamSound in Alaska.5. Attorneys FeesKuenzel, The Attorney's Fee: Why Not aCost of Litigation?49 IOWA L. REV. 75, 80-81 (1963)* * *The proposal of awarding attorney's fees ascosts is not new. It is usually referred to as the"English rule" as it has existed there at least since1275. Why it was not incorporated into our ownsystem of costs is subject to speculation. Aspreviously stated, we generally recognize thatcosts are recoverable and follow the judgment,and yet, in most instances attorney's fees,generally the main expense of litigation, are notrecoverable.Several ideas seem inherent in the historicalexplanation of why the "English rule" failed todevelop in the United States. One initial problemfacing a new government must be the creation of awillingness in its citizenry to submit to the systemdesigned and established for the resolution of theirdisputes. At this stage of development, concernGRIMSHAW V. FORD MOTOR CO.

§ A. TYPES OF RECOVERABLE DAMAGES 149over points of justice (such as seeing a party madewhole through complete compensation) is lessimportant than encouraging persons into theestablished system. At this stage deterrents tosubmission are not appropriate.It also seems that at the time our judicialsystem was established there was a wish tomaintain a system of laws and procedures inwhich every man would be able to representhimself adequately before the courts....The naïveté that accompanies advocatingretention of the present cost structure on the basisof these reasons would seem to merit littlecomment. The idea that one must encouragelitigation seems to have been discarded long agoin light of the constantly repeated pronouncementof the courts that the present public policy is toencourage settlement and compromise rather thanlitigation. While the wish that law and itsprocedures remain sufficiently uncomplicated sothat every man can represent himself may be devoutlydesired, it would seem to overlook not only"an obvious truth" but also the demands ofcontemporary society.Questions and Notes1. Should the "English rule" be adopted fortorts litigation? Why or why not?2. For a review of the latest proposals to shiftfrom the American rule to some form of "loserpays," as proposed by the 1994 Republican"Contract with America," see Edward F. Sherman,From "Loser Pays" to Modified Offer of JudgmentRules: Reconciling Incentives to Settle withAccess to Justice, 76 Tex. L. Rev. 1863 (1998).§ B. Related Parties: Who ElseIs Entitled to Compensation?1. Wrongful DeathMORAGNE v. STATES MARINELINES398 U.S. 375 (1970)Mr. Justice HARLAN delivered the opinionof the CourtWe brought this case here to consider whetherThe Harrisburg, 119 U.S. 199, 7 S. Ct. 140, 30 L.Ed. 358, in which this Court held in 1886 thatmaritime law does not afford a cause of action forwrongful death, should any longer be regarded asacceptable law.The complaint sets forth that EdwardMoragne, a longshoreman, was killed whileworking aboard the vessel Palmetto State innavigable waters within the State of Florida.Petitioner, as his widow and representative of hisestate, brought this suit in a state court againstrespondent States Marine Lines, Inc., the owner ofthe Vessel, to recover damages for wrongful deathand for the pain and suffering experienced by thedecedent prior to his death. The claims werepredicated upon both negligence and theunseaworthiness of the vessel.* * *Our analysis of the history of thecommon-law rule indicates that it was based on aparticular set of factors that had, when TheHarrisburg was decided, long since been throwninto discard even in England, and that had neverexisted in this country at all. Further, regardless ofthe viability of the rule in 1886 as applied toAmerican land-based affairs, it is difficult todiscern an adequate reason for its extension toadmiralty, a system of law then alreadydifferentiated in many respects from the commonlaw.One would expect, upon an inquiry into thesources of the common-law rule, to find a clearand compelling justification for what seems astriking departure from the result dictated byelementary principles in the law of remedies.Where existing law imposes a primary duty,violations of which are compensable if they causeinjury, nothing in ordinary notions of justicesuggests that a violation should be nonactionablesimply because it was serious enough to causedeath. On the contrary, that rule has beenMORAGNE V. STATES MARINE LINES

150 3. DAMAGEScriticized ever since its inception, and described insuch terms as "barbarous." E.g., Osborn v. Gilliett,L.R. 8 Ex. 88, 94 (1873) (LORD BRAMWELL,dissenting); F. POLLOCK, LAW OF TORTS 55(Landon ed. 1951); 3 W. HOLDSWORTH, HISTORYOF ENGLISH LAW 676-677 (3d ed. 1927). Becausethe primary duty already exists, the decisionwhether to allow recovery for violations causingdeath is entirely a remedial matter. It is true thatthe harms to be assuaged are not identical in thetwo cases: in the case of mere injury, the personphysically harmed is made whole for his harm,while in the case of death, those closest to him -usually spouse and children - seek to recover fortheir total loss of one on whom they depended.This difference, however, even when coupled withthe practical difficulties of defining the class ofbeneficiaries who may recover for death, does notseem to account for the law's refusal to recognizea wrongful killing as an actionable tort. Oneexpects, therefore, to find a persuasive,independent justification for this apparent legalanomaly.Legal historians have concluded that the solesubstantial basis for the rule at common law is afeature of the early English law that did notsurvive into this century - the felony-mergerdoctrine. See POLLOCK, supra, at 52-57;Holdsworth, The Origin of the Rule in Baker v.Bolton, 32 L.Q. REV. 431 (1916). According tothis doctrine, the common law did not allow civilrecovery for an act that constituted both a tort anda felony. The tort was treated as less importantthan the offense against the Crown, and wasmerged into, or pre-empted by, the felony. Smith v.Sykes, 1 Freem. 224, 89 Eng. Rep. 160 (K.B.1677); Higgins v. Butcher, Yel. 89, 80 Eng. Rep.61 (K.B. 1606). The doctrine found practicaljustification in the fact that the punishment for thefelony was the death of the felon and theforfeiture of his property to the Crown; thus, afterthe crime had been punished, nothing remained ofthe felon or his property on which to base a civilaction. Since all intentional or negligent homicidewas felonious, there could be no civil suit forwrongful death.The first explicit statement of thecommon-law rule against recovery for wrongfuldeath came in the opinion of Lord Ellenborough,sitting at nisi prius, in Baker v. Bolton, 1 Camp.493, 170 Eng. Rep. 1033 (1808). That opinion didnot cite authority, or give supporting reasoning, orrefer to the felony-merger doctrine in announcingthat "[i]n a Civil court, the death of a human beingcould not be complained of as an injury." Ibid.Nor had the felony-merger doctrine seeminglybeen cited as the basis for the denial of recoveryin any of the other reported wrongful-death casessince the earliest ones, in the 17th century. E.g.,Smith v. Sykes, supra; Higgins v. Butcher, supra.However, it seems clear from those first cases thatthe rule of Baker v. Bolton did derive from thefelony-merger doctrine, and that there was noother ground on which it might be supported evenat the time of its inception. The House of Lords in1916 confirmed this historical derivation, and heldthat although the felony-merger doctrine was nolonger part of the law, the rule against recoveryfor wrongful death should continue except asmodified by statute. Admiralty Commissioners v.S.S. Amerika, (1917) A.C. 38. Lord Parker'sopinion acknowledged that the rule was"anomalous ... to the scientific jurist," butconcluded that because it had once foundjustification in the doctrine that "the trespass wasdrowned in the felony," it should continue as arule "explicable on historical grounds" even afterthe disappearance of that justification. Id., at 44,50; see 3 W. HOLDSWORTH, HISTORY OF ENGLISHLAW 676-677 (3d ed. 1927). Lord Sumner agreed,relying in part on the fact that this Court hadadopted the English rule in Brame [Insurance Co.v. Brame, 95 U.S. 754 (1878)]. Althoughconceding the force of Lord Bramwell's dissent inOsborn v. Gillett, L.R. 8 Ex. 88, 93 (1873),against the rule, Lord Parker stated that it was not"any part of the functions of this House toconsider what rules ought to prevail in a logicaland scientific system of jurisprudence," and thusthat he was bound simply to follow the pastdecisions. (1917) A.C., at 42-43. 11The decision in S.S. Amerika was placed also on analternative ground, which is independently sufficient. Inthat case, which arose from a collision between a RoyalNavy submarine and a private vessel, the Crown sought torecover from the owners of the private vessel the pensionspayable to the families of navy sailors who died in thecollision. The first ground given for rejecting the claimwas that the damages sought were too remote to beprotected by tort law, because the pensions were voluntarypayments and because they were not a measure of "thefuture services of which the Admiralty had beendeprived." Id., at 42, 50-51. Similar alternative reasoningwas given in Brame, which involved a similar situation. 95U.S., at 758-759, 24 L. Ed. 580. Thus, in neither case wasthe enunciation of the rule against recovery for wrongfulMORAGNE V. STATES MARINE LINES

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 151The historical justification marshaled for therule in England never existed in this country. Inlimited instances American law did adopt avestige of the felony-merger doctrine, to the effectthat a civil action was delayed until after thecriminal trial. However, in this country the felonypunishment did not include forfeiture of property;therefore, there was nothing, even in those limitedinstances, to bar a subsequent civil suit. E.g.,Grosso v. Delaware, Lackawanna & West. R. Co.,50 N.J.L. 317, 319-320, 13 A. 233, 234 (1888);Hyatt v. Adams, 16 Mich. 180, 185-188 (1867);see W. PROSSER, LAW OF TORTS 8, 920-924 (3ded. 1964). Nevertheless, despite some early casesin which the rule was rejected as "incapable ofvindication," e.g., Sullivan v. Union Pac. R. Co.,23 Fed. Cas. pp. 368, 371 (No. 13,599) (C.C. Neb.1874); Shields v. Yonge, 15 Ga. 349 (1854); cf.Cross v. Guthery, 2 Root 90, 92 (Conn. 1794),American courts generally adopted the Englishrule as the common law of this country as well.Throughout the period of this adoption,culminating in this Court's decision in Brame, thecourts failed to produce any satisfactoryjustification for applying the rule in this country.Some courts explained that their holdingswere prompted by an asserted difficulty incomputation of damages for wrongful death or bya "repugnance ... to setting a price upon humanlife," E.g., Connecticut Mut. Life Ins. Co. v. NewYork & N.H.R. Co., 25 Conn. 265, 272-273(1856); Hyatt v. Adams, supra, 16 Mich. at 191.However, other courts have recognized thatcalculation of the loss sustained by dependents orby the estate of the deceased, which is requiredunder most present wrongful-death statutes, seeSmith, Wrongful Death Damages in NorthCarolina, 44 N.C.L. REV. 402, 405, 406, nn.17, 18(1966), does not present difficulties moreinsurmountable than assessment of damages formany nonfatal personal injuries. See Hollyday v.The David Reeves, 12 Fed. Cas. pp. 386, 388 (No.6,625) (D.C. Md. 1879); Green v. Hudson RiverR. Co., 28 Barb. 9, 17-18 (N.Y. 1858).It was suggested by some courts andcommentators that the prohibition of nonstatutorywrongful-death actions derived support from theancient common-law rule that a personal cause ofaction in tort did not survive the death of itsdeath necessary to the result.possessor, e.g., Eden v. Lexington & Frankfort R.Co., 53 Ky. 204, 206 (1853); and the decision inBaker v. Bolton itself may have been influencedby this principle. Holdsworth, The Origin of theRule in Baker v. Bolton, 32 L.Q. REV. 431, 435(1916). However, it is now universally recognizedthat because this principle pertains only to thevictim's own personal claims, such as for pain andsuffering, it has no bearing on the questionwhether a dependent should be permitted torecover for the injury he suffers from the victim'sdeath. See ibid; POLLOCK supra, at 53; Winfield,Death as Affecting Liability in Tort, 29 COL. L.REV. 239-250, 253 (1929).The most likely reason that the English rulewas adopted in this country without muchquestion is simply that it had the blessing of age.That was the thrust of this Court's opinion inBrame, as well as many of the lower courtopinions. E.g., Grosso v. Delaware, Lackawanna& West. R. Co., supra. Such nearly automaticadoption seems at odds with the general principle,widely accepted during the early years of ourNation, that while "[o]ur ancestors brought withthem [the] general principles [of the common law]and claimed it as their birthright; ... they broughtwith them and adopted only that portion whichwas applicable to their situation." Van Ness v.Pacard, 2 Pet. 137, 144, 7 L. Ed. 374 (1829)(STORY, J.); The Lottawanna, 21 Wall. 558,571-574, 22 L. Ed. 654 (1875); see R. POUND,THE FORMATIVE ERA OF AMERICAN LAW 93-97(1938); H. HART & A. SACKS, THE LEGALPROCESS 450 (tent. ed. 1958). The Americancourts never made the inquiry whether thisparticular English rule, bitterly criticized inEngland, "was applicable to their situation," and itis difficult to imagine on what basis they mighthave concluded that it was.Further, even after the decision in Brame, it isnot apparent why the Court in The Harrisburgconcluded that there should not be a different rulefor admiralty from that applied at common law.Maritime law had always, in this country as inEngland, been a thing apart from the common law.It was, to a large extent, administered by differentcourts; it owed a much greater debt to the civillaw; 2 and, from its focus on a particular subject2The Court in The Harrisburg acknowledged that, atleast according to the courts of France, the civil law didallow recovery for the injury suffered by dependents of aperson killed. It noted, however, that the Louisiana courtsMORAGNE V. STATES MARINE LINES

152 3. DAMAGESmatter, it developed general principles unknownto the common law. These principles included aspecial solicitude for the welfare of those menwho undertook to venture upon hazardous andunpredictable sea voyages. See generally G.GILMORE & C. BLACK, THE LAW OF ADMIRALTY1-11, 253 (1957); P. EDELMAN, MARITIME INJURYAND DEATH 1 (1960). These factors suggest thatthere might have been no anomaly in adoption ofa different rule to govern maritime relations, andthat the common-law rule, criticized as unjust inits own domain, might wisely have been rejectedas incompatible with the law of the sea. This wasthe conclusion reached by Chief Justice Chase,prior to The Harrisburg, sitting on circuit in TheSea Gull, 21 Fed. Cas. p. 909 (No. 12,578) (C.C.Md. 1865). He there remarked thatThere are cases, indeed, in which ithas been held that in a suit at law, noredress can be had by the survivingrepresentative for injuries occasioned bythe death of one through the wrong ofanother; but these are all common-lawcases, and the common law has itspeculiar rules in relation to this subject,traceable to the feudal system and itsforfeitures ... and certainly it betterbecomes the humane and liberal characterof proceedings in admiralty to give thanto withhold the remedy, when notrequired to withhold it by established andinflexible rules." Id., at 910.Numerous other federal maritime cases, onsimilar reasoning, had reached the same result.E.g., The Columbia, 27 F. 704 (D.C.S.D.N.Y.1886); The Manhasset, 18 F. 918 (D.C.E.D. Va.1884); The E.B. Ward, Jr., 17 F. 456 (C.C.E.D. La.1883); The Garland, 5 F. 924 (D.C.E.D. Mich.1881); Holmes v. O.& C.R. Co., 5 F. 75 (D.C. Or.1880); The Towanda, 24 Fed. Cas. p. 74 (No.14,109) (C.C.E.D. Pa. 1877); Plummer v. Webb,19 Fed. Cas. p. 894 (No. 11,234) (D.C. Maine1825); Hollyday v. The David Reeves, 12 Fed.took a different view of the civil law, and that Englishmaritime law did not seem to differ in this regard fromEnglish common law. 119 U.S., at 205, 212-213, 7 S. Ct.,at 142, 146. See generally Grigsby v. Coast MarineService, 412 F.2d 1011, 1023-1029 (C.A. 5th Cir. 1969); 1E. BENEDICT, LAW OF AMERICAN ADMIRALTY 2 (6th ed.Knauth 1940); 4 id., at 358.Cas. p. 386 (No. 6,625) (D.C. Md. 1879). Despitethe tenor of these cases, some decided afterBrame, the Court in The Harrisburg concludedthat "the admiralty judges in the United States didnot rely for their jurisdiction on any rule of themaritime law different from that of the commonlaw, but (only) on their opinion that the rule of theEnglish common law was not founded in reason,and had not become firmly established in thejurisprudence of this country." 119 U.S., at 208, 7S. Ct. at 144. Without discussing anyconsiderations that might support a different rulefor admiralty, the Court held that maritime lawmust be identical in this respect to the commonlaw.IIWe need not, however, pronounce a verdicton whether The Harrisburg, when decided, was acorrect extrapolation of the principles ofdecisional law then in existence. A developmentof major significance has intervened, making clearthat the rule against recovery for wrongful death issharply out of keeping with the policies of modernAmerican maritime law. This development is thewholesale abandonment of the rule in most of thearea where it once held sway, quite evidentlyprompted by the same sense of the rule's injusticethat generated so much criticism of its originalpromulgation.To some extent this rejection has beenjudicial. The English House of Lords in 1937emasculated the rule without expressly overrulingit. Rose v. Ford, (1937) A.C. 826. Lord Atkinremarked about the decision in S.S. Amerika that"[t]he reasons given, whether historical orotherwise, may seem unsatisfactory," and that "ifthe rule is really based on the relevant death beingdue to felony, it should long ago have beenrelegated to a museum." At any rate, he saw "noreason for extending the illogical doctrine ... toany case where it does not clearly apply." Id.,A.C., at 833, 834. Lord Atkin concluded that,while the doctrine barred recognition of a claim inthe dependents for the wrongful death of a person,it did not bar recognition of a common-law claimin the decedent himself for "loss of expectation oflife" - a claim that vested in the person in theinterval between the injury and death, andthereupon passed, with the aid of a survivalstatute, to the representative of his estate. Heexpressed no doubt that the claim was "capable ofMORAGNE V. STATES MARINE LINES

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 153being estimated in terms of money: and that thecalculation should be made." Id., at 834. 3 Thus,except that the measure of damages might differ,the representative was allowed to recover onbehalf of the heirs what they could not recover intheir own names.Much earlier, however, the legislatures bothhere and in England began to evidence unanimousdisapproval of the rule against recovery forwrongful death. The first statute partiallyabrogating the rule was Lord Campbell's Act, 9 &10 Vict., c. 93 (1846), which granted recovery tothe families of persons killed by tortious conduct,"although the Death shall have been caused undersuch Circumstances as amount in Law toFelony." 4In the United States, every State today hasenacted a wrongful-death statute. See Smith,supra, 44 N.C. L. REV. 402. The Congress hascreated actions for wrongful deaths of railroademployees, Federal Employers' Liability Act, 45U.S.C. §§ 51-59; of merchant seamen, Jones Act,46 U.S.C. § 688; and of persons on the high seas,Death on the High Seas Act, 46 U.S.C. § 761,762. 5 Congress has also, in the Federal Tort3Lord Wright, concurring, stated: "In one sense it istrue that no money can be compensation for life or theenjoyment of life, and in that sense it is impossible to fixcompensation for the shortening of life. But it is the bestthe law can do. It would be paradoxical if the law refusedto give any compensation at all because none could beadequate." (1937) A.C., at 848.4It has been suggested that one reason thecommon-law rule was tolerated in England as long as itwas may have been that the relatives of persons killed bywrongful acts often were able to exact compensation fromthe wrongdoer by threatening to bring a "criminal appeal."The criminal appeal was a criminal proceeding brought bya private person, and was for many years more commonthan indictment as a means of punishing homicide.Though a successful appeal would not produce a monetaryrecovery, the threat of one served as an informal substitutefor a civil suit for damages. Over the years, indictmentbecame more common, and the criminal appeal wasabolished by statute in 1819. 59 Geo. 3, c. 46. SeeHoldsworth, The Origin of the Rule in Baker v. Bolton, 32L.Q. REV. 431, 435 (1916); Admiralty Commissioners v. S.S. Amerika, (1917) A.C., at 58-59.Claims Act, 28 U.S.C. § 1346(b), made the UnitedStates subject to liability in certain circumstancesfor negligently caused wrongful death to the sameextent as a private person. See, e.g., Richards v.United States, 369 U.S. 1, 82 S. Ct. 585, 7 L. Ed.2d 492 (1962).These numerous and broadly applicablestatutes, taken as a whole, make it clear that thereis no present public policy against allowingrecovery for wrongful death. The statutesevidence a wide rejection by the legislatures ofwhatever justifications may once have existed fora general refusal to allow such recovery. Thislegislative establishment of policy carriessignificance beyond the particular scope of eachof the statutes involved. The policy thusestablished has become itself a part of our law, tobe given its appropriate weight not only in mattersof statutory construction but also in those ofdecisional law.* * *In sum, in contrast to the torrent of difficultlitigation that has swirled about The Harrisburg,The Tungus, which followed upon it, and theproblems of federal-state accommodation theyoccasioned, the recognition of a remedy forwrongful death under general maritime law can beexpected to bring more placid waters. Thatprospect indeed makes for, and not against, thediscarding of The Harrisburg.We accordingly overrule The Harrisburg, andhold that an action does lie under generalmaritime law for death caused by violation ofmaritime duties. The judgment of the Court ofAppeals is reversed, and the case is remanded tothat court for further proceedings consistent withthis opinion. It is so ordered.Reversed and remanded.Mr. Justice BLACKMUN took no part in theconsideration or decision of this case.5See also National Parks Act, 16 U.S.C. § 457; OuterContinental Shelf Lands Act, 43 U.S.C. §§ 1331-1343(making state wrongful-death statutes applicable toparticular areas within federal jurisdiction). Cf. n.16, infra.MORAGNE V. STATES MARINE LINES

154 3. DAMAGESFIRST NATIONAL BANK OFMEADVILLE v. NIAGARA THERAPYMANUFAC-TURING CORPORATION229 F. Supp. 460 (W.D. Pa. 1964)WILLSON, District JudgeThe plaintiff in this case is the First NationalBank of Meadville, Pennsylvania, Executor underthe will of Kenneth W. Rice, deceased. Mr. Ricewas killed in an airplane accident at the Port ErieAirport on January 22, 1962....* * *Liability* * *Applying the ruling of ordinary negligence,this Court does not hesitate to find that the pilotCounselman failed in his duty to exercisereasonable care in making his plans for his flight,and thereafter during the course of his flight infailing to return to Buffalo when he had theopportunity to do so. But the first point issufficient to hold the defendant responsible for thecrash....DamagesPlaintiff brought suit under both the"Wrongful Death Statutes" (12 P.S. 1602-1604)and the "Survival Statute" (20 P.S. 320.603) ofPennsylvania for the benefit of the survivingwidow and the two daughters of the decedent.* * *This Court will apply the principle announcedin Ferne v. Chadderton, 363 Pa. at 197, 69 A.2d at107, with respect to the amounts which theplaintiff is to recover for the benefit of the wifeand daughters. That opinion says the rule is:Under the Death Statutes theadministratrix was entitled to recover forthe benefit of the daughter and herself aswidow the amount of the pecuniary lossthey suffered by reason of decedent'sdeath, that it to say, the present worth ofthe amount they probably would havereceived from his earnings for theirsupport during the period of his lifeexpectancy and while the familyrelationship continued between them, butwithout any allowance for mentalsuffering, grief, or loss of companionship;in other words, the measure of damages isthe value of the decedent's life to theparties specified in the statute: Minkin v.Minkin, 336 Pa. 49, 55, 7 A.2d 461, 464.Recovery is also allowed for the expenseincurred for medical and surgical care, fornursing of the deceased, and for thereasonable funeral expenses. Act of May13, 1927, P.L. 992, 12 P.S. 1604. Underthe Survival Statute, 20 P.S. 771, 772, theadministratrix was entitled to recover forthe loss of decedent's earnings from thetime of the accident until the date of hisdeath, and compensation for his pain andsuffering during that period. Recoverymay also be had for the present worth ofhis likely earnings during the period ofhis life expectancy, but diminished by theamount of the provision he would havemade for his wife and children as abovestated (thus avoiding duplication:Pezzulli, Administrator v. D'Ambrosia,344 Pa. 643, 650, 26 A.2d 659, 662) anddiminished also by the probable cost ofhis own maintenance during the time hewould likely have lived but for theaccident: Murray, Administrator, v.Philadelphia Transportation Co., 359 Pa.69, 73, 74, 58 A.2d 323, 325.As indicated Mr. Rice was survived by hiswidow, Mary T. Rice, and two daughters, Cynthiaand Barbara....Under the evidence it is believed fair and justto award to the plaintiff the sum of $7,500.00 forthe loss of the contributions which the twochildren would have received had it not been fortheir father's death.The widow, Mary T. Rice, had the benefit ofthe generosity of a husband who provided herwith the good things in life commensurate withhis $25,000.00 a year income. It seemsconservative of this Court to say that she had thebenefit of at least $10,000.00 a year of thatincome. She enjoyed the use of a new automobileevery two years. She had an unlimited checkingFIRST NATIONAL BANK OF MEADVILLE V. NIAGARA THERAPY MANUFAC-TURING CO.

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 155account. She bought clothes of up to $2,500.00 inprice annually. They lived among friendscommensurate with a house and furnishings of thevalue of $65,000.00. Again but only as indicatingthe manner in which Mr. Rice spent his money,the records showed that he would borrow$20,000.00 from the bank, invest it in stock, andpay off the debt over a period of about three years.It is apparent that the rest of his money was spentin good living, as he had no cash savings at thetime he died. He had been some twenty-five yearsin the practice of law, and it is believed hisincome had leveled off. But under the testimonyhe had a life expectancy of approximatelytwenty-four years on January 22, 1962. Counselfor plaintiff argues that decedent's earnings wouldincrease during his remaining working life. This isso, says counsel, because a lawyer's earnings willincrease as he advances in wisdom and maturity.On the other hand, counsel for the defendantcontended that it is more likely that decedent'searnings would fall off during the remainder of hislife. Balancing the two theories together, it seemsto the Court that $25,000.00 a year averaged outfor his life expectancy is reasonable. In thisCourt's opinion, Mrs. Rice had the benefit of$10,000.00 per year contributions from herhusband. She received the benefit of this sum byway of her general maintenance in the home on arather luxurious standard of living, her expensesfor her clothing, medical, and incidental bills, andin the expenditure of funds for her own and herhusband's pleasure. There was a two year intervalbetween the date of death, which occurred January22, 1962, and the trial. Mrs. Rice's pecuniary lossduring that period is not reduced, so for herbenefit the Executor in this instance recovers$20,000. Under the various life expectancy tables,it appears that twenty-two years is the propernumber of years to be used in computing thepresent worth of likely earnings and contributions.Thus in Mrs. Rice's case $10,000.00 a year fortwenty-two years amounts to a gross of$220,000.00. Under the tables, AM. JUR. 2D DESKBOOK, Doc. No. 133, the present value of $1.00per year, computed at 6 per cent as required bystate law, for twenty-two years is 12.042 dollars.$10,000.00 is $120,420.00. Thus, under theWrongful Death Acts, the Executor is entitled torecover for the benefit of Mrs. Rice, $120,420.00.Also, the Executor is claiming the sum of$2,000.00, covering reasonable funeral andadministration expenses, and this sum is awardedthe Executor. Under the Wrongful Death Act thenthe damages are computed as follows:Loss of contributions by the twodaughters ............................................ $ 7,500Loss of contributions by the widow todate of trial ......................................... $ 20,000Loss of future contributions to widow(reduced to present worthby 6%method) ................................... 120,420Funeral and administration expense 2,000__________________________TOTAL DAMAGES UNDER WRONGFULDEATH ACT .................................. $149,920The damages awarded in the foregoingamount under the Wrongful Death Acts are amplysupported by the evidence. In the computation ofdamages under the Survival Act, however, theproblem is not as clearly defined.It is this Court's experience that under theSurvival Act damages to be awarded a decedent'sestate are generally based on evidence whichmust be estimated with some degree of elasticity.There has lately been considerable discussion asto what the rule is with respect to this type ofaward. See a discussion in the PENNSYLVANIABAR JOURNAL, Vol. 32, p. 47 (Oct. 1960), "HasThe Measure Of Damages Under The SurvivalAct In Pennsylvania Been Modified?" In theinstant case, the problem is made somewhatdifficult because the record is bare of any specifictestimony as to the money spent by Mr. Rice forhis own maintenance during his lifetime. The lastdecision of the Supreme Court of Pennsylvania,Skoda v. West Penn Power Co., 411 Pa. 323, 191A.2d 822, 829 (1963), states the rule as follows:Recovery may also be had for thepresent worth of his likely earningsduring the period of his life expectancy,but diminished by the amount of theprovision he would have made for hiswife and children as above stated, thusavoiding duplication. Pezzulli,Administrator, v. D'Ambrosia, 344 Pa.643, 650, 26 A.2d 659, 662, anddiminished also by the probable cost ofhis own maintenance during the time hewould likely have lived but for theaccident. Murray, Administrator v.Philadelphia Transportation Co., 359 Pa.69, 73, 74, 58 A.2d 323, 325.FIRST NATIONAL BANK OF MEADVILLE V. NIAGARA THERAPY MANUFAC-TURING CO.

156 3. DAMAGESCounsel for plaintiff strongly urge that underthe rule in the various decisions, including Skoda,the award to the Executor in this case should runover $127,000.00. Although the award to bemade under the Survival Statute is not to be basedon savings and not to be based on accumulations,nevertheless, the history of Mr. Rice's financialstatus indicates that he shows not only the abilityto save but also to accumulate. Following therule, however, in Ferne v. Chadderton, and othercases, the present worth of decedent's likelyearnings during the remaining period of thedecedent's life expectancy is to be computed.This sum is to be diminished by the amount ofthe awards to the family under the WrongfulDeath Acts and also diminished by the probablecost of his own maintenance during the time hewould likely have lived but for the accident.Therefore, in accordance with the rule andthe tables, the present worth of $25,000.00 a yearfor twenty-two years is $301,050.00. From thissum the amount awarded to the family under theWrongful Death Acts is to be deducted. This sumis $147,920.00. Deducting this figure from the$301,050.00 leaves $153,130.00 as the presentworth of the pecuniary earnings lost to the state.To arrive at an award from this sum, it isnecessary to deduct decedent's own maintenanceexpenses which he would have incurred had helived. Under the cases and decisions these items,of course, include his cost of living, medicalexpenses, reasonable amounts for recreation, andgeneral expenses of living. This is the area in theevidence in which there is very little proof, but itseems to this Court safe to conclude that hismaintenance expenses are certainly equal to theamount he provided for his wife, that is,$10,000.00 a year. They both lived on the samescale. On this basis then, $120,420.00 is to bededucted from $153,130.00, leaving $32,710.00.This sum represents the loss of future earnings tothe estate reduced to present worth. This sum alsorepresents the difference between the likely grossearnings during decedent's lifetime diminished bythe family contributions and less also the amountof his own maintenance during his lifeexpectancy. To this sum is added the two years'gross earnings which are not to be reduced topresent worth.In applying the doctrine of "presentworth," it should be borne in mind thatcompensation, both for loss of earningpower under the Survival Act and forloss of contributions under the DeathAct, accruing from the date of theaccident until the date of trial, is notreduced to present worth." SeePENNSYLVANIA BAR ASSOCIATIONQUARTERLY, Vol. XXIII, No. 1, October1951, p. 19.The two years' gross earnings between thedecedent's death and the trial amount to$50,000.00. But, however, during the two yearspreceding the trial decedent would haveexpended $20,000.00 on his own maintenance.Therefore, from his gross earnings that amount isto be deducted leaving the sum of $30,000.00 tobe added to the $32,710.00, leaving a netrecovery under the Survival Act of $62,710.00.In summary then, the damages to be awardedthe Executor are as follows:Under the Wrongful Death Acts..........................................................$149,920Under the Survival Act ................. 62,710__________________________TOTAL DAMAGES: .................$212,630FELDMAN v. ALLEGHENY AIRLINES524 F.2d 384 (CA 2, 1975)LASKER, District JudgeOn June 7, 1971, an Allegheny Airlines flightcrashed in fog which approaching New HavenAirport. Nancy Feldman, a passenger, died, in thecrash. Allegheny conceded liability, and theparties submitted the issue of damages to JudgeBlumenfeld of the United States District Courtfor the District of Connecticut. 1 The airlineappeals 2 from Judge Blumenfeld's judgment1Judge Blumenfeld's detailed opinion is reported at382 F. Supp. 1271.2Mr. Feldman filed a cross-appeal to enable him toargue that, if this court were inclined to adopt some ofAllegheny's contentions, "there are other damageFIRST NATIONAL BANK OF MEADVILLE V. NIAGARA THERAPY MANUFAC-TURING CO.

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 157awarding $444,056 to Reid Laurence Feldman, asadministrator of the estate of his late wife.Determination of damages in the diversitywrongful death of action is governed byConnecticut law, specifically CONN. GEN. STATS.§ 52-555, which measures recovery by the loss tothe decedent of her life rather than buy the valueof the value of the estate she would have left hadshe lived a full life. Perry v. Allegheny Airlines,Inc., 489 F.2d 1349, 1351 (2d Cir. 1974); Floyd v.Fruit Industries, Inc., 144 Conn. 659, 669-671,136 A.2d 918, 924 (1957). In accordance withConnecticut law, the judgment represented thesum of (1) the value of Mrs. Feldman's lostearning capacity and (2) the destruction of hercapacity to enjoy life's non-remunerativeactivities, less (3) deductions for her necessarypersonal living expenses. No award was made forconscious pain and suffering before Mrs.Feldman's death because the evidence on thispoint was too speculative, nor did the awardinclude pre-judgment interest.Damages in a wrongful death action mustnecessity represent a crude monetary forecast ofhow the decedent's life would have evolved. Priorto stating his specific findings, the district judgenoted, and we agree, that "the whole problem ofassessing damages for wrongful death ... defiesany precise mathematical computation," citingFloyd v. Fruit Industries, Inc., supra, 144 Conn.at 675, 136 A.2d at 927 (382 F. Supp. at 1282).It is clear from Judge Blumenfeld'sremarkably detailed and precise analysis that henevertheless made a prodigious effort to reducethe intangible elements of an award tomeasurable quantities. It is with reluctance,therefore, that we conclude that his determinationof loss of earnings and personal living expensesmust remanded.IDamages for Destruction of EarningCapacity.Nancy Feldman was 25 years old at the timeof her death. From 1968 until shortly before theplane crash, she lived and worked in New Havenelements, not recognized by the District Court whichwould offset any reduction in the award and thus justify ajudgment of $444,056." We disagree that JudgeBlumenfeld failed to recognize any appropriate element ofdamages.while her husband studied at Yale Law School.On Mr. Feldman's graduation from law school inthe spring of 1971 the Feldmans moved toWashington, D.C., where they intended to settle.At the time of her death, Mrs. Feldman hadneither accepted nor formally applied foremployment in Washington, although she hadbeen accepted by George Washington LawSchool for admission in the Fall of 1971 and hadmade inquiries about the availability ofemployment.* * *In computing the value of Mrs. Feldman'slost earning capacity, the trial judge found thatMrs. Feldman's professional earnings in her firstyear of employment would have been $15,040.and that with the exception of eight years duringwhich she intended to raise a family and to workonly part time, she would have continued in fullemployment for forty years until she retired atage 65. The judge further found that during theperiod in which she would be principallyoccupied in raising her family, Mrs. Feldmanwould have remained sufficiently in contact withher profession to maintain, but not increase, herearning ability. Pointing out that underConnecticut law damages are to be based on "theloss of earning capacity, not future earnings perse...." (382 F. Supp. at 1282) (emphasis inoriginal), the judge concluded that when a personsuch as Mrs. Feldman, who possesses significantearning capacity, chooses to forego remunerativeemployment in order to raise a family, shemanifestly values child rearing as highly as workin her chosen profession and her loss of theopportunity to engage in child rearing "may thusfairly be measured by reference to the earningcapacity possessed by the decedent" (382 F.Supp. at 1283). Applying this rational, the trialjudge made an award for the eight year period of$17,044. per year, the salary which he computedMrs. Feldman would have reached in the yearpreceding the first child-bearing year, but did notincrease the amount during the period.We believe the trial judge erred inautomatically valuing Mrs. Feldman's loss for thechild-bearing period at the level of her salary. AsJudge Blumenfeld's opinion points out, theConnecticut cases distinguish clearly betweenloss of earning capacity and loss of capacity tocarry on life's non-remunerative activities. As weread Connecticut law, where a decedent suffersboth kinds of loss for the same period each mustFELDMAN V. ALLEGHENY AIRLINES

158 3. DAMAGESbe valued independently in relation to theelements particular to it.The court in Floyd v. Fruit Industries, Inc.,supra, equated "earning capacity" with "thecapacity to carry on the particular activity ofearning money." 144 Conn. at 671, 136 A.2d at925. Here the evidence established, and the trialcourt found, that Mrs. Feldman would haveworked only part-time while raising a family. Inthe circumstances, we believe that under theConnecticut rule the plaintiff is entitled to recover"loss of earnings" for the child raising years onlyto the extent that the court finds that Mrs.Feldman would actually have worked duringthose years. For example, if the court finds thatshe would have worked 25% of the time duringthat period, the plaintiff would properly becredited only with 25% of her salary for each ofthe eight years. This conclusion is consistent withthe other leading authority in Connecticut. InChase v. Fitzgerald, 132, Conn. 461, 45 A.2d 789(1946), an award for "loss of future earnings" wasdenied in respect of a decedent who had beenemployed as a housekeeper, but who at the timeof her death was a housewife with no intention ofseeking outside employment. The court held thatany award for wrongful death in such a caseshould be based not on the decedent's loss ofearning capacity, but rather on her "loss of theenjoyment of life's activities." 132 Conn. at 470,45 A.2d at 793. Consistently with the holding inChase, we conclude that any award of relation tothe portion of the child-raising period duringwhich Mrs. Feldman would not have beenworking must be predicted on her "loss of theenjoyment of life's activities" rather than on lossof earnings, and on remand the district judgeshould reevaluate the elements accordingly.We recognize that thus computed the totalaward for Mrs. Feldman's child-raising years maybe similar to that already made, but conclude thatthe conceptual framework we have described isrequired by Connecticut's distinctive law ofdamages.IIDeductions for Decedent's NecessaryPersonal Living ExpensesWhere the decedent had been subject to theexpense of self-maintenance, Connecticut caselaw provides for the deduction of "personal livingexpenses" from damages otherwise recoverablefor the loss of earning capacity. Floyd v. FruitIndustries, Inc., supra, 144 Conn. at 674, 136A.2d at 926. Judge Blumenfeld properly held thatalthough a husband under Connecticut law has aduty to support his spouse, (see e.g., CONN. GEN.STATS. §§ 46-10; 53-304), that duty does notexempt an income-earning wife from anobligation to apportion a part of her income forher own support. The Floyd court defined the term"personal living expenses" as:those personal expenses which, underthe standard of living followed by a givendecedent, it would have been reasonablynecessary for him to incur in order tokeep himself in such a condition of healthand well-being that he could maintain hiscapacity to enjoy life's activities,including the capacity to earn money."144 Conn. at 675, 136 A.2d at 926-927.The trial judge concluded that, underConnecticut law, deductions for Mrs. Feldman'spersonal living expenses should include the cost,at a level commensurate with her standard ofliving, of food, shelter, and clothing and healthcare. The judge fixed such costs in Washington,D.C. for the year following her death at $2,750.,increasing that figure by 3% per year to the age ofretirement. After retirement, living expenses werededucted at the rate of $5,000. annually. Thesefigures were discounted annually by 1.5% toreduce the deduction to present value. Althoughthe process by which the trial judge determinedthe level of Mrs. Feldman's living expenses wasproper, we believe that he substantiallyunderestimated the actual costs of food, shelter,clothing and health care.On direct examination, Mr. Feldman testifiedthat his wife's personal living expenses in NewHaven had been approximately $2,210. per year.On cross-examination, this figure was shown tohave been unduly conservative with regard toclothing and food, and the trial judge rounded theamount to $2,200. He found that the Feldmans'cost of living would have increased after theymoved to Washington, where living expenseswere higher and their social and economic statuswould have changed from that of students to thatof young professionals. Accordingly, the judgeadjusted the $2,200. figure upward by 25% for thefirst year Mrs. Feldman would have resided inWashington, and by 3% annually until she wouldhave reached the age of sixty-five and retired.Personal living expenses for that year wereFELDMAN V. ALLEGHENY AIRLINES

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 159calculated to be $6,675, but during the years ofretirement deductions were lowered to $5,000., alevel which the trial judge felt was consistent witha high standard of living but also reflected the factthat the cessation of work often produces areduction in personal expenditures.We recognize the perils involved in anappellate court dealing de novo with factualmatters. We would not venture to do so in thiscase if we did not feel we have the right to takejudicial notice of the facts of life, including thecost of living for those in the position of theFeldmans in such metropolitan areas asWashington, D.C. We reluctantly conclude thatthe trial judge was in error in computing livingexpenses at $2,750. for the year after Mrs.Feldman's death, and building on that base forlater years.Without attempting to specify what the resultsof such a computation should be, we believe thatit would fall more nearly in the area of $4,000.,including approximately $25. per week for food,$125. per month for rent, $1,000. annually forclothing and $400. annually for health care. Forone year the difference between the trial judge'sfigure of $2,750. and the suggested figure of$4,000. may be considered de minimis in relationto the total award. However, projected over the 52years of Mrs. Feldman's life expectancy, and at anannual increase of 3%, the difference issufficiently large to require us to remand thematter for further determination by the trial judge.We have considered the other points raised byAllegheny and find them to be without merit.The judgment is affirmed in part, reversed inpart and remanded.FRIENDLY, Circuit Judge (concurringdubitante)This case is another example of a federalcourt's being compelled by the Congressionalgrant of diversity jurisdiction to determine a noveland important question of state law on which statedecisions do not shed even a glimmer of light....I doubt whether judges, or anyone else, canpeer so far into the future; the district court'scomputations suffer from what Mr. JusticeHolmes, in another context, called "the dangers ofa delusive exactness," Truax v. Corrigan, 257 U.S.312, 342 (1921) (dissenting opinion).... The estateof a young woman without dependents is hardlyan outstanding candidate for a forty-yearprotection against inflation not enjoyed at all bymillions of Americans who depend on pensions orinvestment income and not fully enjoyed bymillions more whose salaries have in no wise keptpace with inflation.* * *I would also question the likelihood - indeed,the certainty as found by the court - that, despiteher ability, determination and apparent goodhealth, Mrs. Feldman would have worked fulltime for forty years until attaining age 65, exceptthe eight years she was expected to devote to thebearing and early rearing of two children. Apartfrom danger of disabling illness, temporary orpermanent, there would be many attractions towhich the wife of a successful lawyer might yield:devoting herself to various types of communityservice, badly needed but unpaid, or to politicalactivity; accompanying her husband on businesstrips - often these days to far-off foreign countries;making pleasure trips for periods and at times ofthe year inconsistent with the demands of her job;perhaps, as the years went on, simply taking timeoff for reflection and enjoyment. Granted that inan increasing number of professional householdsboth spouses work full time until retirement age,in more they do not. Surely some discount canand should be applied to the recovery for thesereasons.My guess is also that, even if inflation shouldbe taken into account, neither a Connecticut nor afederal jury would have made an award as large aswas made here. I say this despite the $369,400jury verdict for another death arising out of thesame crash which we sustained in Perry v.Allegheny Airlines, Inc., supra, 489 F.2d 1349,where we did not expressly discuss the inflationquestion. Even though the existence of dependentsis legally irrelevant under the Connecticutsurvival statute, a jury would hardly have ignoredthat, whereas Perry was survived by a dependentwife and five children ranging from 6 to 14 yearsin age, Mrs. Feldman had no dependents. Moresignificant to me is that in Perry's case the juryawarded only $369,400 as against the $535,000estimate of Mrs. Perry's expert for economic lossalone; here the judge was more generous inimportant respects than plaintiff's expert.However, I am loathe to require a busyfederal judge to spend still more time on thisdiversity case, especially when I do not knowwhat instructions to give him about Connecticutlaw.FELDMAN V. ALLEGHENY AIRLINES

160 3. DAMAGES* * *Judgments like Mr. Feldman's and Mrs.Perry's also inevitably raise serious policyquestions with respect to damages in airlineaccident cases beyond those here considered, butthese are for Congress and not for courts.Questions and Notes1. Obviously one of the most important issuesin wrongful death cases is whether a recovery willbe permitted for the "noneconomic" damages,sometimes called "hedonic damages." For anargument that recovery is necessarily incompleteunless some recovery is given for such damages,see McClurg, It's a Wonderful Life: The Case forHedonic Damages in Wrongful Death Cases, 66Notre Dame L. Rev. 57 (1990).2. Should there be a flat amount of damagesset by statute for airlines for wrongful death?What advantages would such a plan have? Whatdisadvantages?3. If a hospital's negligence results in thedeath of a child still in the womb, is there anaction for wrongful death? For recovery underthe survival statute, if there is one? See Wartellev. Women's & Children's Hospital, 704 So. 2d 778(La. 1997); Eleni M. Roumel, RecentDevelopment; Denial of Survival and BystanderActions for Death of a Stillborn Child, 73 Tul. L.Rev. 399 (1998); Jonathan Dyer Stanley, FetalSurgery and Wrongful Death Actions on Behalf ofthe Unborn: an Argument for a Social Standard,56 Vand. L. Rev. 1523 (2003); Dena M. Marks,Person v. Potential: Judicial Struggles to DecideClaims Arising from the Death of an Embryo orFetus and Michigan's Struggle to Settle theQuestion, 37 Akron L. Rev. 41 (2004). .4. Of recent interest is the status of“domestic partners” in wrongful death schemes.In California the domestic partner of a womankilled by her neighbor‟s dogs challenged theconstitutionality of a California statute thatlimited wrongful death recoveries to spouses,children, and other designated beneficiaries. Asuperior court judge agreed with the plaintiff thatthe statute did not comply with the equalprotection clause, but before the case could beresolved on appeal, the California legislatureamended the wrongful death statute to state thatthe eligible beneficiaries included “the decedent'ssurviving spouse, domestic partner, children, andissue of deceased children, or, if there is nosurviving issue of the decedent, the persons,including the surviving spouse or domesticpartner, who would be entitled to the property ofthe decedent by intestate succession.” Somecommentators approved. See Christopher D.Sawyer, Practice What You Preach: California’sObligation to Give Full Faith and Credit to theVermont Civil Union, 54 Hastings L.J. 727(2003). Others were critical: Megan E. Callan,The More, the Not Marry-er: In Search of aPolicy Behind Eligibility for California DomesticPartnerships, 40 San Diego L. Rev.427 (2003).2. "Wrongful Birth" and "WrongfulLife"Introductory Note. "Wrongful birth" and"wrongful life" claims present a special problem.These cases must be distinguished from anordinary tort claim based upon someone'snegligence (typically a health care provider) incausing injury to a child. For example, suppose apharmacist is given a prescription for ironsupplements for a pregnant woman, and henegligently fills the prescription with a drug thatcauses harm to the fetus. The child (and perhapshis parents) can sue the pharmacist for hisnegligence, using as a measure of damage thetypical comparison of life as it is with life but forthe defendant's negligence. Such a case would notdiffer from the analysis in the cases discussed in§ A, supra. * The difficult cases arise not where the*To be fair, there are some additional wrinklescaused by injury to a fetus. Some early cases questionedwhether a tortious act could be committed against a personnot even in existence. However, it is obvious that a twoyear-oldwould have a claim against a negligent carpenterif the house falls down on him at age 2, even if thenegligent act was committed four years earlier, when thechild was not even conceived. More difficult is the issue ofwrongful death claims if the fetus dies in utero; when doesFELDMAN V. ALLEGHENY AIRLINES

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 161negligent act harms an already existing person,but instead where the negligent act causes aperson to exist in the first place.UNIVERSITY OF ARIZONA HEALTHSCIENCES CENTER v. SUPERIORCOURT136 Ariz. 579, 667 P.2d 1294 (1983)FELDMAN, JusticePetitioner, a health care provider whichoperates a teaching hospital, brings this specialaction, claiming that the respondent judge erredin a legal ruling on petitioner's motion forsummary judgment in the underlying tort action.Petitioner seeks this court's intervention by wayof an order requiring respondent judge to applythe correct rule of law and to grant the motion forpartial summary judgment. We have jurisdictionto entertain the action by virtue of Ariz. Const.art. 6, § 5(1), and Ariz. R. Sp. Act. 4, 17A A.R.S.The real parties in interest are PatrickHeimann and Jeanne Heimann, husband and wife(Heimanns). The Heimanns originally brought amedical malpractice action against petitioner, ahealth care provider. The Heimanns claimed thatone of the hospital's employees, a doctor, hadnegligently performed a vasectomy operationupon Patrick Heimann, that as a result JeanneHeimann became pregnant and on October 4,1981 gave birth to a baby girl. The Heimannsalleged in the underlying tort action that thevasectomy had been obtained because "alreadyhaving three children, [they] decided ... that theythe fetus become a "person" allowed to bring such aclaim? See Giardina v. Bennett, 111 N.J. 412, 545 A.2d139 (1988), (no wrongful death recovery, only anegligence action by the parents)(commented upon inNote, 21 RUTGERS L.J. 227 (1989)). The problem is furthercompounded by the possibility the mother's claim mightamount to a double recovery.A final twist exists in that as traditional family tortimmunities erode (see Chapter 5 'A), the possibility risesthat children might be able to sue their mothers forprenatal injuries. See "Can I Sue Mommy?" An Analysis ofa Woman's Tort Liability for Prenatal Injuries for HerChild Born Alive, 21 SAN DIEGO L. REV. 325 (1984).Nonetheless, it must be clearly borne in mind that a claimbased upon negligently causing a birth raises a set ofproblems distinct from those associated with negligentlyharming a person who would have been born anyway.desired to have no more children. As a result ofthis decision they further decided that avasectomy was the best means of contraceptionfor them." The baby girl is normal and healthy,but the Heimanns argue that they are financiallyunable to provide for themselves, their other threechildren and the newest child whose birth wasneither planned nor desired. Accordingly, theyseek damages from the doctor and his employer.The question of negligence is not before us.The issue which brings these parties to our courtpertains, rather, to the nature and extent of thedamages which can be recovered, assuming thatnegligence is subsequently proved. The hospitalfiled a motion for partial summary judgment(Ariz. R. Civ. P. 56(b), 16 A.R.S.), contending thatwhile damages were recoverable for "wrongfulpregnancy," "as a matter of law [the Heimanns]could not recover damages for the future cost ofraising and educating their normal, healthy childborn as the result of petitioner's negligence." Thetrial judge denied the motion for partial summaryjudgment. Petitioner then brought this specialaction, claiming that the ruling of the trial judgewas improper and should be vacated by this court.* * *Therefore, we shall proceed to consider thelegal questions pertaining to the nature and extentof damages which may be recovered in an actionfor "wrongful pregnancy." 1 The first question iswhether parents of a child who was neitherdesired nor planned for but who was, fortunately,normal and healthy, have been damaged at all bythe birth of that child. An overview of theauthorities indicates rather clearly that the lawwill recognize at least some types of damagewhich result from unwanted procreation caused bythe negligence of another. See annot., TortLiability for Wrongfully Causing One to Be Born,1Although this action is brought under common lawnegligence principles, the term "wrongful pregnancy" isgenerally used to describe an action brought by the parentsof a healthy, but unplanned, child against a physician whonegligently performed a sterilization or abortion. SeePhillips v. United States, 508 F. Supp. 544, 545 n.1(D.S.C. 1980). This action is distinguished from a"wrongful birth" claim brought by the parents of a childborn with birth defects, or a "wrongful life" claim broughtby the child suffering from such birth defects. See Turpinv. Sortini, 31 Cal. 3d 220, 643 P.2d 954, 182 Cal. Rptr.337 (1982).UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

162 3. DAMAGES83 A.L.R.3d 15, 29 (1978); Phillips v. UnitedStates, 508 F. Supp. 544, 549 (D.S.C. 1980). Thereal controversy centers around the nature of thedamages which may be recovered. On this issuethere are three distinct views.The first line of authority limits damages byholding that the parents may recover only thosedamages which occur as the result of pregnancyand birth, and may not recover the cost of rearingthe child. Boone v. Mullendore, 416 So. 2d 718,721 (Ala. 1982); Wilbur v. Kerr, 275 Ark. 239,243-44, 628 S.W.2d 568, 571 (1982); Coleman v.Garrison, 327 A.2d 757, 761-62 (Del. Super. Ct.1974), aff'd 349 A.2d 8, 13-14 (Del. 1975);Cockrum v. Baumgartner, 95 Ill. 2d 193, 203-04,69 Ill. Dec. 168, 173-74, 447 N.E.2d 385, 390-91(1983) (reversing 99 Ill. App. 3d 271, 54 Ill. Dec.751, 425 N.E.2d 968 (1981)); Schork v. Huber,648 S.W.2d 861, 862 (Ky. 1983); Sala v.Tomlinson, 73 A.D.2d 724, 726, 422 N.Y.S.2d506, 509 (1979); Mason v. Western PennsylvaniaHospital, 499 Pa. 484, 453 A.2d 974, 975-76(1982).A second view could be characterized as the"full damage" rule and allows the parents torecover all damages and expenses, including thecost of the unsuccessful sterilization procedure,the economic loss from pregnancy, and theeconomic, physical and emotional cost attendantto birth and rearing the child. Custodio v. Bauer,251 Cal. App. 2d 303, 325, 59 Cal. Rptr. 463, 477(1967); Cockrum v. Baumgartner, 99 Ill. App. 3d271, 273-74, 54 Ill. Dec. 751, 753, 425 N.E.2d968, 970 (1981), rev'd 95 Ill. 2d 193, 69 Ill. Dec.168, 447 N.E.2d 385 (1983). These cases appearto be a distinct minority.A substantial number of cases have adopted athird rule which allows the recovery of alldamages which flow from the wrongful act butrequires consideration of the offset of benefits.See RESTATEMENT (SECOND) OF TORTS § 920(1977). 2 Under this view, the trier of fact ispermitted to determine and award all past andfuture expenses and damages incurred by theparent, including the cost of rearing the child, but2RESTATEMENT (SECOND) OF TORTS § 920 states:When the defendant's tortious conduct has caused harm tothe plaintiff or to his property and in so doing hasconferred a special benefit to the interest of the plaintiffthat was harmed, the value of the benefit conferred isconsidered in mitigation of damages, to the extent that thisis equitable.is also instructed that it should make a deductionfor the benefits that the parents will receive byvirtue of having a normal, healthy child. Stills v.Gratton, 55 Cal. App. 3d 698, 708-09, 127 Cal.Rptr. 652, 658-59 (1976); Ochs v. Borelli, 187Conn. 253, 259-60, 445 A.2d 883, 886 (1982);Troppi v. Scarf, 31 Mich. App. 240, 255, 187N.W.2d 511, 519 (1971); Sherlock v. StillwaterClinic, 260 N.W.2d 169, 175-76 (Minn. 1977).The hospital claims that the trial court wasbound by law to adopt the first view, that the costof rearing and educating the child are notcompensable elements of damage. The Heimannsclaim, on the other hand, that the proper rule is thesecond view, which permits the recovery of alldamage and does not permit the jury to considerand offset benefits. We disagree with bothpositions.We consider first the strict rule urged by thehospital. Various reasons are given by the courtswhich adopt the view that damages for rearing andeducating the child cannot be recovered. Somecases base their decision on the speculative natureof the necessity to assess "such matters as theemotional affect of a birth on siblings as well asparents, and the emotional as well as pecuniarycosts of raising an unplanned and, perhaps, anunwanted child in varying family environments."Coleman v. Garrison, 327 A.2d at 761. We think,however, that juries in tort cases are often requiredto assess just such intangible factors, bothemotional and pecuniary, and see no reason why anew rule should be adopted for wrongfulpregnancy cases. Another reason given for thestrict view is the argument that the benefits whichthe parents will receive from having a normal,healthy child outweigh any loss which the parentsmight incur in rearing and educating that child.Terrell v. Garcia, 496 S.W.2d 124, 128 (Tex. Civ.App. 1973). No doubt this is true in many cases,but we think it unrealistic to assume that it is truein all cases. We can envision many situations inwhich for either financial or emotional reasons, orboth, the parents are simply unable to handleanother child and where it would be obvious thatfrom either an economic or emotional perspective- or both - substantial damage has occurred.A third basis for the strict rule is the argumentthat the "injury is out of proportion to theculpability of the [wrongdoer]; and that theallowance of recovery would place toounreasonable a burden upon the [wrongdoer],since it would likely open the way for fraudulentclaims...." Beardsley v. Wierdsma, 650 P.2d 288,UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 163292 (Wyo. 1982). This, of course, is the hue andcry in many tort cases and in essence is no morethan the fear that some cases will be decidedbadly. Undoubtedly, the system will not decideeach case correctly in this field, just as it does notin any field, but here, as in other areas of tort law,we think it better to adopt a rule which will enablecourts to strive for justice in all cases rather thanto rely upon one which will ensure injustice inmany. Brannigan v. Raybuck, 136 Ariz. 513, 519,667 P.2d 213, 219 (1983).The final basis for the strict rule is the onewhich gives this court greater pause than any ofthe others. It is well put by the Illinois SupremeCourt in Cockrum v. Baumgartner, supra. Thecourt used the following words to justify thedenial of recovery of damages for the rearing andeducating of the unplanned child: "There is nopurpose to restating here the panoply of reasonswhich have been assigned by the courts whichfollow the majority rule.... In our view, however,its basic soundness lies in the simple propositionthat a parent cannot be said to have been damagedby the birth and rearing of a normal, healthychild.... [I]t is a matter of universally-sharedemotion and sentiment that the intangible but allimportant, incalculable but invaluable `benefits' ofparenthood far outweigh any of the meremonetary burdens involved. Speaking legally, thismay be deemed conclusively presumed by the factthat a prospective parent does not abort orsubsequently place the "unwanted" child foradoption. On a more practical level, the validity ofthe principle may be tested simply by asking anyparent the purchase price for that particularyoungster. Since this is the rule of experience, itshould be, and we therefore hold that it is, theappropriate rule of law."... We consider that on thegrounds described, the holding of a majority ofjurisdictions that the costs of rearing a normal andhealthy child cannot be recovered as damages tothe parents is to be preferred. One can, of course,in mechanical logic reach a different conclusion,but only on the ground that human life and thestate of parenthood are compensable losses. In aproper hierarchy of values, the benefit of lifeshould not be outweighed by the expense ofsupporting it. Respect for life and the rightsproceeding from it are the heart of our legalsystem and, broader still, our civilization. Id. 95Ill. 2d at 198-201, 69 Ill. Dec. at 171-72, 447N.E.2d at 388-89 (quoting Public Health Trust v.Brown, 388 So. 2d 1084, 1085-86 (Fla. App.1980)).These sentiments evoke a response from thiscourt. In most cases we could join in the"universally shared emotion and sentiment"expressed by the majority of the Illinois court, butwe do not believe we hold office to impose ourviews of morality by deciding cases on the basisof personal emotion and sentiment, though werealize we cannot and should not escape the effectof human characteristics shared by all mankind.However, we believe our function is to leave theemotion and sentiment to others and attempt toexamine the problem with logic and byapplication of the relevant principles of law. Inthis case, we believe that the strict rule is basedupon an emotional premise and ignores logicalconsiderations. While we recognize that in mostcases a family can and will adjust to the birth ofthe child, even though they had not desired tohave it, we must recognize also that there arecases where the birth of an unplanned child cancause serious emotional or economic problems tothe parents. 3 We therefore reject the hospital'sclaim that the cost of rearing and educating thechild can never be compensable elements ofdamage.We consider next the "full damage" rule urgedby the Heimanns and adopted by the Illinois Courtof Appeals in Cockrum v. Baumgartner and theCalifornia court in Custodio v. Bauer. The courtsapplying this rule have relied on traditional tortprinciples and determined that the cost of rearingthe child is a foreseeable consequence of thephysician's negligence and therefore compensable.Cockrum v. Baumgartner, 99 Ill. App. 3d at272-73, 54 Ill. Dec. at 752, 425 N.E.2d at 969. Weagree that these damages are compensable;however, we believe that a rule which does notallow for an offset for the benefits of theparent-child relationship prevents the trier of factfrom considering the basic values inherent in the3The examples which may be cited are as various ashuman experience can provide. Suppose, for instance, ahusband learns that he is suffering from cancer and that hisprognosis is uncertain. He and his wife already have fourchildren and decide that in view of his medical situation itis unwise to run the risk that the wife become pregnantagain. He arranges for a vasectomy, which is negligentlyperformed. Suppose further that the child which results isborn shortly before or after the husband's death fromcancer. Can one say as a matter of law that the benefits ofhaving a normal child outweigh the financial andemotional obligations which the struggling mother mustundertake? We think not.UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

164 3. DAMAGESrelationship and the dignity and sanctity of humanlife. We believe that these "sentiments," if theymay be called such, are proper considerations forthe fact finder in tort cases, whether they be usedto mitigate or enhance damages. No doubtascertaining and assigning a monetary value tosuch intangibles will be a difficult task, but we donot believe it more difficult than the task ofascertaining the pecuniary and non-pecuniarydamages that the parents will experience after thebirth of the child. Therefore, we agree with theIllinois Supreme Court (Cockrum v. Baumgartner,supra) that the "full damage" approach is anexercise in mechanical logic and we reject it.In our view, the preferable rule is thatfollowed by the courts which, although permittingthe trier of fact to consider both pecuniary andnon-pecuniary elements of damage which pertainto the rearing and education of the child, alsorequire it to consider the question of offsetting thepecuniary and non-pecuniary benefits which theparents will receive from the parental relationshipwith the child. 4 Some may fear that adoption ofsuch a rule will permit juries to recognizeelements of damage which, because of our privatephilosophy or views of ethics, we, as judges,believe should not be recognized. We feel,however that the consensus of a cross-section ofthe community on such important issues is betterand more accurately obtained from the verdict of ajury than from the decision of any particulargroup of that community. A jury verdict based onknowledge of all relevant circumstances is a betterreflection of whether real damage exists in eachcase than can be obtained from use of anyabstract, iron-clad rule which some courts would4The application of the benefit rule has been criticizedby some courts which argue that § 920 applies only whenthe injury and benefit are to the same interest. SeeRESTATEMENT, supra, § 920, comments a and b. Thesecourts argue that the emotional benefits of child rearing inno way offset the economic costs. Cockrum v.Baumgartner, 99 Ill. App. 3d at 274, 54 Ill. Dec. at 753,425 N.E.2d at 970. We are not persuaded by this argumentsince we agree with the special concurrence of JusticeFaulkner in Boone v. Mullendore, supra, that "theeconomic burden and emotional distress of rearing anunexpected child are inextricably related to each other...."Id. at 726. We also note that the benefit rule is based onthe concept of unjust enrichment and agree with JusticeFaulkner that strict interpretation of the same interestlimitation would result in unjust enrichment in wrongfulpregnancy cases. Id.adopt and apply regardless of the circumstances ofthe particular case.There may be those who fear that the rulewhich we adopt will permit the award of damageswhere no real injury exists. We feel this danger isminimized by giving weight and consideration ineach case to the plaintiffs' reasons for submittingto sterilization procedures. Such evidence isperhaps the most relevant information on thequestion of whether the subsequent birth of achild actually constitutes damage to the parents.Hartke v. McKelway, 707 F.2d 1544 (D.C. Cir.1983). The parents' preconception calculation ofthe reasons for preventing procreation is untaintedby bitterness, greed or sense of duty to the childand is perhaps the most telling evidence ofwhether or to what extent the birth of the childactually injured the parents. Id. For example,where the parent sought sterilization in order toavoid the danger of genetic defect, the jury couldeasily find that the uneventful birth of a healthy,non-defective child was a blessing rather than a"damage." Such evidence should be admissible,and the rule which we adopt will allow the jury tolearn all the factors relevant to the determinationof whether there has been any real damage and, ifso, how much. We are confident that the inherentgood sense of the jury is the best safeguard to"runaway" verdicts and unfounded speculation inthe award of damages, provided that the jury isallowed to consider the issues in realistic terms.It may be argued also that the rule which weadopt will have the unhappy effect of creatingsituations in which parents will testify to theirfeeling or opinion that the child is "not worth" theburden of having and rearing. Such testimonycould be harmful if or when the child learns of it."We are not convinced that the effect on the childwill be significantly detrimental in every case, oreven in most cases; ... we think the parents, notthe courts, are the ones who must weigh the risk."Hartke v. McKelway, at 1552 n.8; accord Sherlockv. Stillwater Clinic, 260 N.W.2d 176-77.We agree, therefore, with the specialconcurrence of Chief Justice Rose of theWyoming Supreme Court: [T]hrough applicationof the "benefit rule" the courts give recognition tothe philosophy that the costs and benefitsassociated with the introduction of an unplannedchild to the family will vary depending upon thecircumstances of the parents. As was stated inTroppi v. Scarf, supra, 187 N.W.2d at 519: "Theessential point, of course, is that the trier musthave the power to evaluate the benefit accordingUNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 165to all the circumstances of the case presented.Family size, family income, age of the parents,and marital status are some, but not all, the factorswhich the trier must consider in determining theextent to which the birth of a particular childrepresents a benefit to his parents. That thebenefits so conferred and calculated will varywidely from case to case is inevitable." Byrecognizing these considerations, the "benefitrule" encourages and entrusts the trier of fact withthe responsibility of weighing and considering allof the factors associated with the birth of theunplanned child in a given "wrongful pregnancy"case. For me, it is the soundest approach fordealing with the right of the parents to prove theirdamages caused by the unplanned birth of a childwithout, at the same time, uprooting the law oftort damages. Beardsley v. Wierdsma, 650 P.2d at296-97.In reaching our decision, we are influencedgreatly by what we perceive to be the uniformrules of damages for all tort cases. One of thebasic principles of damage law is the concept thata wrongdoer may be held liable for all damageswhich he may have caused and all costs which thevictim may sustain as a result of the wrong.Sherlock v. Stillwater Clinic, 260 N.W.2d at 174;Cockrum v. Baumgartner, 95 Ill. 2d at 206-07, 69Ill. Dec. at 175, 447 N.E.2d at 392 (CLARK, J.,dissenting). We have recognized before in Arizonathat the right to damages must be establishedwithout speculation, but that uncertainty as to theamount of those damages will not precluderecovery and is a question for the jury. CompareCoury Bros. Ranches, Inc. v. Ellsworth, 103 Ariz.515, 446 P.2d 458 (1968), with Nelson v. Cail, 120Ariz. 64, 583 P.2d 1384 (App. 1978).We see no reason why ordinary damage rules,applicable to all other tort cases, should not beapplicable to this situation. 5 By allowing the jury5In holding that ordinary damages rules are to beapplied, we do not indicate or imply that parents should beforced to mitigate damages by choosing abortion oradoption, or that the parents' failure to do so may beconsidered as an offset. The rules requiring mitigation ofdamages require only that reasonable measures be taken.Troppi v. Scarf, 31 Mich. App. at 258, 187 N.W.2d at 519;see also, Fairway Builders, Inc. v. Malouf Towers RentalCo., 124 Ariz. 242, 255, 603 P.2d 513, 526 (App. 1979).The decision not to conceive a child is quite different fromthe decision to abort or put the child up for adoption onceit has been conceived. "If parents are confronted in such asituation with choices which they consider to beunenviable alternatives, they should not be precluded fromto consider the future costs, both pecuniary andnon-pecuniary, of rearing and educating the child,we permit it to consider all the elements ofdamage on which the parents may presentevidence. By permitting the jury to consider thereason for the procedure and to assess and offsetthe pecuniary and non-pecuniary benefits whichwill inure to the parents by reason of theirrelationship to the child, we allow the jury todiscount those damages, thus reducing speculationand permitting the verdict to be based upon thefacts as they actually exist in each of theunforeseeable variety of situations which maycome before the court. We think this by far thebetter rule. The blindfold on the figure of justice isa shield from partiality, not from reality.Accordingly, we hold that the respondent trialjudge did not err in his ruling on the motion forsummary judgment. The prayer for relief isdenied.HOLOHAN, C.J., and HAYS, J., concur.GORDON, Vice Chief Justice (concurring inpart and dissenting in part)I would agree with the majority that healthcare providers should be responsible in damagesfor costs attendant to birth when they negligentlyperform a surgical sterilization. I would allowdamages for obstetrical care, pre and post partum;all costs of lying in; where appropriate, loss ofwages by the mother up to delivery and a shortperiod thereafter, and her pain and sufferingcaused by delivery. Also if this were a case wherethe child were born seriously retarded, deformed,or chronically ill, I too would hold the health careprovider responsible for the cost of lifetimesupport and care for the child. But here we aredealing with the birth of a normal and healthy,although undesired, child whose life I considerabove monetary value. At this point I mustrespectfully dissent.One of the most important functions of astate's highest appellate court is to guide andshepherd the growth of the common law of thatstate according to the Court's perception ofexisting public policy. This task is at once delicateand awesome. Emotion and sentimentality indeedrecovering damages because they select the most desirableof these unpalatable choices." Cockrum v. Baumgartner,95 Ill. 2d at 207, 69 Ill. Dec. at 175, 447 N.E.2d at 392(CLARK, J., dissenting); see also Kelly, Wrongful Life,Wrongful Birth and Justice in Tort Law, WASH. U. L.Q.919, 949-50 (1979).UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

166 3. DAMAGESshould not play a part in our Court's decision ofwhether to apply an existing principle of law to agiven set of facts. Were it otherwise the doctrineof stare decisis would be a fraud. But when, asmembers of this Court, we are called upon toextend an existing rule of damages to an entirelynew concept within our jurisprudence, especiallyone so fraught with subjective differences invalues, opinion and personal belief, we shouldtread cautiously, led by our most trusted senses,with both the goals of justice and the strengthsand weaknesses of our system equally in mind.The rule of damages established by themajority in this case may indeed be logical andlegally scientific. Logic and science may,however, lead to results at variance with publicpolicy. Although I have a very high degree ofrespect for our country's system of civil justice,and readily admit that our common law conceptsof tort liability have caused productsmanufactured in the United States to be among thesafest in the world, I feel that there are somehuman misfortunes that do not lend themselves tosolution by combat in the courtroom. Wrongfulpregnancy, in my opinion, is one of those. Ibelieve the rule allowing damage recovery beyondthe costs of birth in cases such as these wouldviolate what I consider the public policy of ourstate in several ways.(1) As is pointed out in the majority opinion,the prosecution of this type of action requiresparents to deny the worth of the child, thusplacing the values of the parents over those of thechild. Under the "benefits rule," a judgment forthe parents is a conclusion by the court that achild is not worth what it takes to raise him or her.This problem has been recognized by severalauthors who refer to such a child as an "emotionalbastard" when attempting to describe the stigmathat will attach to the child when he learns the truecircumstances of his upbringing. Boone v.Mullendore, 416 So. 2d 718 (Ala. 1982); Wilbur v.Kerr, 275 Ark. 239, 628 S.W.2d 568 (1982); Note,Wrongful Birth: A Child of Tort Comes of Age, 50U. CIN. L. REV. 65 (1981). In attempting tominimize the effect of a wrongful pregnancyaction on the child, some courts have addressedpart of their opinion to the child: "Since the childinvolved might some day read this decision as towho is to pay for his support and upbringing, weadd that we do not understand this complaint asimplying any present rejection or future strainupon the parent-child relationship. Rather we seeit as an endeavor on the part of clients and counselto determine the outer limits of physician liabilityfor failure to diagnose the fact of pregnancy. Thiscase and this complaint are well beyond suchlimits." Rieck v. Medical Protective Co. of FortWayne, Ind., 64 Wis. 2d 514, 520, 219 N.W.2d242, 245-46 (1974). See also Coleman v.Garrison, 349 A.2d 8 (Del. 1975) (advising thechild that the case was not founded on rejection ofhim as a person, but rather was a malpracticeaction "sounding for the outlimits of physicianliability." Id. at 14). One court has gone so far asto guarantee the parents' anonymity by captioningthe case Anonymous v. Hospital, 33 Conn.Sup.126, 366 A.2d 204 (1976). The above authoritiesindicate the practical effect that such litigationmay have on the child in future years. Althoughlater discovery of their parents' feelings towardthem may harm only a few children, I think a feware too many.(2) The decision in this matter will likelyimpinge upon the availability and costs ofsterilization surgery in Arizona. It is conceivablethat hereafter many health care providers willeither refuse to perform these procedures, or theywill become so expensive that only the wealthywill be able to afford them. If the intended resultof the majority is to lessen the number ofunwanted pregnancies by requiring more skill andcaution in the performance of sterilizationprocedures, I believe that this case will beself-defeating. There will probably be an increasein the number of unwanted pregnancies due to theincreased cost and relative unavailability ofsurgical sterilization.(3) Finally, it is well known that our courtsare already overcrowded with cases. The majorityhas by this decision created a new and expansiveconcept which will generate new and protractedlitigation. For example, in Cox v. Stretton, 77Misc. 2d 155, 352 N.Y.S.2d 834 (1974), theplaintiff became pregnant and bore a child afterher husband had received a vasectomy and wastold by the defendant that the procedure wouldresult in sterility. Aside from alleging causes ofaction in negligence and breach of contract, thecomplaint also set forth a cause of action onbehalf of the plaintiffs' infant children. The courtsummarized the cause of action as follows: "[Onbehalf of the infant children, the plaintiffs' allege]that they, as prior born children, by reason of thedefendant's negligence and breach of contract,will be deprived in the future of a portion of thecare, affection, training and financial support thateach would have received, except for the birth ofUNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 167their unexpected brother." Id. at 158-59, 352N.Y.S.2d at 839. Although the court refused torecognize this cause of action, the case indicatesthe scope of actions that may potentially bebrought in the aftermath of the decision handeddown by this Court today. Such actions areparticularly tempting both to the unscrupulous andthe unethical which will further add to the court'sburden.A further non-policy criticism that I have ofthe majority opinion is that it is not entirelyconsistent. If the Court is to allow some of thelogical principles of tort law to apply in this verysensitive area, then I feel that all of them shouldapply. The majority, however, fails to do so in atleast two instances. 1 First, in the usual lawsuit if aplaintiff has failed to mitigate his or her damages,this fact is allowed as an offset against recovery.In this case the Court, although eschewingemotions and sentiment, has for reasonsunexplained decided that the parents' failure tochoose abortion or adoption should not beconsidered in mitigation. The majority hasapparently decided that these methods ofmitigating damages are unreasonable as a matterof law. The question of the reasonableness of amethod of mitigating damages, however, isgenerally a question of fact to be decided by thetrier of fact. In some cases abortion or adoptionwill not be reasonable, while in others it will bereasonable. If we are going to open the door,logically, we should open it all the way. If theplaintiff parents - who have endeavored not tohave a child, pleaded his or her birth as an injuryto them, and claimed substantial damages - chosenot to take advantage of abortion or adoption, thedefendant should be permitted to establish that byso doing the parents unreasonably failed tomitigate their damages. Note, Wrongful BirthDamages: Mandate and Mishandling by JudicialFiat, 13 VAL. U. L. REV. 127, 164-170 (1978)[hereinafter cited as Wrongful Birth Damages];Note, Judicial Limitations on Damages1I point these inconsistencies out not because I believethe majority opinion should remedy them. Indeed, the ruleadopted by the majority but purged of theseinconsistencies would be even less desirable as a matter ofpolicy. I point them out in an attempt to demonstrate thatthe majority's attempt to avoid the moral and policyproblems associated with this area of the law by appealingto strict principles of tort law is flawed. I am convincedthat any such attempt would be flawed.Recoverable for the Wrongful Birth of a HealthyInfant, 68 VA. L. REV. 1311, 1328 (1982)[hereinafter cited as Limitations on Damages]; cf.Ziemba v. Sternberg, 45 A.D.2d 230, 357 N.Y.S.2d265 (1974) (question of whether option ofabortion was appropriate cannot be decided onmotion to dismiss).Second, the majority misappliesRESTATEMENT (SECOND) OF TORTS § 920 (1977).Section 920 specifically states that for a benefit tobe considered in mitigation of damages it must be"a special benefit to the interest of the plaintiffthat was harmed...." Furthermore, a comment to §920 explains how the "same interest" requirementoperates: "Limitation to same interest. Damagesresulting from an invasion of one interest are notdiminished by showing that another interest hasbeen benefited. Thus one who has harmedanother's reputation by defamatory statementscannot show in mitigation of damages that theother has been financially benefited from theirpublication ... unless damages are claimed forharm to pecuniary interests.... Damages for painand suffering are not diminished by showing thatthe earning capacity of the plaintiff has beenincreased by the defendant's act.... Damages to ahusband for loss of consortium are not diminishedby the fact that the husband is no longer under theexpense of supporting the wife." RESTATEMENT,supra, § 920 comment b. A proper application ofthe "same interest" requirement in a wrongfulpregnancy case would require that pecuniary harmof raising the child be offset only bycorresponding pecuniary benefit, and emotionalbenefits of the parent-child relationship be appliedas an offset only to corresponding emotionalharm. Custodio v. Bauer, 251 Cal. App. 2d 303,59 Cal. Rptr. 463 (1967); Comment, Robak v.United States: A Precedent-Setting DamageFormula For Wrongful Birth, 58 CHI.[-]KENT L.REV. 725, 746-47 (1982); Kashi, The Case of theUnwanted Blessing: Wrongful Life, 31 U. MIAMIL. REV. 1409, 1416-17 (1977); Wrongful BirthDamages, supra, at 158; Limitations on Damages,supra, at 1326.The majority's reasons for overlooking the"same interest" requirement of § 920 areunpersuasive. The majority argues that theeconomic burden and emotional distress ofrearing an unexpected child are so closely relatedthat they cannot be separated. This seemsinconsistent with the majority's expressedconfidence in the ability of jurors to assessintangible emotional and pecuniary factors.UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

168 3. DAMAGESThe majority also argues that because the"benefits rule" of § 920 is designed to preventunjust enrichment, the "same interest"requirement of the rule should not be applied. Thesame argument could be made in any case andamounts to little more than an argument fordeleting the "same interest" requirement from the"benefits rule."I am convinced that the proper balancebetween strict tort law principles and sound publicpolicy would be struck by precluding recovery ofthe future costs of raising and educating the child.CAMERON, J., concur.HARBESON v. PARKE-DAVIS98 Wash. 2d 460, 656 P.2d 483 (1983)PEARSON, JusticeThis case requires us to decide whether torecognize two new causes of action: "wrongfulbirth" and "wrongful life." We hold that, subject tothe limitations set forth in this opinion, suchactions may be brought in this state.Plaintiffs brought against the United States anaction for medical malpractice and failure toinform of the material risks of treatment. Theaction was based upon medical care that plaintiffJean Harbeson received from physiciansemployed by the United States at Madigan ArmyMedical Center in 1972 and 1973. The case wastried during the week of November 30, 1981, inthe United States District Court for the WesternDistrict of Washington, pursuant to the FederalTort Claims Act, 28 U.S.C. §§ 2674-2680, §1346(b), and § 2402 (1976). After hearing all theevidence and before giving judgment, the DistrictCourt, on its own motion, certified to this courtquestions of law pursuant to R.C.W. 2.60.020 andRAP 16.16. The District Court formulated fromthe evidence presented at trial a number offindings of fact and conclusions of law. Thesefindings and conclusions comprise the recordupon which we must resolve the issues certified.The District Court found as follows. PlaintiffLeonard Harbeson has at all material times been amember of the United States Air Force. In 1970,while Mr. Harbeson was stationed at MalstromAir Force Base, his wife Jean conceived their firstchild. In December 1970, Mrs. Harbeson learned,after suffering a grand mal seizure, that she wasan epileptic. To control Mrs. Harbeson's seizures,physicians at the Air Force Base prescribedDilantin, an anticonvulsant drug, which was thefirst choice of doctors in the treatment of epilepsy.Mrs. Harbeson took Dilantin during the remainderof her pregnancy and in March 1971 gave birth toMichael, a healthy and intelligent child.After Michael's birth, Mr. Harbeson wastransferred to McChord Air Force Base, nearTacoma. The medical facility serving the base wasMadigan Army Medical Center. In May 1972,Mrs. Harbeson went to Madigan for evaluationand treatment of her epilepsy. A neurologist atMadigan prescribed Dilantin to control herseizures. Between November 1972 and July 1973,the Harbesons informed three doctors at Madiganthat they were considering having other children,and inquired about the risks of Mrs. Harbeson'staking Dilantin during pregnancy. Each of thethree doctors responded that Dilantin could causecleft palate and temporary hirsutism. None of thedoctors conducted literature searches or consultedother sources for specific information regardingthe correlation between Dilantin and birth defects.The Harbesons relied on the assurances of theMadigan doctors and thereafter Mrs. Harbesonbecame pregnant twice, giving birth to Elizabethin April 1974, and Christine in May 1975.Throughout these pregnancies, Mrs. Harbesoncontinued to take Dilantin as prescribed by theMadigan doctors.Elizabeth and Christine are the minorplaintiffs in this action, and are represented byLeonard Harbeson, as guardian ad litem. Elizabethand Christine have been diagnosed as sufferingfrom "fetal hydantoin syndrome." They sufferfrom mild to moderate growth deficiencies, mildto moderate developmental retardation, wide-seteyes, lateral ptosis (drooping eyelids), hypoplasiaof the fingers, small nails, low-set hairline, broadnasal ridge, and other physical and developmentaldefects. Had Mr. and Mrs. Harbeson beeninformed of the potential birth defects associatedwith the use of Dilantin during pregnancy, theywould not have had any other children.The District Court's conclusions of lawinclude the following.4. Dilantin was a proximate cause ofthe defects and anomalies suffered byElizabeth and Christine Harbeson.UNIVERSITY OF ARIZONA HEALTH SCIENCES CENTER V. SUPERIOR COURT

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 1695. The physicians at Madigan werethe agents of the Defendant UnitedStates of America, and said Defendant isresponsible for the acts and omissions ofthe Madigan physicians.6. Plaintiff, Leonard Harbeson, is theduly appointed guardian ad litem for theminor plaintiffs herein, Elizabeth andChristine Harbeson, and is authorized tobring the present action on their behalf.7. The physicians at Madigan failedto conduct a literature search or toconsult other sources in regard to theeffects of Dilantin during pregnancy,even though the plaintiffs Leonard andJean Harbeson specifically asked allthree Madigan physicians of possiblebirth defects associated with the mother'sconsumption of Dilantin duringpregnancy. Said acts of the Madiganphysicians:a. breached the standard of carefor the average physician actingunder the same or similarcircumstances, and the physicianswere thereby negligent;b. were not reasonably prudent,and therefore, were negligent.8. An adequate literature search, orconsulting other sources, would haveyielded such information of materialrisks associated with Dilantin inpregnancy that reasonably prudentpersons in the position of the Harbesonswould attach significance to such risks indeciding whether to have furtherchildren.9. Each of the four HarbesonPlaintiffs has sustained permanent andsevere damages and injuries past, presentand future, as a direct and proximateresult of the negligence of the Madiganphysicians.10. Plaintiffs are entitled to recoverdamages from the Defendant UnitedStates of America.* * *We have now arrived at the crucial issue:Does the wrongful birth action as formulatedearlier in this opinion coincide with theseprinciples by which we impose liability onproviders of health care?First, we measure the proposed wrongfulbirth action against the traditional concepts ofduty, breach, injury, and proximate cause. Thecritical concept is duty. The core of our decisionis whether we should impose upon health careproviders a duty correlative to parents' right toprevent the birth of defective children.Until recently, medical science was unable toprovide parents with the means of predicting thebirth of a defective child. Now, however, theability to predict the occurrence and recurrence ofdefects attributable to genetic disorders hasimproved significantly. Parents can determinebefore conceiving a child whether their genetictraits increase the risk of that child's sufferingfrom a genetic disorder such as Tay-Sachs diseaseor cystic fibrosis. After conception, newdiagnostic techniques such as amniocentesis andultrasonography can reveal defects in the unbornfetus. See generally, Peters and Peters, WrongfulLife: Recognizing the Defective Child's Right to aCause of Action, 18 DUQ. L. REV. 857, 873-75(1980). Parents may avoid the birth of thedefective child by aborting the fetus. The difficultmoral choice is theirs. Roe v. Wade, 410 U.S. 113,93 S. Ct. 705, 35 L. Ed. 2d 147 (1973). We mustdecide, therefore, whether these developmentsconfer upon potential parents the right to prevent,either before or after conception, the birth of adefective child. Are these developments the firststeps towards a "Fascist Orwellian societalattitude of genetic purity," Gildiner v. ThomasJefferson Univ. Hosp., 451 F. Supp. 692, 695(E.D. Pa. 1978), or Huxley's brave new world?Or do they provide positive benefits to individualfamilies and to all society by avoiding the vastemotional and economic cost of defectivechildren?We believe we must recognize the benefits ofthese medical developments and therefore we holdthat parents have a right to prevent the birth of adefective child and health care providers a dutycorrelative to that right. This duty requires healthcare providers to impart to their patients materialinformation as to the likelihood of futurechildren's being born defective, to enable thepotential parents to decide whether to avoid theconception or birth of such children. If medicalprocedures are undertaken to avoid the conceptionor birth of defective children, the duty alsorequires that these procedures be performed withdue care. This duty includes, therefore, therequirement that a health care provider whoHARBESON V. PARKE-DAVIS

170 3. DAMAGESundertakes to perform an abortion use reasonablecare in doing so. The duty does not, however,affect in any way the right of a physician to refuseon moral or religious grounds to perform anabortion. Recognition of the duty will "promotesocietal interests in genetic counseling andprenatal testing, deter medical malpractice, and atleast partially redress a clear and undeniablewrong." (Footnotes omitted.) Rogers, WrongfulLife and Wrongful Birth: Medical Malpractice inGenetic Counseling and Prenatal Testing, 33 S.C.L. REV. 713, 757 (1982) (hereinafter cited asRogers).We find persuasive the fact that all otherjurisdictions to have considered this issue haverecognized such a duty. These decisions areconveniently collected in Rogers, at 739-52, andwe need not list them here.Having recognized that a duty exists, we havetaken the major step toward recognizing thewrongful birth action. The second element of thetraditional tort analysis is more straightforward.Breach will be measured by failure to conform tothe appropriate standard of skill, care, or learning.R.C.W. 4.24.290; R.C.W. 7.70.040. Gates v.Jensen, 92 Wash. 2d 246, 595 P.2d 919 (1979).More problematical is the question of whetherthe birth of a defective child represents an injuryto the parents. The only case to touch on thisquestion in this state did not resolve it. Ball v.Mudge, 64 Wash. 2d 247, 250, 391 P.2d 201(1964). However, it is an inevitable consequenceof recognizing the parents' right to avoid the birthof a defective child that we recognize that thebirth of such a child is an actionable injury. Thereal question as to injury, therefore, is not theexistence of the injury, but the extent of thatinjury. In other words, having recognized that thebirth of the child represents an injury, how do wemeasure damages? Other courts to haveconsidered the issue have found this questiontroublesome. In particular, the New JerseySupreme Court has taken a different approach tothe question on each of the three occasions it hasconfronted it. In Gleitman v. Cosgrove, 49 N.J. 22,227 A.2d 689 (1967), the court rejected thewrongful birth action altogether. One of thereasons for the rejection was the difficulty ofmeasuring damages. 1 When the court next1"[A] court would have to evaluate the ... intangible,unmeasurable, and complex human benefits ofconsidered the issue in Berman v. Allan, 80 N.J.421, 404 A.2d 8 (1979), it upheld an action forwrongful birth and permitted damages for mentalanguish. However, the court refused to allowdamages to compensate for the medical and othercosts incurred in raising, educating, andsupervising the child. The court retreated fromthis position in the third case, Schroeder v. Perkel,87 N.J. 53, 432 A.2d 834 (1981), and allowed theparents damages for certain medical expensesrelated to the child's affliction.Other courts to have considered the issueexhibit widely divergent approaches. Comment,Wrongful Birth Damages: Mandate andMishandling by Judicial Fiat, 13 VAL. U. L. REV.127 (1978); Rogers, at 750-51. 2More certain guidance than that provided bydecisions of other jurisdictions on the issue ofdamages is provided by the Legislature in R.C.W.4.24.010. 3 This statute provides that, in an actionby parents for injury to a child, compensation maybe recovered for four types of damages: medical,hospital, and medication expenses, loss of themotherhood and fatherhood and weigh these against thealleged emotional and money injuries. Such a proposedweighing is ... impossible to perform". 49 N.J. at 29, 227A.2d 689.2"Courts generally allow the extraordinary expensesrelating to the child's defect that must be borne by theparents, (e.g., Jacobs v. Theimer, 519 S.W.2d 846 (Tex.1975); Dumer v. St. Michael's Hosp., 69 Wis. 2d 766, 233N.W.2d 372 (1975)) and some courts have compensatedfor the parents' pain and suffering or mental anguish.(Schroeder v. Perkel, supra.) One court has allowed allexpenses incident to the care of the child, withoutdiscounting those expenses not directly related to thechild's defect that would be necessary for a normal child(Robak v. United States, 658 F.2d 471 (7th Cir.1981))."Rogers, at 751. See also Becker v. Schwartz, 46 N.Y.2d401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978) (allowingpecuniary but denying emotional damages); Speck v.Finegold, 497 Pa. 77, 439 A.2d 110 (1981) (allowingpecuniary and emotional damages).3RCW 4.24.010 provides, in part: "The mother orfather or both may maintain an action as plaintiff for theinjury or death of a minor child, or a child on whom either,or both, are dependent for support...."... In such an action, in addition to damages for medical,hospital, medication expenses, and loss of services andsupport, damages may be recovered for the loss of loveand companionship of the child and for injury to ordestruction of the parent-child relationship in such amountas, under all the circumstances of the case, may be just."HARBESON V. PARKE-DAVIS

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 171child's services and support, loss of the child'slove and companionship, and injury to theparent-child relationship. Recovery of damagesfor loss of companionship of the child, or injuryor destruction of the parent-child relationship isnot limited to the period of the child's minority.Balmer v. Dilley, 81 Wash. 2d 367, 502 P.2d 456(1972). We have held that this section allowsrecovery for parental grief, mental anguish, andsuffering. Hinzman v. Palmanteer, 81 Wash. 2d327, 501 P.2d 1228 (1972). The statute is notdirectly in point because a wrongful birth claimdoes not allege injury to the child as the cause ofthe parents' injury; rather it alleges the birth of thechild is the cause of the injury. Nevertheless, thestatute reflects a policy to compensate parents notonly for pecuniary loss but also for emotionalinjury. There appears to be no compelling reasonthat policy should not apply in wrongful birthactions. Accordingly, we hold that recovery mayinclude the medical, hospital, and medicationexpenses attributable to the child's birth and to itsdefective condition, and in addition damages forthe parents' emotional injury caused by the birthof the defective child. In considering damages foremotional injury, the jury should be entitled toconsider the countervailing emotional benefitsattributable to the birth of the child.RESTATEMENT (SECOND) OF TORTS § 920 (1977).Rogers, at 751-52; Eisbrenner v. Stanley, 106Mich. App. 357, 308 N.W.2d 209 (1981);Kingsbury v. Smith, N.H., 442 A.2d 1003 (1982).The final element to be considered is whethera breach of duty can be a proximate cause of thebirth of the child. Proximate cause must beestablished by, first, a showing that the breach ofduty was a cause in fact of the injury, and, second,a showing that as a matter of law liability shouldattach. King v. Seattle, 84 Wash. 2d 239, 249, 525P.2d 228 (1974). Cause in fact can be establishedby proving that but for the breach of duty, theinjury would not have occurred. King v. Seattle,supra. The legal question whether liability shouldattach is essentially another aspect of the policydecision which we confronted in deciding whetherthe duty exists. We therefore hold that, as a matterof law in wrongful birth cases, if cause in fact isestablished, the proximate cause element issatisfied. This conclusion is consistent with thedecisions of those other jurisdictions which haveaccepted wrongful birth actions, e.g., Robak v.United States, 658 F.2d 471 (7th Cir. 1981).The action for wrongful birth, therefore, fitswithin the conceptual framework of our law ofnegligence. An action in negligence claimingdamages for the birth of a child sufferingcongenital defects may be brought in this state.We now turn to answer the first issue certifiedto us by the District Court. Our analysis leads usto conclude that plaintiffs Leonard and JeanHarbeson may maintain a cause of action for thewrongful births of Elizabeth and Christine. Wehave held above that physicians have a duty toprotect their patient's right to prevent the birth ofdefective children. This duty requires physiciansto act in accordance with the appropriate standardof care. The special standard of care formulated inHelling v. Carey, 83 Wash. 2d 514, 519 P.2d 981(1974), had not been promulgated at the time thealleged negligence of the physicians occurred in1972 and 1973. The standard which applied at thattime was set forth in Hayes v. Hulswit, 73 Wash.2d 796, 440 P.2d 849 (1968), the standard of the"average practitioner." The District Courtconcluded that the physicians' failure to conduct aliterature search breached the standard of care ofthe "average physician." (Conclusion of law 7a.)The physicians therefore breached the duty of carethey owed to Mr. and Mrs. Harbeson.Moreover, as our analysis above indicates, thebirth of children suffering congenital defectsconstitutes an actionable injury to the parents. Thethree elements of duty, breach, and injury aretherefore established.The final element which must be proved isthat the negligence of the physicians was aproximate cause of this injury. The District Courtconcluded that Dilantin was the proximate causeof the birth defects suffered by the children(conclusion of law 4), and that an adequateliterature search would have revealed the risksassociated with Dilantin (conclusion of law 8).The court made a finding of fact that had theHarbesons been informed of those risks theywould not have had any other children. Theseconclusions and findings establish that the breachof duty was a cause in fact of the birth ofElizabeth and Christine, and therefore a proximatecause of the injury.The parents may therefore recover damagesfor the wrongful births of Elizabeth and Christine.These damages may include pecuniary damagesfor extraordinary medical, educational, andsimilar expenses attributable to the defectivecondition of the children. In other words, theparents should recover those expenses in excess ofthe cost of the birth and rearing of two normalchildren. In addition, the damages mayHARBESON V. PARKE-DAVIS

172 3. DAMAGEScompensate for mental anguish and emotionalstress suffered by the parents during each child'slife as a proximate result of the physicians'negligence. Any emotional benefits to the parentsresulting from the birth of the child should beconsidered in setting the damages. (Implicit in thisconclusion, in response to the District Court'squestion 2a, is that neither R.C.W. 4.24.290 norR.C.W. 4.24.010 applies directly to the claims ofthe Harbesons.)Mr. and Mrs. Harbeson also have a cause ofaction on a theory of informed consent. The healthcare which gives rise to the cause of actionoccurred between November 1972 and July 1973.At that time, the doctrine of informed consent wasgoverned by ZeBarth v. Swedish Hosp. Med. Ctr.,81 Wash. 2d 12, 499 P.2d 1 (1972). The doctrinerequired the physicians, in treating Mrs. Harbesonwith Dilantin, to exercise reasonable care indisclosing "grave risks" of that treatment. Itappears from the findings and conclusions of theDistrict Court that the potential teratogeneticeffects of Dilantin would constitute a "grave risk"of which Mrs. Harbeson ought to have beeninformed in order to intelligently exercise herjudgment whether to have further children. Failureto impart the information renders the physiciansliable for injuries proximately caused by thefailure. As we explained in our discussion of thenegligence action, the failure to inform was aproximate cause of the births of the minorplaintiffs. Mr. and Mrs. Harbeson are entitled todamages for pecuniary and emotional injuriesattributable to those births.Wrongful LifeIn a wrongful life claim,[t]he child does not allege that thephysician's negligence caused the child'sdeformity. Rather, the claim is that thephysician's negligence - his failure toadequately inform the parents of the risk -has caused the birth of the deformedchild. The child argues that but for theinadequate advice, it would not have beenborn to experience the pain and sufferingattributable to the deformity. Comments,"Wrongful Life": The Right Not To BeBorn, 54 TUL. L. REV. 480, 485 (1980).To this definition we would add that thephysician's negligence need not be limited tofailure to adequately inform the parents of therisk. It may also include negligent performance ofa procedure intended to prevent the birth of adefective child: sterilization or abortion.Wrongful life is the child's equivalent of theparents' wrongful birth action. However, whereaswrongful birth actions have apparently beenaccepted by all jurisdictions to have consideredthe issue, wrongful life actions have been receivedwith little favor. There is an excellent discussionof the law relating to recognition of an action forwrongful life in Curlender v. Bio-Science Labs,106 Cal. App. 3d 811, 165 Cal. Rptr. 477 (1980).The action has been rejected in Alabama, Elliott v.Brown, 361 So. 2d 546 (Ala. 1978); New Jersey,Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979);New York, e.g., Becker v. Schwartz, 46 N.Y.2d401, 386 N.E.2d 807, 413 N.Y.S.2d 895 (1978);South Carolina, Phillips v. United States, 508 F.Supp. 537 (D.S.C. 1980); Texas, Jacobs v.Theimer, 519 S.W.2d 846 (Tex. 1975); andWisconsin, Dumer v. St. Michael's Hosp., 69 Wis.2d 766, 233 N.W.2d 372 (1975).Two other jurisdictions have come closer toembracing the cause of action. In Pennsylvania, atrial court decision that the action was not legallycognizable was affirmed only as a result of theeven division of the Supreme Court. Speck v.Finegold, 497 Pa. 77, 439 A.2d 110 (1981). TheSupreme Court of California rejected the claim ofa child for general damages, but allowed therecovery of extraordinary medical expensesoccasioned by the child's defect. Turpin v. Sortini,31 Cal. 3d 220, 643 P.2d 954, 965, 182 Cal. Rptr.337, 348 (1982). The court acknowledges that "itwould be illogical and anomalous to permit onlyparents, and not the child, to recover for the costof the child's own medical care." 4 We agree. Thechild's need for medical care and other special4The court goes on to say: "If such a distinctionwere established, the afflicted child's receipt of necessarymedical expenses might well depend on the whollyfortuitous circumstance of whether the parents areavailable to sue and recover such damages or whether themedical expenses are incurred at a time when the parentsremain legally responsible for providing such care."Realistically, a defendant's negligence in failing todiagnose an hereditary ailment places a significant medicaland financial burden on the whole family unit. Unlike thechild's claim for general damages, the damage here is bothcertain and readily measurable. Furthermore, in manyinstances these expenses will be vital not only to thechild's well-being but to his or her very survival."(Footnote omitted.) Turpin v. Sortini, at 348, 182 Cal.Rptr. 337, 643 P.2d 954.HARBESON V. PARKE-DAVIS

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 173costs attributable to his defect will notmiraculously disappear when the child attains hismajority. In many cases, the burden of thoseexpenses will fall on the child's parents or thestate. Rather than allowing this to occur byrefusing to recognize the cause of action, weprefer to place the burden of those costs on theparty whose negligence was in fact a proximatecause of the child's continuing need for suchspecial medical care and training.We hold, accordingly, that a child maymaintain an action for wrongful life in order torecover the extraordinary expenses to be incurredduring the child's lifetime, as a result of the child'scongenital defect. Of course, the costs of suchcare for the child's minority may be recoveredonly once. Wooldridge v. Woolett, 96 Wash. 2d659, 666, 638 P.2d 566 (1981). If the parentsrecover such costs for the child's minority in awrongful birth action, the child will be limited tothe costs to be incurred during his majority.The analysis whereby we arrived at ourholding is similar to that which we used inconsidering the parents' wrongful birth action. It isconvenient therefore to consider wrongful lifeaccording to the four traditional tort concepts ofduty, breach, injury, and proximate cause.We begin with duty. The first potentialdifficulty with this element of a wrongful lifeaction is that in every case the alleged negligentact will occur before the birth of the child, and inmany cases (including the one before us) beforethe child is conceived. Prenatal injuries to a fetushave been recognized as actionable in this statefor 20 years. Seattle-First Nat'l Bank v. Rankin, 59Wash. 2d 288, 367 P.2d 835 (1962). We have notpreviously considered whether a duty could existprior to conception. Other courts have recognizedsuch a preconception duty. E.g., Turpin v. Sortini,supra, and authorities cited therein. We now holdthat a duty may extend to persons not yetconceived at the time of a negligent act oromission. Such a duty is limited, like any otherduty, by the element of foreseeability. Hunsley v.Giard, 87 Wash. 2d 424, 435-36, 553 P.2d 1096(1976). 5 A provider of health care, or anyone else,will be liable only to those persons foreseeablyendangered by his conduct. In most wrongful lifecases, it should not be difficult to establishforeseeability. In the case before us, for example,the parents informed the defendant physicians oftheir intention to have further children. Suchfuture children were therefore foreseeablyendangered by defendants' failure to takereasonable steps to determine the danger ofprescribing Dilantin for their mother.One reason for the reluctance of otherjurisdictions to recognize a duty to the childappears to be the attitude that to do so wouldrepresent a disavowal of the sanctity of aless-than-perfect human life. Berman v. Allan, 80N.J. at 430, 404 A.2d 8. This reasoning wasrejected in Turpin v. Sortini, at 233, 182 Cal. Rptr.337, 643 P.2d 954.[I]t is hard to see how an award ofdamages to a severely handicapped orsuffering child would "disavow" thevalue of life or in any way suggest thatthe child is not entitled to the fullmeasure of legal and nonlegal rights andprivileges accorded to all members ofsociety.We agree.Furthermore, the policies which persuaded us(along with several other jurisdictions) torecognize parents' claims of wrongful birth applyequally to recognition of claims of wrongful life.Imposition of a corresponding duty to the childwill similarly foster the societal objectives ofgenetic counseling and prenatal testing, and willdiscourage malpractice. In a footnote, the court inTurpin v. Sortini wrote at 349 n.15, 182 Cal. Rptr.337, 643 P.2d 954:Permitting recovery of theseextraordinary out-of-pocket expenseswhether the cost is to be borne by theparents or the child should also helpensure that the available tort remedies inthis area provide a comprehensive andconsistent deterrent to negligent conduct.In addition to providing a comprehensive and5"The element of foreseeability plays a large part indetermining the scope of defendant's duty. Wells v.Vancouver, 77 Wash. 2d 800, 467 P.2d 292 (1970). Thepoint is summarized by the Hawaii Supreme Court: `[A]further limitation on the right of recovery, as in allnegligence cases, is that the defendant's obligation torefrain from particular conduct is owed only to those whoare foreseeably endangered by the conduct and only withrespect to those risks or hazards whose likelihood madethe conduct unreasonably dangerous.' Rodrigues v. State,52 Hawaii 156, 174, 472 P.2d 509 (1970)." Hunsley v.Giard, 87 Wash. 2d at 435-36, 553 P.2d 1096.HARBESON V. PARKE-DAVIS

174 3. DAMAGESconsistent deterrent to malpractice, recognition ofthe duty will provide more comprehensive andconsistent compensation for those injured by suchmalpractice (at least for extraordinaryout-of-pocket expenses) than would be availablewere the duty confined to the parents. In order toachieve these ends, therefore, we recognize theexistence of a duty to the unborn or unconceivedchild.This duty will be breached by failure toobserve the appropriate standard of care. SeeRogers at 332-33.The most controversial element of theanalysis in other jurisdictions has been injury andthe extent of damages. The New Jersey SupremeCourt gave two reasons for rejecting a child'swrongful life claim in Berman v. Allan. First, thequantum of damages in such an action would beimpossible to compute because the trier of factwould be required to "measure the difference invalue between life in an impaired condition andthe `utter void of nonexistence.' " 80 N.J. at 427,404 A.2d 8. Second, to recognize life itself as anactionable injury would be inimical to deeply heldbeliefs that life is more precious than nonlife.We agree with the New Jersey court thatmeasuring the value of an impaired life ascompared to nonexistence is a task that is beyondmortals, whether judges or jurors. However, wedo not agree that the impossibility of valuing lifeand nonexistence precludes the action altogether.General damages are certainly beyondcomputation. They are therefore incapable ofsatisfying the requirement of Washington law thatdamages be established with "reasonablecertainty." Dyal v. Fire Companies Adj. Bur., Inc.,23 Wash. 2d 515, 521, 161 P.2d 321 (1945). Butone of the consequences of the birth of the childwho claims wrongful life is the incurring ofextraordinary expenses for medical care andspecial training. These expenses are calculable.Thus, although general damages are impossible toestablish with reasonable certainty, such specialdamages can be proved. In respect of specialdamages, therefore, the objection advanced inBerman v. Allan is not persuasive.The second objection advanced by the NewJersey court in Berman v. Allan we have alreadydiscussed. Suffice it to say here that we do notagree that requiring a negligent party to providethe costs of health care of a congenitally deformedchild is a disavowal of the sanctity of human life.The final element which requiresconsideration is proximate cause.The causation issue in a wrongful life claim iswhether "[b]ut for the physician's negligence, theparents would have avoided conception, oraborted the pregnancy, and the child would nothave existed." Comments, 54 TUL. L. REV. at 491.Some early cases advanced a proximate causeargument based on the fact that the negligence ofthe physician did not cause the defect from whichthe plaintiff suffered; rather, the negligence was infailing to disclose the existence of the defect. E.g.,Gleitman v. Cosgrove, 49 N.J. 22, 27-28, 227 A.2d689 (1967). This argument does not convince us.It is clear in the case before us that, were it not forthe negligence of the physicians, the minorplaintiffs would not have been born, and wouldconsequently not have suffered fetal hydantoinsyndrome. More particularly, the plaintiffs wouldnot have incurred the extraordinary expensesresulting from that condition. There appears to beno reason a finder of fact could not find that thephysicians' negligence was a proximate cause ofthe plaintiffs' injuries.For these reasons, we hold that a claim forwrongful life may be maintained in this state. Wetherefore answer the District Court's questions 3and 4, as follows.Elizabeth and Christine Harbeson maymaintain a wrongful life action. We have held thatthe physicians' duty to inform the parents of therisks associated with Dilantin extends to theunconceived children. The District Court held thatthis standard was breached by the Madiganphysicians in failing to conduct a literature search.The minor plaintiffs suffer an actionable injury tothe extent that they require special medicaltreatment and training beyond that required bychildren not afflicted with fetal hydantoinsyndrome. They may recover damages to theextent of the cost of such treatment and training.The standard appropriate to the conduct of thephysicians is the standard of the "averagepractitioner." R.C.W. 4.24.290 does not apply tothe Harbesons' claim.BRACHTENBACH, C.J., and DOLLIVER,ROSELLINI, WILLIAM H. WILLIAMS,STAFFORD, DIMMICK, UTTER and DORE, JJ.,concur.Questions and Notes1. Based on Harbeson, what do you thinkwould be the outcome in Washington in a caseHARBESON V. PARKE-DAVIS

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 175where the doctor negligently failed to preventpregnancy, but the parents gave birth to a normal,healthy child? See McKernan v. Aasheim, 102Wash. 2d 411, 687 P.2d 850 (1984).2. In Wilson v. Kuenzi, 751 S.W.2d 741,744-45 (Mo. 1988), the defendant doctor was suedafter the parents gave birth to a child with Downsyndrome. The parents claimed that he negligentlyfailed to advise them to obtain an amniocentesistest, which would have afforded them anopportunity to terminate the pregnancy. The courtdismissed the claim, holding, "The heart of theproblem in these cases is that the physician cannotbe said to have caused the defect. The disorder isgenetic and not the result of any injury negligentlyinflicted by the doctor." Would you agree?3. Minnesota enacted a statute thatspecifically rejects any claim for wrongful life.MINN. STAT. ANN. § 145.424. See also Hickman v.Group Health Plan, Inc., 396 N.W.2d 10 (Minn.1986) (holding statute constitutional).4. In Bopp, Bostrom & McKinney, The"Rights" and "Wrongs" of Wrongful Birth andWrongful Life: A Jurisprudential Analysis of BirthRelated Torts, 27 Duq. L. Rev. 461 (1989), theauthors note the use of two other terms, wrongfulconception and wrongful pregnancy, which referto claims for the pregnancy and delivery of thechild, as distinct from the subsequentchild-rearing costs. However, the term wrongfulbirth is often used generically to refer to claimsbrought by the parents for the birth of a child who,but for someone's negligence, would not havebeen born.5. Much of the commentary about the impactof wrongful birth / wrongful life claims has beennegative. See, for example, Wendy F. Hensel, TheDisabling Impact of Wrongful Birth and WrongfulLife Actions, 40 Harv. C.R.-C.L. L. Rev. 141(2005). One court went so far as to compare thelogic of wrongful life claims to the eugenicsphilosophy of Nazi Germany, which encouragedin some cases required the sterlization orelimination of the “unfit.” Taylor v. Kurapati, 600N.W.2d 670 (Mich. App. 1999). Is this a faircomparison?6. Cases involving wrongful birth / wrongfullife claims continue to generate scholarlycommentary: Thomas A. Burns, When Life Is anInjury: an Economic Approach to Wrongful LifeLawsuits, 52 Duke L.J. 807 (2003); Deana A.Pollard, Wrongful Analysis in Wrongful LifeJurisprudence, 55 Ala. L. Rev. 327 (2004);Jennifer R. Granchi, The Wrongful Birth Tort: aPolicy Analysis and the Right to Sue for anInconvenient Child 43 S. Tex. L. Rev. 1261(2002); Katherine Say, Wrongful Birth-preservingJustice for Women and Their Families, 28 Okla.City U. L. Rev. 251 (2003).3. Bystander InjuriesIntroductory Note. As noted earlier, someclaims for emotional distress arise from anegligent act toward the plaintiff that doesn'tcause physical harm (for example, Johnson v.State of New York or Molien v. Kaiser FoundationHospitals). Here, however, we have a case ofsevere physical injury to one individual - sosevere that it causes a related party (typically afamily member) to seek damages for emotionaldistress. After you have read these cases, youshould consider whether such "parasitic" claimsare more or less deserving of recovery than thosewhere no physical harm occurs.DILLON v. LEGG68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d912 (1968)[Plaintiff was the mother of two girls. Whilethe girls were crossing a street defendant'sautomobile collided with one of them, killing her;the other girl was physically unhurt. Thecomplaint alleged that plaintiff and the survivingdaughter suffered severe emotional shock, withresulting physical injury. The daughter allegedshe was within the "zone of danger" - the areawhere she might have apprehended physicalcontact from the defendant's automobile - but themother admitted she witnessed the accident froma place of safety. The trial court grantedsummary judgment as to the mother's complaint,following the rule announced in Amaya v. HomeIce, 379 P.2d 513 (Cal. 1963) that damages foremotional loss could only be recovered whereplaintiff was within the zone of danger. TheHARBESON V. PARKE-DAVIS

176 3. DAMAGESmother appealed.]TOBRINER, Justice* * *The posture of this case differs from that ofAmaya v. Home Ice, Fuel & Supply Co. (1963) 59Cal. 2d 295, 298, 29 Cal. Rptr. 33, 35, 379 P.2d513, 515, which involved "fright or nervousshock [with consequent bodily illness] inducedsolely by ... apprehension of negligently causeddanger or injury to a third person" because thecomplaint here presents the claim of theemotionally traumatized mother, who admittedlywas not within the zone of danger, as contrastedwith that of the sister, who may have been withinit. The case thus illustrates the fallacy of the rulethat would deny recovery in the one situation andgrant it in the other. In the first place, we canhardly justify relief to the sister for trauma whichshe suffered upon apprehension of the child'sdeath and yet deny it to the mother merelybecause of a happenstance that the sister wassome few yards closer to the accident. The instantcase exposes the hopeless artificiality of thezone-of-danger rule. In the second place, to restupon the zone-of-danger rule when we haverejected the impact rule becomes even lessdefensible. We have, indeed, held that impact isnot necessary for recovery (Cook v. Maier (1939)33 Cal. App. 2d 581, 584, 92 P.2d 434.) Thezone-of-danger concept must, then, inevitablycollapse because the only reason for therequirement of presence in that zone lies in thefact that one within it will fear the danger ofimpact. At the threshold, then, we point to theincongruity of the rules upon which any rejectionof plaintiff's recovery must rest.We further note, at the outset, that defendanthas interposed the defense that the contributorynegligence of the mother, the sister, and the childcontributed to the accident. If any such defense issustained and defendant found not liable for thedeath of the child because of the contributorynegligence of the mother, sister or child, we donot believe that the mother or sister shouldrecover for the emotional trauma which theyallegedly suffered. In the absence of the primaryliability of the tortfeasor for the death of thechild, we see no ground for an independent andsecondary liability for claims for injuries by thirdparties. The basis for such claims must beadjudicated liability and fault of defendant; thatliability and fault must be the foundation for thetortfeasor's duty of due care to third parties who,as a consequence of such negligence, sustainemotional trauma.We turn then to an analysis of the concept ofduty, which, as we have stated, has furnished theground for the rejection of such claims as theinstant one. Normally the simple facts ofplaintiff's complaint would establish a cause ofaction: the complaint alleges that defendant drovehis car (1) negligently, as a (2) proximate resultof which plaintiff suffered (3) physical injury.Proof of these facts to a jury leads to recovery indamages; indeed, such a showing represents aclassic example of the type of accident withwhich the law of negligence has been designed todeal.The assertion that liability must neverthelessbe denied because defendant bears no "duty" toplaintiff "begs the essential question - whether theplaintiff's interests are entitled to legal protectionagainst the defendant's conduct.... It [duty] is ashorthand statement of a conclusion, rather thanan aid to analysis in itself.... But it should berecognized that `duty' is not sacrosanct in itself,but only an expression of the sum total of thoseconsiderations of policy which lead the law to saythat the particular plaintiff is entitled toprotection." (PROSSER, LAW OF TORTS, supra, atpp. 332-333.)The history of the concept of duty in itselfdiscloses that it is not an old and deep-rooteddoctrine but a legal device of the latter half of thenineteenth century designed to curtail the fearedpropensities of juries toward liberal awards. "Itmust not be forgotten that `duty' got into our lawfor the very purpose of combatting what was thenfeared to be a dangerous delusion (perhapsespecially prevalent among juries imbued withpopular notions of fairness untempered byparamount judicial policy), viz. that the law mightcountenance legal redress for all foreseeableharm." (FLEMING, AN INTRODUCTION TO THE LAWOF TORTS (1967) p. 47.)Indeed, the idea of court-imposed restrictionson recovery by means of the concept of "duty"contrasted dramatically with the preceding legalsystem of feudal society. 1 In the enclosed feudal1"The gradual development of the law in the matter ofcivil liability is discussed and traced by the late SirWilliam Holdsworth with ample learning and lucidity inhis HISTORY OF ENGLISH LAW, vol. 8, pp. 446 et seq., andneed not here be rehearsed. Suffice it to say that theprocess of evolution has been from the principle that everyDILLON V. LEGG

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 177society, the actor bore responsibility for anydamage he inflicted without regard to whether hewas at fault or owed a "duty" to the injuredperson. Thus, at that time, the defendant owed aduty to all the world to conduct himself withoutcausing injury to his fellows. It may well be thatthe physical contraction of the feudal societyimposed an imperative for maximum procurablesafety and a corresponding absolute responsibilityupon its members.The Industrial Revolution, which cracked thesolidity of the feudal society and opened up wideand new areas of expansion, changed the legalconcepts. Just as the new competitiveness in theeconomic sphere figuratively broke out of thewalls of the feudal community, so it broke throughthe rule of strict liability. In the place of strictliability it introduced the theory that an action fornegligence would lie only if the defendantbreached a duty which he owed to plaintiff. AsLord Esher said in Le Lievre v. Gould (1893) 1Q.B. 491, 497: "A man is entitled to be asnegligent as he pleases towards the whole world ifhe owes no duty to them."We have pointed out that this late 19thcentury concept of duty, as applied to the instantsituation, has led the courts to deny liability. Wehave noted that this negation of duty emanatesfrom the twin fears that courts will be floodedwith an onslaught of (1) fraudulent and(2) indefinable claims. We shall point out why wethink neither fear justified.1. This court in the past has rejectedthe argument that we must deny recoveryupon a legitimate claim because otherfraudulent ones may be urged.* * *The possibility that some fraud will escapedetection does not justify an abdication of thejudicial responsibility to award damages for soundclaims: if it is "to be conceded that our proceduralman acts at his peril and is liable for all the consequencesof his acts to the principle that a man's freedom of action issubject only to the obligation not to infringe any duty ofcare which he owes to others. The emphasis formerly wason the injury sustained and the question was whether thecase fell within one of the accepted classes of commonlaw actions; the emphasis now is on the conduct of theperson whose act has occasioned the injury and thequestion is whether it can be characterized as negligent."(Read v. J. Lyons & Co., Ltd. (1947) A.C. 156, 171.)system for the ascertainment of truth is inadequateto defeat fraudulent claims ..., the result is avirtual acknowledgment that the courts are unableto render justice in respect to them." (Chiuchiolov. New England Wholesale Tailors (1930) 84 N.H.329, 335, 150 A. 540, 543.)* * *2. The alleged inability to fixdefinitions for recovery on the differentfacts of future cases does not justify thedenial of recovery on the specific facts ofthe instant case; in any event, properguidelines can indicate the extent ofliability for such future cases.In order to limit the otherwise potentialinfinite liability which would follow everynegligent act, the law of torts holds defendantamenable only for injuries to others which todefendant at the time were reasonably foreseeable.In the absence of "overriding policyconsiderations ... foreseeability of risk [is] of ...primary importance in establishing the element ofduty."...* * *We note, first, that we deal here with a case inwhich plaintiff suffered a shock which resulted inphysical injury and we confine our ruling to thatcase. In determining, in such a case, whetherdefendant should reasonably foresee the injury toplaintiff, or, in other terminology, whetherdefendant owes plaintiff a duty of due care, thecourts will take into account such factors as thefollowing: (1) Whether plaintiff was located nearthe scene of the accident as contrasted with onewho was a distance away from it. (2) Whether theshock resulted from a direct emotional impactupon plaintiff from the sensory andcontemporaneous observance of the accident, ascontrasted with learning of the accident fromothers after its occurrence. (3) Whether plaintiffand the victim were closely related, as contrastedwith an absence of any relationship or thepresence of only a distant relationship.The evaluation of these factors will indicatethe degree of the defendant's foreseeability:obviously defendant is more likely to foresee thata mother who observes an accident affecting herchild will suffer harm than to foretell that astranger witness will do so. Similarly, the degreeof foreseeability of the third person's injury is fargreater in the case of his contemporaneousDILLON V. LEGG

178 3. DAMAGESobservance of the accident than that in which hesubsequently learns of it. The defendant is morelikely to foresee that shock to the nearby,witnessing mother will cause physical harm thanto anticipate that someone distant from theaccident will suffer more than a temporaryemotional reaction. All these elements, of course,shade into each other; the fixing of obligation,intimately tied into the facts, depends upon eachcase.In light of these factors the court willdetermine whether the accident and harm wasreasonably foreseeable. Such reasonableforeseeability does not turn on whether theparticular defendant as an individual would havein actuality foreseen the exact accident and loss; itcontemplates that courts, on a case-to-case basis,analyzing all the circumstances, will decide whatthe ordinary man under such circumstancesshould reasonably have foreseen. The courts thusmark out the areas of liability, excluding theremote and unexpected.In the instant case, the presence of all theabove factors indicates that plaintiff has alleged asufficient prima facie case....... To the extent that it is inconsistent with ourruling here, we therefore overrule Amaya v. HomeIce, Fuel & Supply Co., supra, 59 Cal. 2d 295, 29Cal. Rptr. 33, 379 P.2d 513.To deny recovery would be to chain this stateto an outmoded rule of the 19th century which canclaim no current credence. No good reasoncompels our captivity to an indefensibleorthodoxy.The judgment is reversed.PETERS, MOSK, and SULLIVAN, JJ.,concur.TRAYNOR, Chief JusticeI dissent for the reasons set forth in Amaya v.Home Ice, Fuel & Supply Co. (1963) 59 Cal. 2d295, 297-315, 29 Cal. Rptr. 33, 379 P.2d 513. Inmy opinion that case was correctly decided andshould not be overruled.BURKE, Justice [dissenting]As recently as 1963 this court, in Amaya v.Home Ice, Fuel & Supply Co., 59 Cal. 2d 295, 29Cal. Rptr. 33, 379 P.2d 513, thoroughly studiedand expressly rejected the proposition (pp.298-299, 29 Cal. Rptr. 33, 379 P.2d 513) that tortliability may be predicated on fright or nervousshock (with consequent bodily illness) inducedsolely by the plaintiff's apprehension ofnegligently caused danger or injury to a thirdperson. As related in our Amaya opinion, plaintiffthere was the mother of a 17-month-old boy whosaw him struck by a truck; accordingly our rulingnecessarily included all mothers of small childrenwho observe them being injured. Yet today thiscourt's Amaya decision is overruled by an opinionwhich disdains any discussion whatever of thehistory and policy of pertinent law painstakinglyset forth in Amaya.* * *It appears to me that in the light of today'smajority opinion the matter at issue should becommended to the attention of the Legislature ofthis state. Five years have elapsed since ourAmaya decision, during which that body has notundertaken to change the law we there declared.We may presume, therefore, that the limitationsupon liability there affirmed comport withlegislative views. But if all alleged Californiatortfeasors, including motorists, home and otherproperty owners, and governmental entities, arenow to be faced with the concept of potentiallyinfinite liability beyond any rational relationshipto their culpability, then surely the point has beenreached at which the Legislature shouldreconsider the entire subject and allow allinterests affected to be heard.I would affirm the judgment.Questions and Notes1. Recall that Dillon is a classic example ofwhat might be called a "parasitic" claim foremotional distress. Without invoking thepejorative connotation of that word, it isimportant to bear in mind that without the relatedphysical injury, Mrs. Dillon would have no claim.These cases are also sometimes called"bystander" cases, because they involve injury tosomeone "standing by" while someone related tothem is injured.2. The California Supreme Court decided inOchoa v. Superior Court, 39 Cal. 3d 159, 216Cal. Rptr. 661, 703 P.2d 1 (1985), that the deathof a child need not be sudden in order for amother to have a claim of negligent infliction ofemotional distress. Nor did the mother need tohave actually witnessed the child's death.However, that same decision refused to allow aDILLON V. LEGG

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 179claim by the father, who had seen his son wellbefore the boy was in the process of dying ofpneumonia, and neglect, in a state hospital. Theissue continues to divide the court. In Thing v. LaChusa, 771 P.2d 814, 257 Cal. Rptr. 865 (1989),the court denied a recovery to a parent who wasnot present at the accident scene, seeVanDeWeghe, California Continues to Strugglewith Bystander Claims for the NegligentInfliction of Emotional Distress, 24 LOY. L.A. L.REV. 89 (1990).3. In Ballinger v. Palm Springs AerialTramway, 269 Cal. Rptr. 583 (Cal. App. 1990),plaintiffs were riding on an aerial tramway whena part of the system fell through the car they wereriding in and struck a passenger, who later diedfrom her injuries. Although plaintiffs wereunrelated to the decedent, and did not suffer anyphysical injury, they sued the tramway companyfor their emotional distress. The defendantclaimed that they could not recover, based uponDillon. The judge granted summary judgment forthe defendants. The plaintiffs appealed. Howwould you decide the case?HEGEL v. McMAHON136 Wash.2d 122, 960 P.2d 424 (1998)DURHAM, Chief Justice.Plaintiffs in these consolidated cases seek torecover for emotional trauma they experiencedafter witnessing the suffering of an injured familymember at the scene of an accident. Their claimsbelow were dismissed because the Plaintiffs werenot present when the accidents occurred. Wereverse and hold that Plaintiffs may recover foremotional distress caused by observing an injuredrelative at the scene of an accident shortly afterits occurrence and before there is substantialchange in the relative's condition or location.Hegel v. McMahonFactsDale Hegel ran out of gas and pulled over tothe side of a road. As he poured gasoline into histank, a passing car struck him and knocked himinto a ditch. Dale Hegel's son and parents weredriving along the same road and came upon thescene after the accident. They discovered himlying in the ditch, severely injured and bleedingfrom his nose, ears, and mouth. A few minuteslater, Dale Hegel's brother and sister-in-law alsocame upon the scene and observed him in theditch.Dale Hegel suffered severe and permanenthead injuries. He and his wife have settled allclaims against the driver. The Hegel familymembers who came upon the accident scene suedthe driver on their own behalf for negligentinfliction of emotional distress. They alleged thatthe sight of Dale Hegel's injured body in the ditchput them in a state of fear and panic and that theycontinue to suffer from anxiety and shock.The Defendants moved for summaryjudgment, asserting that they owed no duty to theHegels and that the Hegels' interrogatory answersdid not allege sufficient objective symptoms ofmental distress. The Hegels sought to amend theirinterrogatory answers to include physical ailmentscaused by their emotional distress, but the trialcourt refused to consider the amended answersbecause they contradicted the Hegels' previousanswers and were unsupported by medicalevidence. The court then dismissed the case onthe grounds that the Hegels failed to showsufficient objective symptoms of emotionaldistress. The Court of Appeals affirmed thesummary judgment, but did not examine thesufficiency of the symptoms. Instead, the courtruled that a plaintiff must actually witness theinjury causing accident in order to state a cause ofaction for negligent infliction of emotionaldistress. Hegel v. McMahon, 85 Wash. App. 106,112, 931 P.2d 181 (1997). The plaintiffspetitioned for discretionary review in this court.Marzolf v. StoneNineteen-year-old Jeremy Marzolf was killedwhen his motorcycle collided with a school bus.Jeremy's father, Barton Marzolf, happened uponthe scene within 10 minutes of the collision,before emergency crews arrived. He saw his sonon the ground, still conscious, but "his leg was cutoff, and he was about split in half." Br. of Pet'r at2. Jeremy died soon afterward.Barton Marzolf filed suit for wrongful deathand negligent infliction of emotional distressagainst Snohomish County, the school district, andDILLON V. LEGG

180 3. DAMAGESthe driver of the bus. The Defendants moved todismiss the emotional distress claim on thegrounds that Mr. Marzolf was not at the scenewhen the accident occurred. Initially, the trialcourt denied the motion, but when the Court ofAppeals issued its decision in Hegel, the Countymoved for reconsideration. After consideringHegel, the trial court granted the motion todismiss. Marzolf petitioned this court for reviewand the two cases were consolidated.AnalysisBystander negligent infliction of emotionaldistress claims involve emotional trauma resultingfrom one person's observation or discovery ofanother's negligently inflicted physical injury.Washington restricts the class of bystandernegligent infliction of emotional distress plaintiffsto those who were present at the scene of theaccident, Gain v. Carroll Mill Co., 114 Wash.2d254, 260, 787 P.2d 553 (1990), and requires thatplaintiffs demonstrate objective symptoms of theiremotional injury. Hunsley v. Giard, 87 Wash.2d424, 436, 553 P.2d 1096 (1976). The parties askus to decide whether plaintiffs must actually be atthe scene at the time of the accident, and what isnecessary to sufficiently allege objectivesymptoms of their distress.Washington first recognized a bystandernegligent infliction of emotional distress cause ofaction in Hunsley. In that case, the defendantnegligently drove her car into the plaintiff's home.The plaintiff was not injured, but after theaccident she experienced heart trouble which waslater diagnosed as having resulted from severemental stress. Hunsley, 87 Wash.2d at 425, 553P.2d 1096. The court allowed the claim fornegligent infliction of emotional distress,dispensing with the previous limiting requirementthat the plaintiff be within the zone of danger.Instead, the court evaluated the claim based on thegeneral tort principles of duty and foreseeability.If the specific harm alleged by the plaintiff wasforeseeable to the defendant, he had a duty toavoid it and could be held liable. Hunsley, 87Wash.2d at 434-35, 553 P.2d 1096.More than 10 years after Hunsley firstallowed a claim for bystander negligent inflictionof emotional distress, the Court of Appealsreasoned that a liability scheme that was limitedI.by foreseeability alone was contrary to publicpolicy. Cunningham v. Lockard, 48 Wash. App.38, 736 P.2d 305 (1987). The plaintiffs inCunningham were the minor children of a motherwho was struck by a car. The children neitherwitnessed the accident, nor came upon the sceneshortly after its occurrence. The Court of Appealsheld as a matter of law that the children could notrecover for emotional distress. The Court ofAppeals explained that Hunsley's foreseeabilityapproach did not set an adequate limit to the scopeof a defendant's legal liability. "[T]he decisionsubjects defendants to potentially unlimitedliability to virtually anyone who suffers physicalmanifestations of emotional distress ... Because ofthis virtually unlimited liability, a boundaryestablishing the class of persons who can sue mustbe drawn." Cunningham, 48 Wash. App. at 44,736 P.2d 305. Thus, Cunningham held thatnegligent infliction of emotional distress claimsshould be limited to claimants who were presentat the time the victim was imperiled by thedefendant's negligence.This court revisited the issue in Gain v.Carroll Mill Co., 114 Wash.2d 254, 787 P.2d 553(1990). In Gain, we recognized that Hunsley'sforeseeability approach might allow for an overlyexpansive allocation of fault, and acknowledgedthe need for an outer limit to liability. In Gain,the plaintiff learned of his son's death when heviewed television news coverage of the fatalaccident. The plaintiff sued the driver of the carthat caused the accident. The court held that aplaintiff who viewed an accident on televisionmay not bring a claim for negligent infliction ofemotional distress. The court reasoned that suchemotional injury is unforeseeable as a matter oflaw where the family member was not present atthe scene of the accident. Gain, 114 Wash.2d at255, 787 P.2d 553.We agree with the Court in Cunningham, thatunless a reasonable limit on the scope ofdefendants' liability is imposed, defendants wouldbe subject to potentially unlimited liability tovirtually anyone who suffers mental distresscaused by the despair anyone suffers upon hearingof the death or injury of a loved one. As one courtstated:`It would surely be an unreasonableburden on all human activity if a defendantwho has endangered one person were to becompelled to pay for the lacerated feelings ofevery other person disturbed by reason ofHEGEL V. MCMAHON

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 181it....'Gain, 114 Wash.2d at 260, 787 P.2d 553(quoting Budavari v. Barry, 176 Cal. App.3d 849,855, 222 Cal. Rptr. 446 (1986) (quoting Scherr v.Hilton Hotels Corp., 168 Cal. App.3d 908, 214Cal. Rptr. 393 (1985))). 69Although Gain recognized that specificlimitations must be placed on the foreseeabilitystandard, the court did not embrace Cunningham'srule that a claimant must be present at the time ofthe accident. Instead, the court balanced theinterest in compensating the injured party againstthe view that a negligent act should have someend to its legal consequences. The court held thatmental suffering by a relative "who is not presentat the scene of the injury-causing event isunforeseeable as a matter of law." The court laterconcluded that plaintiffs must be "physicallypresent at the scene of the accident or arriveshortly thereafter. Mental distress where theplaintiffs are not present at the scene of theaccident and/or arrive shortly thereafter isunforeseeable as a matter of law." Gain, 114Wash.2d at 261, 787 P.2d 553.The significance of the phrase "shortlythereafter" in Gain is the center of the controversyin this case. The Court of Appeals below did notgive effect to the "shortly thereafter" language.Instead, the court followed the lead of the Courtof Appeals in Cunningham by holding that onlyplaintiffs who are present at the accident sceneand observe the injury-causing event may recoverfor emotional distress. Hegel, 85 Wash. App. at112, 931 P.2d 181. In its analysis, the court notedthat later decisions have largely "ignored" ourlanguage in Gain that allows a cause of action tothose who arrive shortly after an accident. Hegel,85 Wash. App. at 110, 931 P.2d 181. The Courtalso referred to recent federal decisions thatcharacterized Washington law as requiring that a69See also Robert L. Rabin, Tort Recovery forNegligently Inflicted Economic Loss: A Reassessment, 37STAN. L.REV. 1513, 1526 (1985) ("Foreseeability provestoo much.... Although it may set tolerable limits for mosttypes of physical harm, it provides virtually no limit onliability for nonphysical harm."); Consolidated Rail Corp.v. Gottshall, 512 U.S. 532, 553, 114 S. Ct. 2396, 129 L.Ed.2d 427 (1994) ("If one takes a broad enough view, allconsequences of a negligent act, no matter how farremoved in time or space, may be foreseen. Conditioningliability on foreseeability, therefore, is hardly a conditionat all.").plaintiff personally witness the injury or death of afamily member in order to recover for negligentinfliction of emotional distress. Hegel, 85 Wash.App. at 111, 931 P.2d 181 (citing ConsolidatedRail Corp. v. Gottshall, 512 U.S. 532, 114 S. Ct.2396, 2407, 129 L. Ed.2d 427 (1994); Chan v.Society Expeditions, Inc., 39 F.3d 1398, 1409 (9thCir.1994)).Contrary to the position of the Court ofAppeals, Gain does not limit negligent inflictionof emotional distress claims to those who actuallywitness the injury-causing event. The Court ofAppeals relies on Washington State PhysiciansIns. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d299, 858 P.2d 1054 (1993) for the proposition thatthis court has ignored the "shortly thereafter"language in Gain. However, Fisons does notinvolve bystander recovery for emotional traumacaused by witnessing an injured family member atthe scene of an accident. Fisons is a productliability case and cites to Gain only for theprinciple that emotional distress damages causedby witnessing a third party's injuries arecompensable under limited circumstances. Fisonsrepeats Gain's holding that a plaintiff must bepresent at the scene of the accident in order torecover for emotional distress, but never discussesthe specific issue of whether a plaintiff must be atthe scene at the time of the accident in order torecover, or whether he may arrive after theaccident has occurred. Fisons, 122 Wash.2d at320-21, 858 P.2d 1054.Likewise, the Court of Appeals placed undueemphasis on Consolidated Rail and Chan.Although those cases have characterizedWashington as requiring a plaintiff to personallywitness the injury of a family member, otherjurisdictions have characterized Washington as astate that allows recovery where the plaintiffarrives at the scene shortly after the accident. SeeClohessy v. Bachelor, 237 Conn. 31, 43-44, 675A.2d 852, 859 (1996); Sorrells v. M.Y.B.Hospitality Ventures, 334 N.C. 669, 675, 435S.E.2d 320, 324 (1993) (Meyer, J., concurring inresult); see also Elizabeth Handsley, MentalInjury Occasioned by Harm to Another: AFeminist Critique, 14 LAW & INEQ. J. 391, 418(1996).We will not ignore the "shortly thereafter"language in Gain. Prior to Gain, negligentinfliction of emotional distress claims werelimited only by general tort principles. Hunsley,87 Wash.2d at 434-36, 553 P.2d 1096. Gainnarrowed the cause of action by requiring aHEGEL V. MCMAHON

182 3. DAMAGESplaintiff to be present at the accident scene inorder to recover. Gain did not further restrictliability by mandating that the plaintiff be presentat the time of the accident, nor did it foreclose acause of action for a plaintiff who arrives on thescene after the accident has occurred andwitnesses the victim's suffering. Furthermore,Gain cited as comporting with its holding severaljurisdictions that allow recovery when the plaintiffarrives shortly after the accident. Gain, 114Wash.2d at 260, 787 P.2d 553 (citing Nancy P. v.D'Amato, 401 Mass. 516, 517 N.E.2d 824 (1988);Croft v. Wicker, 737 P.2d 789 (Alaska 1987);Gates v. Richardson, 719 P.2d 193 (Wyo.1986);Ochoa v. Superior Court, 39 Cal. 3d 159, 703 P.2d1, 216 Cal. Rptr. 661 (1985)). Gain's choice ofauthority suggests that the court did not intend tolimit recovery to those who actually witness theaccident.A bright line rule that limits recovery foremotional distress to those who witnessed theaccident is attractive in its simplicity. However, itdraws an arbitrary line that serves to excludeplaintiffs without meaningful distinction. Theemotional trauma caused by seeing a loved oneinjured at an accident scene stems not merelyfrom witnessing the transition from health toinjury, but also from witnessing the aftermath ofan accident in all its alarming detail. TheWyoming Supreme Court explained in Gates v.Richardson, 719 P.2d at 199:The essence of the tort is the shockcaused by the perception of an especiallyhorrendous event.... The kind of shock the tortrequires is the result of the immediateaftermath of an accident. It may be thecrushed body, the bleeding, the cries of pain,and, in some cases, the dying words which arereally a continuation of the event. Theimmediate aftermath may be more shockingthan the actual impact.(Citation omitted.)Allowing recovery only to those who werepresent at the time of the injury-causing eventcreates an arbitrary distinction. Gain limitedrecovery to those plaintiffs who were present atthe scene of the accident. We will not furtherrestrict recovery by requiring that a plaintiffactually be present at the time of the accident.However, although we must reject artificial linesthat serve only to restrict the number of plaintiffs,not every act that causes harm results in legalliability. Hunsley, 87 Wash.2d at 434, 553 P.2d1096. The challenge is to create a rule thatacknowledges the shock of seeing a victim shortlyafter an accident, without extending a defendant'sliability to every relative who grieves for thevictim. In his Gain dissent, Justice Brachtenbachidentified the difficulty in pinpointing the limit toa defendant's liability. "[W]hat does `shortlythereafter' mean? What magic elapse of time willbe the dividing line? Yes, to the plaintiff whoarrives 5 minutes later, but no, to the father whoarrives 10, 20, or 30 minutes later?" Gain, 114Wash.2d at 266, 787 P.2d 553. An appropriaterule should not be based on temporal limitations,but should differentiate between the traumasuffered by a family member who views anaccident or its aftermath, and the grief suffered byanyone upon discovering that a relative has beenseverely injured. 70Other jurisdictions have developed a widespectrum of rules to define liability for negligentinfliction of emotional distress. Alaska hasallowed a mother to bring a claim where she sawher injured daughter at the hospital after theaccident. See Beck v. State Dep't of Transp. &Pub. Facilities, 837 P.2d 105 (Alaska 1992).Maine holds that a defendant is only liable foremotional distress that arises when parentsactually witness their child receiving an injury.See Cameron v. Pepin, 610 A.2d 279, 284(Me.1992). Connecticut and Wyoming haveadopted a principled intermediate approach whichlimits the scope of liability, yet still allowsrecovery to those plaintiffs who witness theirrelative's injuries at the scene of an accident.These states recognize a cause of action where aplaintiff witnesses the victim's injuries at thescene of an accident shortly after it occurs andbefore there is material change in the attendantcircumstances. See Clohessy v. Bachelor, 237Conn. 31, 675 A.2d 852 (1996); Gates v.Richardson, 719 P.2d 193 (Wyo.1986). This ruleaddresses the concerns over limitless liability byallowing recovery only to the class of claimantswho are present at the scene before the horror ofthe accident has abated. It dispenses with the70For example, for purposes of diagnosingposttraumatic stress disorder, a traumatic event is onewhere a person experiences or witnesses actual orthreatened physical injury or death, and has a response thatinvolves "intense fear, helplessness, or horror." See Am.Psychiatric Ass'n, Diagnostic and Statistical Manual ofMental Disorders 428 (4th ed.1994).HEGEL V. MCMAHON

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 183arbitrary requirement that a plaintiff actuallywitness the accident, yet preserves the limitationon liability established in Gain. The criticalfactors are the circumstances under which theobservation is made, and not any rigid adherenceto the length of time that has passed since theaccident.We adopt this approach and hold that a familymember may recover for emotional distresscaused by observing an injured relative at thescene of an accident after its occurrence andbefore there is substantial change in the relative'scondition or location. Applying this rule to thefacts of these cases, we conclude that it wasimproper for the lower courts to dismiss thePlaintiffs' claims for negligent infliction ofemotional distress. Because Plaintiffs in bothcases were present at the scene, and may havewitnessed their family members' suffering beforethere was a substantial change in the victim'scondition or location, their mental distress was notunforeseeable as a matter of law.II.The defendants in Hegel also challenge thesufficiency of the Hegels' objective symptoms ofemotional distress. In order to recover fornegligent infliction of emotional distress, aplaintiff's emotional response must be reasonableunder the circumstances, and be corroborated byobjective symptomology. Hunsley, 87 Wash.2d at436, 553 P.2d 1096. In their original interrogatoryanswers, the Hegels alleged they felt scared,angry, upset, suffered nightmares, and felt fearand panic. The trial court relied on Shoemaker v.St. Joseph Hosp. & Health Care Ctr., 56 Wash.App. 575, 784 P.2d 562 (1990) and held that thesecomplaints were insufficient to satisfy Hunsley'sobjective symptomology requirement. In doingso, the trial court implicitly incorporatedShoemaker's rule that objective symptomologyrequires some sort of physical manifestation of theemotional distress. 71 We disagree.Shoemaker held that a plaintiff who had sleepdisorders, nightmares, tearful outbursts, lowenergy level, and recurrent intrusive memories didnot exhibit sufficient objective symptomology.The court stated that emotional distress must be71Both parties in this case also appear to equateobjective symptomology with physical symptoms ofdistress."`manifested by objective symptomatology', i.e.,`physical symptoms evidencing and resultingfrom the emotional distress.'" Shoemaker, 56Wash. App. at 581, 784 P.2d 562 (quoting Hunsleyv. Giard, 87 Wash.2d at 433, 436, 553 P.2d 1096).However, Shoemaker quoted Hunsley's referenceto physical symptoms out of context. Hunsley didnot equate objective symptomology with physicalmanifestations. Instead, the court explicitly statedthat it would not rule on the issue of whetherphysical symptoms were required.Our decision necessarily ispredicated upon the existence of physicalsymptoms evidencing and resulting fromthe emotional distress. We say that this isnecessarily so because these are the factsof this case. Plaintiff suffered physicalheart damage as well as emotionaldistress. Whether there is liability foremotional distress unmanifested by anyphysical symptoms must be determinedin another case.Hunsley, 87 Wash.2d at 433-34, 553 P.2d1096. 72Hunsley's objective symptomology limitationis valuable as corroborating evidence to fend offfraudulent claims. However, uncorroboratedallegations of physical manifestations cannotserve to further this goal. Rather, they are theepitome of subjective symptoms: unverifiedassertions of pain that have not been supported byoutside evidence or authoritative testimony.Requiring physical manifestations ofemotional distress severely and irrationally limitsthe types of symptoms that would be sufficient toprove a claim. Such a requirement wouldencourage exaggerated pleading and discount thereliability of psychiatric testimony. This approachhas been extensively criticized in otherjurisdictions. See Paugh v. Hanks, 6 Ohio St.3d72, 78, 451 N.E.2d 759, 765 (1983) ("[A] rigidrequirement which prevents a plaintiff from72Other courts have not read Hunsley to requirephysical manifestations of emotional distress. See Lindseyv. Visitec, Inc., 804 F. Supp. 1340, 1342-43 (W.D.Wash.1992) ("[T]he objective symptomatologyrequirement of Hunsley is not limited to purely physicalmanifestations such as gastrointestinal disorders, asdefendants assert. The requirement is only that themanifestations be objective in nature. Depression,sleeplessness, loss of weight, and social and professionaldysfunction impairment are all objective symptoms.").HEGEL V. MCMAHON

184 3. DAMAGESrecovering from serious emotional harm exceptwhere a physical injury manifestation has ensued,completely ignores the advances made in modernmedical and psychiatric science ..."); Folz v.State, 110 N.M. 457, 470, 797 P.2d 246, 259(1990) (illogical to require as a threshold elementthe presence of physical injury to manifest theemotional trauma); Leong v. Takasaki, 55 Haw.398, 403, 520 P.2d 758, 762, 94 A.L.R.3d 471(1974) (physical injury requirement is artificialand should only be used to show degree ofemotional distress); Culbert v. Sampson'sSupermarkets Inc., 444 A.2d 433, 438 (Me.1982)(proof of physical manifestations of the mentalinjury is no longer required); Heldreth v. Marrs,188 W.Va. 481, 490, 425 S.E.2d 157, 166 (1992)(emotional distress can be severe and debilitatingeven absent physical manifestations of theemotional injury).Restricting recovery to only those plaintiffswho experience some sort of physical ailmentmay disqualify seriously injured plaintiffs, whiledoing nothing to restrict fraudulent claims.Serious emotional distress can be diagnosed evenin the absence of any physical manifestation, andcan be proved with medical and psychiatricevidence. See Sorrells v. M.Y.B. HospitalityVentures, 334 N.C. 669, 672, 435 S.E.2d 320, 322(1993) ("[P]laintiff must show an `emotional ormental disorder, such as, for example, neurosis,psychosis, chronic depression, phobia, or anyother type of severe and disabling emotional ormental condition which may be generallydiagnosed by professionals trained to do so.'")(quoting Johnson v. Ruark Obstetrics &Gynecology Assocs., P.A., 327 N.C. 283, 304, 395S.E.2d 85, 97 (1990)); Lejeune v. Rayne BranchHosp., 556 So.2d 559, 570 (La.1990)("Compensation for mental pain and anguish overinjury to a third person should only be allowedwhere the emotional injury is both severe anddebilitating.... A non-exhaustive list of examplesof serious emotional distress includes neuroses,psy-choses, chronic depression, phobia andshock.").We hold that to satisfy the objectivesymptomology requirement established inHunsley, a plaintiff's emotional distress must besusceptible to medical diagnosis and provedthrough medical evidence. 73 This approach calls73We agree with Sorrells v. M.Y.B. HospitalityVentures, 334 N.C. 669, 672, 435 S.E.2d 320, 322 (1993)for objective evidence regarding the severity ofthe distress, and the causal link between theobservation at the scene and the subsequentemotional reaction. Thus, contrary to the holdingof the Court of Appeals in Shoemaker,nightmares, sleep disorders, intrusive memories,fear, and anger may be sufficient. However, inorder for these symptoms to satisfy the objectivesymptomology requirement, they must constitutea diagnosable emotional disorder.After the defendants moved for summaryjudgment, the Hegels attempted to amend theirinterrogatory answers to further explain theirsymptomology. The Hegels focused their effortson presenting physical manifestations of theiremotional harm. Given our rejection of theShoemaker standard, we remand the Hegels' caseto the trial court for a decision on whether theHegels should be allowed to amend theirpleadings or supplement their discovery in lightof our holding.ConclusionIt is not necessary for a bystander to bepresent at the time of the injury-causing event inorder to state a claim for negligent infliction ofemotional distress. A family member may recoverfor emotional distress if he or she arrives at thescene shortly after the accident before substantialchange has occurred in the victim's condition orlocation. The plaintiff's emotional distress mustbe reasonable, and the plaintiff must presentobjective symptoms of the distress that aresusceptible to medical diagnosis and provedthrough qualified evidence.Both the Hegels and Mr. Marzolf werepresent at the scene of the accident. The fact thatboth arrived in time to witness only the suffering,not the infliction of injury on their relatives, doesnot preclude their claims. Furthermore, theHegels' emotional symptoms of distress may besufficient if they can be diagnosed and provedthrough medical evidence. We remand both casesto the trial court for further proceedings.DURHAM, C.J., and DOLLIVER, SMITH,and Lejeune v. Rayne Branch Hosp., 556 So.2d 559, 570(La.1990) that examples of emotional distress wouldinclude neuroses, psychoses, chronic depression, phobia,shock, post traumatic stress disorder, or any otherdisabling mental condition.HEGEL V. MCMAHON

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 185GUY, JOHNSON, MADSEN, ALEXANDER,TALMADGE and SANDERS, JJ., concur.4. Loss of ConsortiumIntroductory Note. Like the claims forbystander injuries, suits claiming loss ofconsortium (the "society" and companionshipwith another) argue that the injury to one personhas caused injuries to someone dependent uponor related to the immediate victim. Whereas thebystander claims often involve a claim for theemotional impact caused by observing the injury(claims which can be made even by unrelatedparties), in the following cases a related partysues for compensation even where he or shedoesn't witness the original injury.RODRIGUEZ v. BETHLEHEM STEELCORPORATION12 Cal. 3d 382, 115 Cal. Rptr. 765, 525 P.2d669 (1974)MOSK, JusticeIn this case we are called upon to decidewhether California should continue to adhere tothe rule that a married person whose spouse hasbeen injured by the negligence of a third partyhas no cause of action for loss of "consortium,"i.e., for loss of conjugal fellowship and sexualrelations. (Deshotel v. Atchison, T.& S.F. Ry. Co.(1958), 50 Cal. 2d 664, 328 P.2d 449; West v. Cityof San Diego (1960), 54 Cal. 2d 469, 475-478, 6Cal. Rptr. 289, 353 P.2d 929.) As will appear, wehave concluded that the reasons for this rule haveceased and that California should join the largeand growing majority of jurisdictions which nowrecognize such a cause of action.The case is here on an appeal from ajudgment of dismissal entered upon thesustaining of general demurrers without leave toamend. From the pleadings and supportingdeclarations filed by the parties, the followingpicture emerges.On May 24, 1969, Richard and Mary AnneRodriguez were married. Both were gainfullyemployed. In their leisure time they participated ina variety of social and recreational activities. Theywere saving for the time when they could buytheir own home. They wanted children, andplanned to raise a large family.Only 16 months after their marriage,however, their young lives were shattered by agrave accident. While at work, Richard was struckon the head by a falling pipe weighing over 600pounds. The blow caused severe spinal corddamage which has left him totally paralyzed inboth legs, totally paralyzed in his body below themidpoint of the chest, and partially paralyzed inone of his arms.The effects of Richard's accident on MaryAnne's life have likewise been disastrous. It hastransformed her husband from an active partnerinto a lifelong invalid, confined to home andbedridden for a great deal of the time. Because heneeds assistance in virtually every activity of dailyliving, Mary Anne gave up her job and undertookhis care on a 24-hour basis. Each night she mustwake in order to turn him from side to side, so asto minimize the occurrence of bedsores. Everymorning and evening she must help him wash,dress and undress, and get into and out of hiswheelchair. She must help him into and out of thecar when a visit to the doctor's office or hospital isrequired. Because he has lost all bladder andbowel control, she must assist him in the difficultand time-consuming processes of performingthose bodily functions by artificial inducement.Many of these activities require her to lift orsupport his body weight, thus placing a repeatedphysical strain on her.Nor is the psychological strain any less. MaryAnne's social and recreational life, evidently, hasbeen severely restricted. She is a constant witnessto her husband's pain, mental anguish, andfrustration. Because he has lost all capacity forsexual intercourse, that aspect of married life iswholly denied to her: as she explains in herdeclaration, "To be deeply in love with each otherand have no way of physically expressing thislove is most difficult physically and mentally."For the same reason she is forever denied theopportunity to have children by him - he is, for allpractical purposes, sterilized: again she explains,"I have lost what I consider is the fulfillment ofmy existence because my husband can't make mepregnant so as to bear children and have a family."The consequences to her are predictable: "Thesephysical and emotional frustrations with no outletHEGEL V. MCMAHON

186 3. DAMAGEShave made me nervous, tense, depressed and havecaused me to have trouble sleeping, eating andconcentrating." In short, Mary Anne says,"Richard's life has been ruined by this accident.As his partner, my life has been ruined too."At the time of the accident Richard was 22years old and Mary Anne was 20. The injuries,apparently, are permanent.To paraphrase our opening observation inDillon v. Legg (1968), 68 Cal. 2d 728, 730, 69Cal. Rptr. 72, 74, 441 P.2d 912, 914, "That thecourts should allow recovery" to a wife for lossesshe personally suffers by reason of negligentinjury to her husband "would appear to be acompelling proposition." But the pathway tojustice is not always smooth. Here, as in Dillon,the obstacle is a prior decision of this court; andas in Dillon, the responsibility for removing thatobstacle, if it should be done, rests squarely uponus.The point was clearly made by the courtsbelow. Richard and Mary Anne jointly filed anamended complaint against Richard's employerand various subcontractors. In the first cause ofaction, predicated on his own injuries, Richardprayed for substantial general damages, past andfuture medical expenses, and compensation forthe loss of his earnings and earning capacity. Inthe second cause of action Mary Anne alleged theconsequences to her of Richard's injuries, andprayed for general damages in her own right, thereasonable value of the nursing care she furnishesher husband, and compensation for the loss of herearnings and earning capacity. Defendants filedgeneral demurrers to the second cause of action onthe ground that no recovery for any such loss ispermitted in California under the authority ofDeshotel v. Atchison T. & S.F. Ry. Co. (1958),supra, 50 Cal. 2d 664, 328 P.2d 449.When the demurrers came on for hearing thetrial court emphasized the rule, recognized inDeshotel (id., at p. 669, 328 P.2d 449), that in awrongful death case a widow can recoverdamages for the loss of her deceased husband'ssociety, comfort, and protection. The courtcriticized the contrary rule applicable when, ashere, the husband is severely injured but does notdie: "I have never been able to justify the lawwhich permitted a widow to be compensated forthe detriment suffered as a result of loss ofcompanionship and so forth, but at the same timewon't compensate her for the loss, together withthe burden, of somebody made a vegetable as aresult of something happening to her husband. Ican't see it, but I feel kind of hide bound by theAppellate Court. That is my problem." AddressingMary Anne's counsel, the court made it clear thatit would have ruled in his client's favor but for theprecedent of Deshotel: "I go along with you,counsel, on your philosophy of the law, as to whatthe law ought to be. What about the torque in methat is being created by the proposition that I havethe expression of the courts on a higher level thanthis one that I feel duty bound to follow? You sayI can blaze a trail. I don't think trial judges areentitled to blaze trails." On its own motion thecourt then severed Mary Anne's cause of actionfrom that of Richard and sustained the generaldemurrers thereto without leave to amend, "Inorder to expedite the determination of the legalissues raised by defendants by a court of higherlevel than this...." Eventually a judgment ofdismissal as to Mary Anne was entered (Code Civ.Proc. § 581, subd. 3), and she appealed.In affirming the judgment the Court of Appeallikewise indicated its dissatisfaction with theDeshotel rule, but correctly deferred to this courtfor any reconsideration of the doctrine: PresidingJustice Kaus, writing for a unanimous court,stated that "In spite of counsel's eloquentexhortations to the contrary, we must hold that itis up to the Supreme Court to qualify or overruleits decisions. We say this in full recognition ofMary Anne's argument that several Supreme Courtcases since Deshotel and West can be read asundermining the rationale of those holdings." Thisis a perceptive and accurate reading of ourdecisions, as we shall explain.To begin with, we delineate the rationale ofDeshotel and West. Clearly it is not the originalcommon law view, which held that a wife couldnot recover for loss of her husband's services bythe act of a third party for the starkly simplereason that she had no independent legal existenceof her own (1 BLACKSTONE, COMMENTARIES, p.*442) and hence had no right to such services inthe first place. 1 That rationale was explicitlyrejected in West, when the court declined torecognize the husband's common law right torecover for loss of his wife's consortium: "hisright," we said, "was based upon the wife'ssubservient position in the marriage relationship1As the Iowa court neatly put it, "at common law thehusband and wife were considered as one, and he was theone." (Acuff v. Schmit (1956), 248 Iowa 272, 78 N.W.2d480, 484.)RODRIGUEZ V. BETHLEHEM STEEL CO.

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 187whereas, under present-day law, spouses aregenerally regarded as equals." (54 Cal. 2d at p.477, 6 Cal. Rptr. at p. 294, 353 P.2d at p. 934.) 2* * *As the Massachusetts court observed, "Weshould be mindful of the trend although ourdecision is not reached by a process of followingthe crowd." (Diaz v. Eli Lilly and Company (Mass.1973), supra, 302 N.E.2d 555, 561.) 3 Quantitative2Prior to Deshotel and West the medieval view ofthe legal identity of husband and wife had been vigorouslydenounced in Follansbee v. Benzenberg (1954), 122 Cal.App. 2d 466, 476, 265 P.2d 183, 189. Holding that a wifewho pays for necessary medical services for hernegligently injured husband can obtain reimbursementfrom the tortfeasor who caused the expenses, the Court ofAppeal reasoned: "The old common law rule that a wifehad no right of action of this character obtained on thetheory that the wife's personality merged in that of thehusband's, that she had no right to hold property separateand apart from her husband, and had no right to sue in herown name. This hollow, debasing, and degradingphilosophy, which has pervaded judicial thinking foryears, has spent its course. These archaic notions no longerobtain. "So prone are the courts to cling to consuetudinarylaw, even after the reason for the custom has ceased orbecome a mere memory, that it has required hundreds ofyears to obtain the need of justice for married women."(Bernhardt v. Perry, 276 Mo. 612 (208 S.W. 462, 470, 13A.L.R. 1320).) The legal status of a wife has changed. Herlegal personality is no longer merged in that of herhusband. A husband has no longer any domination overthe separate property of his wife. A wife may sue in herown name without joining her husband in the suit.Generally a husband and wife have, in the marriagerelation, equal rights which should receive equalprotection of the law."Despite this declaration the anachronistic theory of theidentity of spouses lingered on in other contexts, and wasfinally buried by the decisions in which this court held thatone spouse can sue the other for a negligent or intentionalpersonal tort (Self v. Self (1962), 58 Cal. 2d 683, 26 Cal.Rptr. 97, 376 P.2d 65, and Klein v. Klein (1962), 58 Cal.2d 692, 26 Cal. Rptr. 102, 376 P.2d 70) and that twospouses can be prosecuted for conspiring betweenthemselves to commit a crime (People v. Pierce (1964), 61Cal. 2d 879, 40 Cal. Rptr. 845, 395 P.2d 893).3The trend of cases allowing the wife's recovery wastaken into account in many of the decisions cited infootnote 5, Ante. In other contexts, this court has alsogiven weight to similarly strong currents of judicialthinking in our sister states. (See, e.g., Vesely v. Sager(1971), supra, 5 Cal. 3d 153, 161-162, 95 Cal. Rptr. 623,486 P.2d 151; Gibson v. Gibson (1971), 3 Cal. 3d 914,922-923, 92 Cal. Rptr. 288, 479 P.2d 648.) And the vastmajority of commentators have long supported themovement in favor of recovery for loss of consortium.(See authorities collected in Gates v. Foley (Fla. 1971),at first, the trend took a qualitative leap when theAmerican Law Institute reversed its position onthe subject not long ago. Consonant with priorlaw, section 695 of the first RESTATEMENT OFTORTS, published in 1938, had declared that awife was not entitled to recover for any harmcaused to any of her marital interests by one whonegligently injured her husband. In 1969,however, at a time when the weight of authoritywas still slightly against such recovery - althoughthe trend was running in its favor - the instituteadopted a new section 695, declaring in relevantpart that "One who by reason of his tortiousconduct is liable to a husband for illness or otherbodily harm is also subject to liability to his wifefor resulting loss of his society, including anyimpairment of his capacity for sexualintercourse...." (REST. 2D TORTS (Tent. Draft No.14, Apr. 15, 1969) § 695, adopted May 21, 1969(Proceedings of American Law Inst. (46th AnnualMeeting, 1969) pp. 148-157).) 4In these circumstances we may fairlyconclude that the precedential foundation ofDeshotel has been not only undermined butdestroyed. In its place a new common law rule hasarisen, granting either spouse the right to recoverfor loss of consortium caused by negligent injuryto the other spouse. Accordingly, to adopt that rulein California at this time would not constitute, asthe court feared in Deshotel (50 Cal. 2d at p. 667,328 P.2d 449), an "extension" of common lawliability, but rather a recognition of that liability asit is currently understood by the largepreponderance of our sister states and a consensusof distinguished legal scholars.* * *The injury is indirect, the damagesspeculative, and the cause of action wouldextend to other classes of plaintiffs.Under this heading we group three argumentsrelied on in Deshotel which could be invokedagainst any proposed recognition of a new causeof action sounding in tort. As will appear, each hasbeen refuted by application of fundamentalsupra, 247 So. 2d 40, 42-43, fn.2.)4Section 693 of both the first and secondRESTATEMENTS recognizes an identical right of thehusband to recover for loss of his wife's consortium, butincludes liability for loss of her services as well.RODRIGUEZ V. BETHLEHEM STEEL CO.

188 3. DAMAGESprinciples of the law of negligence.First the Deshotel court asserted that "Anyharm [the wife] sustains occurs only indirectly asa consequence of the defendant's wrong to thehusband" (italics added; 50 Cal. 2d at p. 667, 328P.2d at p. 451). The argument was negated 10years after Deshotel in Dillon v. Legg (1968),supra, 68 Cal. 2d 728, 69 Cal. Rptr. 72, 441 P.2d912. There the issue was whether a driver whonegligently runs over a small child in the street isalso liable to the child's mother for emotionalshock and resulting physical disorders suffered bythe latter when she personally witnessed theoccurrence of the accident. Finding such liability,we in effect rejected the argument that the injuryto the mother was too "indirect." The criticalquestion, we explained, was foreseeability: "Inorder to limit the otherwise potential infiniteliability which would follow every negligent act,the law of torts holds defendant amenable only forinjuries to others which to defendant at the timewere reasonably foreseeable." (Id. at p. 739, 69Cal. Rptr. at p. 79, 441 P.2d at p. 919.) Thedefendant owes a duty of care to all persons whoare foreseeably endangered by his conduct, withrespect to all risks which make the conductunreasonable dangerous. (Ibid.) The foreseeablerisk need not be of an actual physical impact, butmay be of emotional trauma alone. (Id. at pp.739-740, 69 Cal. Rptr. 72, 441 P.2d 912.) Whethera risk is sufficiently foreseeable to give rise to aduty of care depends on the circumstances of eachcase, including the relationship of the parties andthe nature of the threatened injury. (Id. at p. 741,69 Cal. Rptr. 72, 441 P.2d 912.) We concludedthat "In light of these factors the court willdetermine whether the accident and harm wasreasonably foreseeable. Such reasonableforeseeability does not turn on whether theparticular (defendant) as an individual would havein actuality foreseen the exact accident and loss; itcontemplates that courts, on a case-to-case basis,analyzing all the circumstances, will decide whatthe ordinary man under such circumstancesshould reasonably have foreseen. The courts thusmark out the areas of liability, excluding theremote and unexpected." (Ibid.)Applying these rules to the facts alleged, wewere of the opinion in Dillon that "Surely thenegligent driver who causes the death of a youngchild may reasonably expect that the mother willnot be far distant and will upon witnessing theaccident suffer emotional trauma." (Ibid.) Byparity of reasoning, we conclude in the case at barthat one who negligently causes a severelydisabling injury to an adult may reasonably expectthat the injured person is married and that his orher spouse will be adversely affected by thatinjury. In our society the likelihood that an injuredadult will be a married man or woman issubstantial, 5 clearly no less than the likelihoodthat a small child's mother will personally witnessan injury to her offspring. And the probability thatthe spouse of a severely disabled person willsuffer a personal loss by reason of that injury isequally substantial.* * *The next rationale of the Deshotel court (50Cal. 2d at p. 667, 328 P.2d at p. 451) was that "themeasurement of damage for the loss of suchthings as companionship and society wouldinvolve conjecture since their value would be hardto fix in terms of money." This argument, too, hasfared badly in our subsequent decisions.(Although loss of consortium may have physicalconsequences, it is principally a form of mentalsuffering. We have full recognized that "One ofthe most difficult tasks imposed upon a jury indeciding a case involving personal injuries is todetermine the amount of money the plaintiff is tobe awarded as compensation for pain andsuffering. No method is available to the jury bywhich it can objectively evaluate such damages,and no witness may express his subjective opinionon the matter. (Citation.) In a very real sense, thejury is asked to evaluate in terms of money adetriment for which monetary compensationcannot be ascertained with any demonstrableaccuracy." (Beagle v. Vasold (1966), 65 Cal. 2d166, 172, 53 Cal. Rptr. 129, 131, 417 P.2d 673,675.) "Yet," we emphasized in Beagle (at p. 176,53 Cal. Rptr. at p. 134, 417 P.2d at p. 678), "theinescapable fact is that this is precisely what thejury is called upon to do."* * *5As of 1972, 74.8 percent of all men in the UnitedStates over age 18 were married. During the peak workingyears of ages 25 to 65, the proportion of married menranged between 77.8 percent and 89.7 percent. In the caseof women the corresponding figures are 68.5 percent forall adult females and 69.5 percent to 87.3 percent forwomen between the ages of 25 and 65. (StatisticalAbstract of the United States (94th ed. 1973) p. 38, tableNo. 47.)RODRIGUEZ V. BETHLEHEM STEEL CO.

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 189The third argument of this group set forth inDeshotel is that if the wife's cause of action wererecognized "on the basis of the intimaterelationship existing between her and herhusband, other persons having a close relationshipto the one injured, such as a child or parent, wouldlikely seek to enforce similar claims, and thecourts would be faced with the perplexing task ofdetermining where to draw the line with respect towhich claims should be upheld." (50 Cal. 2d at pp.667-668, 328 P.2d at p. 451.) Here again theanswer was subsequently given in Dillon v. Legg.In that case it was likewise urged that any cause ofaction granted to a mother who witnesses herchild's injury could also be asserted by other closerelatives present at the scene such as siblings orgrandparents, thus involving the courts "in thehopeless task of defining the extent of thetortfeasor's liability." (68 Cal. 2d at p. 730, 69 Cal.Rptr. at p. 74, 441 P.2d at p. 914.)We rejected this argument in Dillon on theground that "the alleged inability to fix definitionsfor recovery on the different facts of future casesdoes not justify the denial of recovery on thespecific facts of the instant case; in any event,proper guidelines can indicate the extent ofliability for such future cases." (Id. at p. 731, 69Cal. Rptr. at p. 74, 441 P.2d at p. 914.) Thoseguidelines, as noted hereinabove, are the generalprinciples of negligence law limiting liability topersons and injuries within the scope of thereasonably foreseeable risk. "We do not believethat the fear that we cannot successfullyadjudicate future cases of this sort, pursuant to thesuggested guidelines, should bar recovery in anotherwise meritorious cause." (Id. at pp. 743-744,69 Cal. Rptr. at p. 82, 441 P.2d at p. 922.) ...... That the law might be urged to move toofar, in other words, is an unacceptable excuse fornot moving at all.The fear of double recovery and of theretroactive effect of a judicial rule.In this final group we deal with two Deshotelarguments which apply principally to loss ofconsortium cases. As will appear, theoverwhelming majority of decisions sinceDeshotel have established that each of theseobjections is without substance and cansatisfactorily be resolved by procedural means.First, the Deshotel court expressed theconcern that "A judgment obtained by a husbandafter he is injured by a third person might includecompensation for any impairment of his ability toparticipate in a normal married life, and, if hiswife is allowed redress for loss of consortium in aseparate action, there would be danger of doublerecovery." (50 Cal. 2d at p. 667, 328 P.2d at p.451.) Virtually every decision granting the wifethe right to recover for loss of consortium sinceDeshotel has considered and rejected thisargument (see fn. 5, Ante), calling it "fallacious,""fictional," and a "bogey" that is "merely aconvenient cliche" for denying the wife her actionfor loss of consortium. The cases have made itcrystal clear that, in the quoted words of Deshotel,recovery of damages for impairment of "his"ability to participate in a normal married life doesnot necessarily compensate for the impairment of"her" ability to participate in that life.* * *Nor is the wife's personal loss limited to hersexual rights. As we recognized in Deshotel (50Cal. 2d at p. 665, 328 P.2d at p. 449), consortiumincludes "conjugal society, comfort, affection, andcompanionship." An important aspect ofconsortium is thus the Moral support each spousegives the other through the triumph and despair oflife. A severely disabled husband may well needall the emotional strength he has just to survivethe shock of his injury, make the agonizingadjustment to his new and drastically restrictedworld, and preserve his mental health through thelong years of frustration ahead. He will often turninwards, demanding more solace for himself thanhe can give to others. Accordingly, the spouse ofsuch a man cannot expect him to share the sameconcern for her problems that she experiencedbefore his accident. As several of the cases haveput it, she is transformed from a happy wife into alonely nurse. Yet she is entitled to enjoy thecompanionship and moral support that marriageprovides no less than its sexual side, and in bothcases no less than her husband. If she is deprivedof either by reason of a negligent injury to herhusband, the loss is hers alone. "In the light of theforegoing danger of double recovery is not real forpresumably the husband is recovering for his owninjuries and she is recovering for injury done toherself by the loss of his companionship. There isno duplication, instead, this is an example of asingle tortious act which harms two people byvirtue of their relationship to each other."(General Electric Company v. Bush (1972), supra,88 Nev. 360, 498 P.2d 336, 371.)* * *RODRIGUEZ V. BETHLEHEM STEEL CO.

190 3. DAMAGESWe therefore overrule Deshotel v. Atchison,T.& S.F. Ry. Co. (1958), supra, 50 Cal. 2d 664,328 P.2d 449, and West v. City of San Diego(1960) supra, 54 Cal. 2d 469, 475-478, 6 Cal.Rptr. 289, 353 P.2d 929, and declare that inCalifornia each spouse has a cause of action forloss of consortium, as defined herein, caused by anegligent or intentional injury to the other spouseby a third party.McCOMB, Justice (dissenting)I dissent. I adhere to the view that any changein the law denying the wife recovery for loss ofconsortium should be left to legislative action.(Deshotel v. Atchison, T. & S.F. Ry. Co., 50 Cal. 2d664, 669, 328 P.2d 449.)Questions and Notes1. Should it matter whether the claimant isrelated by marriage to the victim? SeeCavanaugh, A New Tort in California: NegligentInfliction of Emotional Distress (For MarriedCouples Only), 41 Hastings L.J. 447 (1990);Note, Elden v. Sheldon (758 P.2d 982 (Cal.)):Negligent Infliction of Emotional Distress andLoss of Consortium Denied to UnmarriedCohabitants, 26 CAL. W.L. REV. 175 (1989).2. "Eileen Dunphy and Michael T. Burwellbecame engaged to marry in April 1988 andbegan cohabitating two months later. The coupleset a date of February 29, 1992, for theirwedding. On September 29, 1990, the coupleresponded to a friend's telephone call forassistance in changing a tire on Route 80 inMount Arlington. As Michael changed the leftrear tire of the friend's car on the shoulder of theroadway, he was struck by a car driven bydefendant, James Gregor. After being struck bythe vehicle, his body was either dragged orpropelled 240 feet. Eileen, who had beenstanding approximately five feet from Michael,witnessed the impact, and ran to himimmediately. Realizing that he was still alive,she cleared pebbles and blood from his mouth toease his breathing. She attempted to subdue hishands and feet as they thrashed about, all thewhile talking to him in an effort to comfort him.The following day, after a night-long vigil atDover General Hospital, Eileen was told thatMichael Burwell had died as a result of hisinjuries. Since the accident, Eileen hasundergone psychiatric and psychologicaltreatment for depression and anxiety. Sheinstituted an action seeking to recover damagesfor the `mental anguish, pain and suffering'experienced as a result of witnessing the eventsthat led to the death of her fiance."Will Eileen be able to recover? Why or whynot? See Dunphy v. Gregor, 136 N.J. 99, 642A.2d 372, (N.J. 1994).BORER v. AMERICAN AIRLINES138 Cal. Rptr. 302, 563 P.2d 858 (1977)TOBRINER, Acting Chief JusticeIn Rodriguez v. Bethlehem Steel Corp. (1974)12 Cal. 3d 382, 115 Cal. Rptr. 765, 525 P.2d 669we held that a married person whose spouse hadbeen injured by the negligence of a third partymay maintain a cause of action for loss of"consortium." We defined loss of "consortium" asthe "loss of conjugal fellowship and sexualrelations" (12 Cal. 3d at p. 385, 115 Cal. Rptr. atp. 766, 525 P.2d at p. 670), but ruled that the termincluded the loss of love, companionship, society,sexual relations, and household services. Ourdecision carefully avoided resolution of thequestion whether anyone other than the spouse ofa negligently injured person, such as a child or aparent, could maintain a cause of actionanalogous to that upheld in Rodriguez. We facethat issue today:...... Plaintiffs, the nine children of PatriciaBorer, allege that on March 21, 1972, the coveron a lighting fixture at the American AirlinesTerminal at Kennedy Airport fell and struckPatricia. Plaintiffs further assert that as a result ofthe physical injuries sustained by Patricia, each ofthem has been "deprived of the services, society,companionship, affection, tutelage, direction,guidance, instruction and aid in personalitydevelopment, all with its accompanyingpsychological, educational and emotionaldetriment, by reason of Patricia Borer beingunable to carry on her usual duties of a mother."...* * *RODRIGUEZ V. BETHLEHEM STEEL CO.

§ B. RELATED PARTIES: WHO ELSE IS ENTITLED TO COMPENSATION? 191Plaintiffs point out that courts have permittedrecovery of monetary damages for intangible lossin allowing awards for pain and suffering innegligence cases and in sanctioning recovery forloss of marital consortium. The question beforeus in this case, however, pivots on whether weshould recognize a wholly new cause of action,unsupported by statute or precedent; in thiscontext the inadequacy of monetary damages tomake whole the loss suffered, considered in lightof the social cost of paying such awards,constitutes a strong reason for refusing torecognize the asserted claim. To avoidmisunderstanding, we point out that our decisionto refuse to recognize a cause of action forparental consortium does not remotely suggestthe rejection of recovery for intangible loss; eachclaim must be judged on its own merits, and inmany cases the involved statutes, precedents, orpolicy will induce acceptance of the assertedcause of action.* * *Plaintiffs place particular emphasis on Dillonv. Legg (1968) 68 Cal. 2d 728, 69 Cal. Rptr. 72,441 P.2d 912, which upheld a cause of action forinjuries flowing from a mother's emotional traumain witnessing the death of her child. We suggestedthat the cause of action should be sustainedwhenever the injury was "reasonably foreseeable"(p. 741, 69 Cal. Rptr. 72, 441 P.2d 912), and thatone factor to be considered was "whether plaintiffand the victim were closely related." (Ibid.)Plaintiffs urge that we follow that paradigm fordecision of the instant case.In Dillon, however, we carefully limited ourruling to a case in which the plaintiff sufferedphysical injury. (68 Cal. 2d at p. 740, 69 Cal. Rptr.72, 441 P.2d 912.) Subsequent decisions,interpreting our holding in Dillon, have refused torecognize a cause of action in a case in which theplaintiff suffered no physical injury himself as aresult of witnessing the infliction of injury upon afamily member. (See Krouse v. Graham, Cal., 137Cal. Rptr. 863, 562 P.2d 1022; Capelouto v.Kaiser Foundation Hospitals (1972) 7 Cal. 3d889, 892 fn. 1, 103 Cal. Rptr. 856, 500 P.2d 880;Hair v. County of Monterey, supra, 45 Cal. App.3d 538, 542, 119 Cal. Rptr. 639.) Thus Dillon andsubsequent authority support our decision in thiscase to deny a cause of action founded uponpurely intangible injury.We therefore conclude that we should notrecognize a cause of action by a child for loss ofparental consortium. 1 * * *In summary, we do not doubt the reality or themagnitude of the injury suffered by plaintiffs. Weare keenly aware of the need of children for thelove, affection, society and guidance of theirparents; any injury which diminishes the ability ofa parent to meet these needs is plainly a familytragedy, harming all members of that community.We conclude, however, that taking into account allconsiderations which bear on this question,including the inadequacy of monetarycompensation to alleviate that tragedy, thedifficulty of measuring damages, and the dangerof imposing extended and disproportionateliability, we should not recognize a nonstatutorycause of action for the loss of parental consortium.The judgment is affirmed.CLARK, RICHARDSON, SULLIVAN(Retired Associate Justice of the Supreme Courtsitting under assignment by the Chairman of theJudicial Council), and WRIGHT (Retired ChiefJustice of the Supreme Court sitting underassignment by the Acting Chairman of the JudicialCouncil), JJ., concur.MOSK, Justice, dissentingI dissent.Each of the policy arguments which themajority marshal against recognizing the cause ofaction for loss of consortium in the parent-childrelationship was expressly considered and rejectedby this court in Rodriguez v. Bethlehem SteelCorp. (1974) 12 Cal. 3d 382, 115 Cal. Rptr. 765,525 P.2d 669.First, the majority assert that becausedeprivation of consortium is an "intangible,nonpecuniary" loss, it is an injury which "cannever be compensated." In Rodriguez, however,1The considerations which lead us to reject a cause ofaction for negligent injury to consortium in a parent-childcontext do not bar an action for intentional interferencewith parental consortium. An action for intentionalinterference with consortium, recognized by precedent inCalifornia (see Rosefield v. Rosefield (1963) 221 Cal. App.2d 431, 34 Cal. Rptr. 479) is a relatively unusual tort thatpresents no danger of multiplication of claims or damages.The ruling, moreover, may serve to deter child stealingand similar antisocial conduct.BORER V. AMERICAN AIRLINES

192 3. DAMAGESwe held that loss of consortium is principally aform of mental suffering, and like all suchsubjective disabilities, it is compensable indamages. (Id. 12 Cal. 3d at p. 401, 115 Cal. Rptr.765, 525 P.2d 669.) Nor was this new law, as weshowed by quoting with approval from earlierdecisions of this court.* * *The majority reject plaintiffs' claim for asecond reason, i.e., that "because of its intangiblecharacter, damages for such a loss are verydifficult to measure." This merely restates the firstreason, and was likewise rejected in Rodriguez.The loss here is no more and no less "intangible"than that experienced by Mrs. Rodriguez, whosehusband became permanently incapacitated, andyet we held the valuation problem to be difficultbut manageable....* * *I conclude that there is no escaping theconflict between the reasoning of the majorityherein and the letter and spirit of Rodriguez. Yetthe majority repeatedly reaffirm the holding ofthat decision. One can only infer that themajority's true motivation is neither the claimedinadequacy of monetary compensation for thisloss, nor the difficulty of measuring damages, northe danger of disproportionate liability. These aremere window-dressing, designed to lend anappearance of logic and objectivity to what is infact a purely discretionary exercise of the judicialpower to limit the potential liability of commonlaw tort-feasors. The majority suggest their actualincentive earlier in the opinion, when they reasonthat the victim foreseeably has not only ahusband, children, and parents, but also"brothers, sisters, cousins, inlaws, friends,colleagues, and other acquaintances who will bedeprived of her companionship. No one suggeststhat all such persons possess a right of action forloss of (the victim's) consortium; all agree thatsomewhere a line must be drawn."I agree that it must, but I cannot subscribe tothe majority's ad terrorem argument fordetermining the proper place to draw such aline....* * *There is, in short, no valid excuse fordenying these children their day in court. Justice,compassion, and respect for our humanitarianvalues require that the "line" in this matter bedrawn elsewhere.I would reverse the judgment.Questions and Notes1. Dillon, Rodriguez and Borer were decidedby the same court. Are they consistent?2. The treatment of claims for parentalconsortium continues to vary from jurisdiction tojurisdiction; Ernest J. Szarwark, Recovery forLoss of Parental Consortium in Non-wrongfulDeath Cases, 25 Whittier L. Rev. 3 (2003);Radensky, The Child's Claim for Loss of ParentalConsortium - the Prospects for the Nineties (TheDecade of a Kinder, Gentler Society?), 17 W. ST.U.L. REV. 277 (1990).3. If you were writing a statute to codify thecomputation of damages in personal injuryactions, what rule(s) would you adopt withrespect to recovery by parties who either witnessaccidents or are related to injury victims?§ C. The Size of DamageAwards1. How Much is Too Much (or TooLittle)?FORTMAN v. HEMCO, INC211 Cal. App. 3d 241, 259 Cal. Rptr. 311(1989)Arleigh M. WOODS, Presiding Justice[Nichole Fortman, a minor, sustainedpermanent and extensive injuries when she wasejected from her parents' jeep after inadvertentlyunlatching the passenger door while the car wasin operation. The door, which was rear hingedand front opening, caught the wind and flew openejecting Nichole, who had snagged her sleeve onthe door handle. She fell to the street and was runover by another vehicle. In her lawsuit NicholeBORER V. AMERICAN AIRLINES

§ C. THE SIZE OF DAMAGE AWARDS 193alleged that the jeep door was defective by reasonof being rear hinged and front opening andbecause of its use of exposed door handles. Thedoor was part of a fiberglass jeep top sold to jeepowners as an after-market product. 1The liability theory applied in this case is thatof strict liability. The main liability issuediscussed is: Did Hemco's participation in theproduction of the rear-hinged, front-openingdoors (which were determined to be defective) onthe jeep contribute to the overall manufacturingenterprise of the jeep doors? The sub-issues thatdetermine this question include Hemco's makingof the mold for the jeep top and doors, the use ofexposed, nonrecessed interior door handles, andthe participation of Ronald Hill, the president ofHemco. The court answered "yes" to the principalissue and declared Hemco strictly liable.]* * *IIIAHemco makes a number of argumentsregarding the propriety of the damages that wereawarded to Nichole. Before reaching thosearguments it is necessary to set forth the evidencerelevant to the damages issue. 9The record reveals that the injuries thatNichole sustained from the accident arepermanent and catastrophic.Dr. William Kneeland, a board certifiedpediatric neurologist, testified to her injuries andfuture medical expenses. Immediately after theaccident, she was rushed from the scene to anearby hospital where she remained in a coma forfour months. Dr. Kneeland began to treat Nicholefive weeks later. Dr. Kneeland was brought inbecause of Nichole's continuing coma andbecause she was experiencing convulsions. At thetime he first saw her she was being treated by anumber of doctors for her various injuries: anorthopedic doctor for broken bones, an oralsurgeon for broken jaw and facial bones, a1The Fortmans had purchased their jeep second handfrom a private party.9Hemco failed to set forth an account of the evidenceto support its claim of excessive damages. Such failure canresult in the argument being deemed waived. (Leming v.Oilfields Trucking Co. (1955) 44 Cal. 2d 343, 356, 282P.2d 23.) Nonetheless, we will consider Hemco's argumentin the interests of justice.urologist for kidney damage, and a pulmonaryspecialist for lung damage. She requiredmechanical ventilation in order to breath and hadundergone a tracheotomy.Dr. Kneeland's examination of Nicholerevealed significant brain injury, specifically tothe cerebral hemispheres of her brain and to herspinal cord. X-rays also showed atrophy, ashrinkage of the brain, which is an irreparablecondition. Nichole underwent a craniotomy torelieve pressure from fluids that had collected inher brain.At the time of her release, Nichole was stillcomatose. When she eventually regainedconsciousness, she was, and is, a paraplegic. Shehas no bowel or bladder function. She suffersfrom scoliosis, and must wear a body brace. Toprevent seizures she takes phenobarbital, andmacrodantin to prevent urinary tract infections. Atsome point she may require a colostomy.As a result of the severe damage to her brain,Nichole will function at a five-year-old'sintellectual level for the rest of her life. For awhileshe suffered cortical blindness, a condition inwhich the brain is unable to recognize an objectthat the eyes see. Even now she has perceptualproblems and is sometimes unable to identifyobjects correctly.Nonetheless, given appropriate care, Nicholewill have a normal life expectancy which, at thetime of trial, was estimated to be 70.9 years. Shewill never be self-sufficient, however, and willincur lifetime expenses for nursing and medicalcare and for therapy. Dr. Kneeland estimated that,in 1985 dollars, this care would cost $180,895 peryear.The largest single component of this expenseis 16-hour-a-day nursing care estimated by Dr.Kneeland to cost $125,000 per year. Additionally,Dr. Kneeland testified that Nichole would requirephysician services for the rest of her life from arange of doctors, including a neurologist, apediatrician, an orthopedic surgeon and anophthalmologist. Extensive and varied laboratoryservices will also be required. Further expenseswill also be incurred for educational andtherapeutic services, including physical,occupational and speech therapy. Dr. Kneelandtestified that Nichole would require a speciallyequippedvan, wheelchairs and other medicalappliances over the course of her life. Finally, shewill also require medicines.Peter Formuzis, an economist, testified to thepresent cash value of Nichole's future expensesFORTMAN V. HEMCO, INC.

194 3. DAMAGESbased, in part, upon Dr. Kneeland's figures. Usingan actuarial table showing Nichole's lifeexpectancy to be 70.9 years he calculated thepresent cash value of her future medical expensesto be $16 million. He also calculated her lifetimelost wages to be between $884,078 and$1,132,599.Hemco did not put on evidence regardingdamages.The jury's subsequent award for economiclosses was $17,742,620. Noneconomic damageswere assessed at $6 million.BHemco argues that the trial judge failed tomake an independent assessment of the evidencerelating to damages before denying Hemco's newtrial motion. This contention is utterly withoutsubstance.Code of Civil Procedure section 657 providesin part: "A new trial shall not be granted ... uponthe ground of excessive or inadequate damages,unless after weighing the evidence the court isconvinced from the entire record, includingreasonable inferences therefrom, that the court orjury should have reached a different verdict ordecision." Accordingly, in deciding whether togrant a new trial "the trial court mustindependently weigh the evidence and assesswhether it sufficiently supports the jury's verdict.[Citations.]" (People v. Capps (1984) 159 Cal.App. 3d 546, 552, 205 Cal. Rptr. 898, fn.omitted.) As a corollary to this rule, the trialcourt's ruling "is entitled to great weight" onappeal. (Hilliard v. A.H. Robins Co. (1983) 148Cal. App. 3d 374, 414, fn. 28, 196 Cal. Rptr. 117.)Hemco relies on Lippold v. Hart (1969) 274Cal. App. 2d 24, 78 Cal. Rptr. 833, a rare reversalof a trial court's denial of a new trial. The judge inLippold denied the motion for new trial in apersonal injury action even though he believed theverdict was unfair and questioned the defendant'scredibility as a witness. His reason for denying themotion was his belief that he was bound by thejury's unanimous verdict. On appeal, his rulingwas reversed. The appellate court stated that thetrial court is not bound by the jury's verdict butmust "reweigh the evidence, the inferencestherefrom, and the credibility of the witnesses indetermining whether the jury `clearly should havereached a different verdict' [citations]." (Id., at pp.25-26, 78 Cal. Rptr. 833.)Hemco would liken the actions of the judge inLippold to that of the judge in the case before us,but there is no comparison.Here, the trial judge conducted the trial in aninformed, intelligent and scrupulously unbiasedmanner. On the specific issue of his handling ofthe new trial motion, it is quite clear that he waswell aware of his duty to independently assess theevidence. Indeed, in reference to the liabilityissue, the judge expressly stated that he had"reviewed the evidence" and made his "ownindependent assessment" of whether it supportedimposition of liability. It is simply not plausiblethat the judge could have discharged his dutyproperly with reference to the liability issue butnot damages. The fact that he did not makeexplicit reference to the independent assessmentstandard in passing upon damages is notdeterminative. On appeal, where the record issilent we presume that an official duty has beencorrectly performed. (People v. Mack (1986) 178Cal. App. 3d 1026, 1032, 224 Cal. Rptr. 208;Evid. Code, § 664.)Equally unconvincing is Hemco's citation to aremark by the trial judge that he was "limited bythe evidence at trial" in ruling on the new trialmotion. This observation is absolutely correct. Atrial judge is limited to a review of the evidence attrial and, as this judge recognized, cannot beguided by personal bias or belief. This remark inno way shows that he failed to independentlyassess the evidence. Rather, the remark revealsthat he had performed his function fairly andimpartially and determined there was no rationalbasis in the evidence to warrant a new trial ondamages. We accord this determination greatweight as we approach Hemco's remainingarguments.CHemco maintains that the award of damageswas excessive. It is well settled that damages areexcessive only where the recovery is so grosslydisproportionate to the injury that the award mayhave been presumed to have been the result ofpassion or prejudice. Then the reviewing courtmust act. (Bertero v. National General Corp.(1974) 13 Cal. 3d 43, 64, 118 Cal. Rptr. 184, 529P.2d 608; Fagerquist v. Western Sun Aviation, Inc.(1987 191 Cal. App. 3d 709, 727, 236 Cal. Rptr.633.) The reviewing court does not act de novo,however. As we have observed, the trial court'sdetermination of whether damages were excessive"is entitled to great weight" because it is bound bythe "more demanding test of weighing conflictingevidence than our standard of review under thesubstantial evidence rule...." (Hilliard v. A.H.

§ C. THE SIZE OF DAMAGE AWARDS 195Robins Co., supra, 148 Cal. App. 3d at p. 414, fn.28, 196 Cal. Rptr. 117.) All presumptions favorthe trial court's determination (Fagerquist v.Western Sun Aviation, Inc., supra, 191 Cal. App.3d at p. 727, 236 Cal. Rptr. 633), and we reviewthe record in the light most favorable to thejudgment (Neal v. Farmers Ins. Exchange (1978)21 Cal. 3d 910, 927, 148 Cal. Rptr. 389, 582 P.2d980).In light of these rules we reject Hemco'sattack on the substantiality of the evidence tosupport that portion of the jury's award of$17,742,620 attributable to Nichole's economiclosses. 10 Hemco attacks the testimony ofeconomist Formuzis, claiming that his relianceupon Dr. Kneeland's estimate of Nichole's medicalexpenses was improper because Dr. Kneeland hadno sufficient basis for estimating those costs.Hemco's argument is more rhetorical than real andamounts to a belated attack on the credibility ofNichole's witnesses. As we previously observed,however, it is not our function to weighcredibility. (Hilliard v. A.H. Robins Co., supra,148 Cal. App. 3d at p. 414, fn. 23, 196 Cal. Rptr.117.)Nor is Hemco's reliance on Pacific Gas &Electric Co. v. Zuckerman (1987) 189 Cal. App.3d 1113, 234 Cal. Rptr. 630, persuasive insofar asit purports to support Hemco's argument thatFormuzis's reliance on Dr. Kneeland's estimationswas improper. The Pacific Gas decision involvedexpert testimony on the noel issue of the value ofstorage rights for underground reservoirs of gas.In that decision the record revealed that theplaintiff's expert disregarded pertinent informationand fabricated information without a factual basisto arrive at a vastly overinflated valuation of thosestorage rights. (Id., at pp. 1128-1134, 234 Cal.Rptr. 630.)Nothing comparable occurred in the casebefore us. There was nothing novel in the medicalor rehabilitative services which Dr. Kneelandtestified (orally and by written statement) Nicholewould require. Nor did Hemco challenge theveracity of Dr. Kneeland's cost estimation or themanner by which it was derived. Hemco put on noevidence of its own on this issue. Only now, onappeal, does Hemco find reason to quarrel withthose assumptions. It does so in the wrong forum.Addressing a similar contention, the court inNiles v. City of San Rafael (1974) 42 Cal. App. 3d230, 243, 116 Cal. Rptr. 733, said: "The experttestimony was substantial evidence supportingthe portion of the award relating to the future costof attendant care. The substantial evidence test isapplied in view of the entire record; other than avigorous cross-examination of plaintiffs' expert,appellants presented no evidence on the cost ofattendant care. The elaborate economicarguments presented in the briefs of appellants ...might better have been presented to the jury inopposition to respondents' expert testimony." Inour case, too, the testimony which we set forth inpart III A is substantial evidence supporting theaward for Nichole's future medical expenses.* * *The judgment is affirmed. Nichole to recoverher costs on appeal.Questions and Notes1. Note also that when a physician commitsmalpractice after an auto accident, she is notliable for whatever damage was already present(no causation). Instead, she is liable only for thedamage she caused; for that "second" injury shewill be jointly and severally liable with theoriginal tortfeasor, subject to an allocation by thejury of their relative proportions of fault.Suppose, for example, that a negligent driverstrikes the plaintiff, causing an injury that, withproper medical care, would have been valued at$100,000. However, negligent medical care turnsit into a $200,000 injury. If the jury finds thatboth the physician and the driver are equally toblame for the worsening of the plaintiff'scondition (the driver for causing the plaintiff toneed medical care in the first place and thephysician for failing to deliver good medicalcare), then the cost of the total injury should beborne (assuming both the driver and the doctorhave deep enough pockets) in the ratio of$150,000 for the driver and $50,000 for thedoctor.10Actually, Hemco's challenge goes only to futuremedical expenses, leaving unchallenged that evidencewhich goes to lost future wages.FORTMAN V. HEMCO, INC.

196 3. DAMAGESFEIN v. PERMANENTE MEDICALGROUP175 Cal. Rptr. 177 (1981)REYNOSO, Associate JusticeThe constitutionality of major portions of theMedical Injury Compensation Reform Act(MICRA) is challenged.[Plaintiff suffered chest pains and wasnegligently cared for by defendant medical group.- ed.]* * *The jury found in favor of plaintiff andentered special findings on the amount ofdamages. Noneconomic damages, to compensatefor pain, suffering, inconvenience, physicalimpairment, loss of enjoyment of life and otherintangible damages from the time of injury untilplaintiff's death were found to be $500,000.Additional damages included lost wages until thetime of trial in the sum of $24,733; present cashvalue of future lost wages as a result of thereduction of plaintiff's life expectancy totalling$700,000; and present value of future medicalexpenses, amounting to $63,000.Pursuant to Civil Code section 3333.2, thetrial court ordered that the award of damages fornoneconomic losses be reduced from $500,000 to$250,000. And following Civil Code section3333.1, the trial court ordered that the award forlost wages to the time of trial be reduced bycollateral source disability payments of$19,302.83, leaving an award of $5,430.40. Thecourt further ordered that defendant pay futuremedical expenses which are not covered bymedical insurance provided by plaintiff'semployer up to $63,000. The court declined,however, to order that future lost wages andgeneral damages awarded by the jury be paidperiodically pursuant to Code of Civil Proceduresection 667.7; it ruled that the section is directoryand should not be applied to the case at bench.Both parties appeal.IWe are called upon to determine theconstitutionality of several provisions of MICRA.These sections deal with periodic payment of thejudgment (Code of Civ. Procedure, § 667.7), 1applicability of collateral benefits to offsetdamages (Civ. Code § 3333.1), 2 and the $250,000maximum recovery for noneconomic damages(Civ. Code § 3333.2) in personal injury actionsagainst health providers. 3 The attack is focused1Code of Civil Procedure section 667.7 provides inrelevant part:(a) In any action for injury or damages against aprovider of health care services, a superior courtshall, at the request of either party, enter a judgmentordering that money damages or its equivalent forfuture damages of the judgment creditor be paid inwhole or in part by periodic payments rather than bya lump-sum payment if the award equals or exceedsfifty thousand dollars ($50,000) in future damages. Inentering a judgment ordering the payment of futuredamages by periodic payments, the court shall make aspecific finding as to the dollar amount of periodicpayments which will compensate the judgmentcreditor for such future damages.2Civil Code section 3333.1 states:(a) In the event the defendant so elects, in an actionfor personal injury against a health care providerbased upon professional negligence, he mayintroduce evidence of any amount payable as abenefit to the plaintiff as a result of the personalinjury pursuant to the United States Social SecurityAct, any state or federal income disability or worker'scompensation act, any health, sickness orincome-disability insurance, accident insurance thatprovides health benefits or income-disabilitycoverage, and any contract or agreement of anygroup, organization, partnership, or corporation toprovide, pay for, or reimburse the cost of medical,hospital, dental, or other health care services. Wherethe defendant elects to introduce such evidence, theplaintiff may introduce evidence of any amountwhich the plaintiff has paid or contributed to securehis right to any insurance benefits concerning whichthe defendant has introduced evidence.(b) No source of collateral benefits introducedpursuant to subdivision (a) shall recover any amountagainst the plaintiff nor shall it be subrogated to therights of the plaintiff against a defendant.3Civil Code section 3333.2 provides:(a) In any action for injury against a health careprovider based on professional negligence, theinjured plaintiff shall be entitled to recoverFEIN V. PERMANENTE MEDICAL GROUP

§ C. THE SIZE OF DAMAGE AWARDS 197on the asserted unconstitutionality ofclassifications created by the Act. It is incumbenton us, therefore, to be respectful of the role courtsplay in such a review.The power to legislate, needless to say, is inthe Legislature, not the courts. Courts do notsubstitute their social and economic beliefs forthe judgment of the legislative bodies. (Fergusonv. Skrupa (1963) 372 U.S. 726, 730, 83 S. Ct.1028, 1031, 10 L. Ed. 2d 93, 97.) "Subject tospecific constitutional limitations, when thelegislature has spoken, the public interest hasbeen declared in terms well-nigh conclusive. Insuch cases the legislature, not the judiciary, is themain guardian of the public needs to be served bysocial legislation, " (Berman v. Parker (1954) 348U.S. 26, 32, 75 S. Ct. 98, 102, 99 L. Ed. 27, 37.)The California Supreme Court has enunciated thesame concept: "Courts have nothing to do withthe wisdom of laws or regulations, and thelegislative power must be upheld unlessmanifestly abused so as to infringe onconstitutional guaranties. The duty to uphold thelegislative power is as much the duty of appellatecourts as it is of trial courts, and under thedoctrine of separation of powers neither the trialnor appellate courts are authorized to "review"legislative determinations. The only function ofthe courts is to determine whether the exercise oflegislative power has exceeded constitutionallimitations." (Lockard v. City of Los Angeles(1949) 33 Cal. 2d 453, 461-462, 202 P.2d 38.)With the above principles in mind, we turn tothe constitutional attack on the legislation.Plaintiff assails the constitutionality ofselected provisions of MICRA on the followinggrounds: (1) MICRA violates the equal protectionclause of the United States and CaliforniaConstitutions; (2) MICRA deprives plaintiff ofdue process of law; (3) MICRA violates the rightto trial by jury and (4) the Act isunconstitutionally vague and uncertain.The provisions of MICRA which plaintiffattacks involve three changes affecting plaintiffswho prevail in medical malpractice suits againstnoneconomic losses to compensate for pain,suffering, inconvenience, physical impairment,disfigurement and other nonpecuniary damage.(b) In no action shall the amount of damages fornoneconomic losses exceed two hundred fiftythousand dollars ($250,000).health care providers. Civil Code section 3333.1abrogates the "collateral source rule" in suchsuits. (See Helfend v. Southern Cal. Rapid TransitDist. (1970) 2 Cal. 3d 1, 13, 84 Cal. Rptr. 173,465 P.2d 61, for a statement of the rule.) CivilCode section 3333.2 limits awards fornoneconomic or nonpecuniary damages to$250,000. Finally, under Code of Civil Proceduresection 667.7, awards for future losses may beordered to be paid in periodic installments ratherthan a lump-sum. Plaintiff argues that thesesections cannot be shown to be a rational methodof dealing with the purported "crisis" whichspawned their enactment.A. The Equal Protection ArgumentWe first address the assertion by plaintiff thatthe above provisions of the Act violate the equalprotection clauses of both the federal and stateConstitutions. In making this argument, plaintiffasserts that the Act unlawfully discriminatesagainst plaintiffs who are victims of medicalmalpractice, by setting up arbitrary andunreasonable classifications which bear nosubstantial relation to the object of the legislation.As a foundation to his argument that thelegislation at issue is arbitrary and unreasonableand thus violative of equal protection, plaintiffseeks to show that the alleged "crisis" pursuant towhich the legislation was enacted was largelyfabricated. This "crisis," plaintiff maintains, wasbrought about, not by increasing medicalmalpractice suits and verdicts, but by stockmarket losses incurred by insurance companies.Hence, he contends that there is and was nolegitimate state purpose to sustain the Act.In 1975, a special session of the Legislaturewas called by the governor to grapple with theproblem of increasing medical malpracticeinsurance premiums. Upon enacting MICRA, theLegislature proclaimed: "The Legislature findsand declares that there is a major health care crisisin the State of California attributable toskyrocketing malpractice premium costs andresulting in a potential breakdown of the healthdelivery system, severe hardships for themedically indigent, a denial of access for theeconomically marginal, and depletion ofphysicians such as to substantially worsen thequality of health care available to citizens of thisstate. The Legislature, acting within the scope ofits police powers, finds the statutory remedyherein provided is intended to provide an adequateand reasonable remedy within the limits of whatFEIN V. PERMANENTE MEDICAL GROUP

198 3. DAMAGESthe foregoing public health and safetyconsiderations permit now and into theforeseeable future." (Stats. 1975, Second Ex.Sess., ch. 2, § 12.5, p. 4007.)Plaintiff urges us to reconsider theLegislature's findings and to declare that there wasno health care crisis. In making this argumentplaintiff cites various published articles andstudies, and has appended certain articles to hisbrief. Defendant responds that a crisis did exist,and in support of that argument cites publishedarticles to that effect. Amicus curiae have citedadditional articles and appended texts to theirbriefs to support the Legislature's finding.In making this request, plaintiff asks the courtto assume a role which is not ours to assume. "Acourt cannot declare legislation invalid because itdisagrees with its desirability." (Werner v.Southern Cal. etc. Newspapers (1950) 35 Cal. 2d121, 130, 216 P.2d 825.) Rather, our role islimited to a determination of whether thelegislation is constitutional. (See Lockard v. Cityof Los Angeles (1949) 33 Cal. 2d 453, 461, 202P.2d 38.)In assessing the constitutional validity of theAct, our initial inquiry concerns the appropriatestandard of review. California courts, togetherwith the U.S. Supreme Court, employ thetwo-tiered standard of review where statutes areattacked upon equal protection grounds. (SeeD'Amico v. Board of Medical Examiners (1974)11 Cal. 3d 1, 112 Cal. Rptr. 786, 520 P.2d 10.) Incases involving suspect classifications such asrace or sex, or affecting fundamental interests thatare explicitly or implicitly guaranteed by theConstitution (i.e., voting rights or education), the"strict scrutiny" test is applied (Hawkins v.Superior Court (1978) 22 Cal. 3d 584, 592, 150Cal. Rptr. 435, 586 P.2d 916). Under this standard,the courts conduct an "active and critical analysis"of the controverted classification. (Serrano v.Priest (1971) 5 Cal. 3d 584, 597, 96 Cal. Rptr.601, 487 P.2d 1241.) The state must sustain itsburden of establishing "`not only that it has acompelling interest which justifies the law but thatthe distinctions drawn by the law are necessary tofurther its purpose.' (Citations.)" (Ibid.) In allother cases, such as those involving economicregulation or social welfare legislation "in whichthere is a `discrimination' or differentiation oftreatment between classes or individuals(,)" thetraditional standard of review is employed.(D'Amico v. Board of Medical Examiners, supra,11 Cal. 3d at p. 16, 112 Cal. Rptr. 786, 520 P.2d10.) This standard simply requires that"distinctions drawn by a challenged statute bearsome rational relationship to a conceivablelegitimate state purpose." (Westbrook v. Mihaly(1970) 2 Cal. 3d 765, 784, 87 Cal. Rptr. 839, 471P.2d 487; D'Amico v. Board of MedicalExaminers, supra, 11 Cal. 3d 1, 112 Cal. Rptr.786, 520 P.2d 10; Cooper v. Bray (1978) 21 Cal.3d 841, 846, 148 Cal. Rptr. 148, 582 P.2d 604.)It is the latter "rational relationship" standardwe now apply to review the constitutionality ofMICRA pursuant to plaintiff's equal protectionchallenge. Clearly no "suspect classification" orfundamental interest is here involved whichwould subject the statute to a higher level ofjudicial scrutiny. (See Brown v. Merlo (1973) 8Cal. 3d 855, 862, 106 Cal. Rptr. 388, 506 P.2d212: the right to sue for negligently inflictedpersonal injuries is not a fundamental interest.)Plaintiff contends that the provisions ofMICRA limiting the amount of recovery in anaction against a health care provider andauthorizing periodic payment of the judgmentdeny him the right to a jury trial and thus must beconsidered under the "strict scrutiny" test of equalprotection. We reject this contention. Plaintiff'sargument fails to consider the distinction betweenlegislative acts and judicial acts. It is the provinceof the Legislature to make general rules and theprovince of the courts to apply the general rule toa state of facts. (Smith v. Strother (1885) 68 Cal.194, 197, 8 P. 852. See also Marin Water etc. Co.v. Railroad Com. (1916) 171 Cal. 706, 712, 154 P.864.) It is within the power of the Legislature tocreate and abolish causes of action and todetermine a remedy which will be provided in agiven set of circumstances. (See Modern BarberCol. v. Cal. Emp. Stab. Com. (1948) 31 Cal. 2d720, 723, 192 P.2d 916.) In enacting Civil Codesection 3333.2 and Code of Civil Proceduresection 667.7, the Legislature has performed afunction within the ambit of this authority. Indoing so, it has not denied the right to a jury trialto determine the factual issues in the case.Therefore, we deem the "rational basis" testthe correct standard to apply. Plaintiff contendsthat MICRA fails to satisfy this test. We disagree.Under that standard wide discretion is vested inthe Legislature in making a classification. Further,the statute is imbued with a presumption ofconstitutional validity (Mathews v. Workmen'sComp. Appeals Bd. (1972) 6 Cal. 3d 719, 739, 100Cal. Rptr. 301, 493 P.2d 1165; Cooper v. Bray,supra, 21 Cal. 3d 841, 846, 148 Cal. Rptr. 148,FEIN V. PERMANENTE MEDICAL GROUP

§ C. THE SIZE OF DAMAGE AWARDS 199582 P.2d 604), and the party challenging it bearsthe burden of proving it invalid. (Blumenthal v.Board of Medical Examiners (1962) 57 Cal. 2d228, 233, 18 Cal. Rptr. 501, 368 P.2d 101.) Adistinction is not arbitrary if any set of facts maybe reasonably conceived in its support.After applying the proper standard to this casewe cannot disturb the Legislature's finding that ahealth care crisis did exist. The sum total of thearticles on the question submitted by the parties tothis litigation establish that the question cannot besaid to be one where there may be no difference ofopinion or which is not debatable. Indeed, theissue appears to be one which is widely debatedand subject to substantial divergence of opinion.In such circumstances it is for the Legislature andnot the courts to determine whether the exercise ofthe state police power is warranted.We likewise decline to hold that the "crisis" ispast and that the legislation is therefore of nocontinued validity. When the Legislature hasdetermined that a need for legislation exists it isalso for the Legislature to determine whether theneed has passed and the legislation should berepealed. Moreover, everything submitted insupport of the need for legislation indicates thatthe "crisis" was not of a sudden nature, but wasbuilt up over an extensive period of time. As theJoint Legislative Audit Committee stated in itsreport to the Legislature: "It is apparent from aclose reading of the report that harbingers of thepresent `malpractice crisis' have been evident foryears to the Department of Insurance." Undersuch circumstances the Legislature could wellconclude that continued application of its reformact is necessary to prevent recurrence of the crisis.Moreover, we cannot rule, as plaintiffrequests, that the means chosen by the Legislaturewere irrational and arbitrary responses to theperceived crisis. The crisis which MICRA wasdesigned to relieve was in the health care industry.Indicia of the problem included significantlyincreasing numbers of suits against health careproviders and increasing settlements and awardsin those suits, projected losses related tomalpractice insurance, a decrease in the number ofcompanies willing to provide malpracticeinsurance, and skyrocketing costs of suchinsurance. The Legislature could reasonablydetermine that the elimination of the collateralsource rule, limitation of awards for nonpecuniarydamages, and the payment of damages by periodicinstallments over the period during which thedamages would be incurred would have the effectof reducing the costs of insuring health careproviders without depriving the injured party ofprovision for his needs. Whether this is themethod we would have chosen to deal with thesituation is irrelevant so long as it is not aconstitutionally defective method.Under such circumstances, the legislativedecision to focus its reform efforts upon lawsuitsagainst health care providers rather than upon tortactions in general bore a rational relationship tothe state purpose involved in the legislation andcannot be said to be arbitrary.Thus, we reject plaintiff's attack on equalprotection grounds and uphold the challengedprovisions of the Act which limit plaintiff'srecovery of noneconomic losses, restrictapplication of the collateral source rule, andprovide for periodic payments of future damages.B. Due ProcessPlaintiff contends that Code of CivilProcedure section 667.7 of MICRA, providing forperiodic payment of the judgment, denies him dueprocess in arbitrarily depriving him of a propertyright. He argues further that the section fails toprovide for additional care should plaintiff'scondition worsen, and that these burdens are notimposed upon other similarly situated plaintiffs.We agree with the statement that a personalinjury judgment cannot be taken away arbitrarily.However, Code of Civil Procedure section 667.7does not deprive plaintiff of his judgment; itmerely changes the form the award takes. Plaintiffhas no constitutional property right or interest inthe manner of payment for future damages.Except as constitutionally limited, the Legislaturehas complete power to determine the rights ofindividuals. (Modern Barber Col. v. Cal. Emp.Stab. Com., supra, 31 Cal. 2d 720, 726, 192 P.2d916.) It may create new rights or provide thatrights which have previously existed shall nolonger arise, and it has full power to regulate andcircumscribe the methods and means of enjoyingthose rights. (Ibid.) It has consistently been heldthat the Legislature has the power to abolishcauses of action altogether. (Werner v. SouthernCal. etc. Newspapers, supra, 35 Cal. 2d, at p. 126,216 P.2d 825; Langdon v. Sayre (1946) 74 Cal.App. 2d 41, 43-44, 168 P.2d 57.)Therefore, in view of this authority, theLegislature was justified in imposing thechallenged limitations upon plaintiff's right ofrecovery. Further, in light of the fact we havedetermined that MICRA satisfies constitutionalFEIN V. PERMANENTE MEDICAL GROUP

200 3. DAMAGESrequisites in creating classifications bearing arational relation to the state goal, we rejectplaintiff's averment that the Act arbitrarily denieshim due process of law.C. Right to Jury TrialPlaintiff argues that Code of Civil Proceduresection 667.7 impermissibly deprives him of theconstitutional right to jury trial since it requiresthe judge to determine the dollar amount ofperiodic payments. We disagree. Plaintiff's right tojury trial was strictly observed in this instance,and we see no reason to believe other cases willdiffer in safeguarding this important right. Thejury in this case heard evidence as to the facts,made findings on those facts and decided theamount of damages to be awarded. Section 667.7merely requires that at least a portion of thejudgment payments be made on a periodic basis.We do not find this to be an unwarrantedcompromise or curtailment of the jury trial towhich plaintiff was entitled.* * *Questions and Notes1. Would you have voted for MICRA? Whyor why not? Was it an appropriate response tocases of this type?2. Should MICRA's limits on damages beimposed in areas other than medical malpractice?Why or why not?providers is the compensation provided by thecontingent fee system. Recent empirical researchsheds some light on the issue: Lester Brickman,Effective Hourly Rates of Contingency-feeLawyers: Competing Data and Non-competitiveFees, 81 Wash. U. L.Q. 6533. Tort reform legislation similar to MICRAhas been proposed in virtually every state, with anoverwhelming number adopting some form of"reform." From 1985 to 1987 "forty-twolegislatures have enacted some form of tort reformlegislation." Priest, The Current Insurance Crisisand Modern Tort Law, 96 Yale L.J. 1521, 1587(1987). Deborah J. La Fetra, Freedom,Responsibility, and Risk: Fundamental PrinciplesSupporting Tort Reform, 36 Ind. L. Rev. 645(2003). Courts are divided on theconstitutionality of statutes which reducedefendants' liability for negligently causedinjuries. For a survey of cases considering theseissues, see Nelson, Tort Reform in Alabama: AreDamages Restrictions Unconstitutional?, 40 Ala.L. Rev. 533 (1989).4. In Sofie v. Fibreboard, 112 Wash. 2d 636,771 P.2d 711 (1989), the Washington SupremeCourt declared unconstitutional a legislativerestriction on the award of non-economic (painand suffering) damages. The court found that thestate constitution's guarantee that the "right oftrial by jury shall remain inviolate" was breachedby limiting noneconomic damages to a formulabased on the plaintiff's life expectancy.3. One recurring complaint by health careFEIN V. PERMANENTE MEDICAL GROUP

§ C. THE SIZE OF DAMAGE AWARDS 2012. Collateral Source BenefitsSCHONBERGER v. ROBERTS456 N.W.2d 201 (Iowa 1990)HARRIS, J.When the legislature, in two separatestatutes, prohibits the application of a rule ofcommon law we are clearly obliged to yield tothe mandate. The question here is whether weshould give the mandate double effect. Thisappeal calls for interpretation of an Iowa statutewhich is in part designed to deal with a situationalready controlled by another statute. A literalinterpretation of the latter statute, in view of theprior one, would call for doubling an intendedreduction in tort recoveries. We believe the goalof the two statutes should be fully realized, butonly once. We affirm the trial court.On July 22, 1987, the plaintiff, RodneySchonberger, was driving west on U.S. Highway30 in Carroll, Iowa. He had picked up hisemployer's mail and was headed to work when anaccident occurred. Schonberger was preparing toturn into his employer's parking lot when he wasstruck by the defendant, Carroll John Roberts,who was driving a truck owned by defendantBuck Hummer Trucking, Inc.As a result of the accident Schonberger wasunable to return to work for three and one-halfweeks. He suffered injuries to his neck, back, andknee. His medical bills totaled $7625.40 at thetime of trial. These expenses, as well as futuremedical expenses, are being reimbursed as a partof the workers' compensation benefitsSchonberger is receiving. Schonberger's injurieswere permanent, and he will continue to incurmedical expenses as a result of the accident.Schonberger then brought this tort suit for hisinjuries which resulted in a jury verdict in hisfavor. The jury assessed eighty percent of thenegligence to Roberts and twenty percent toSchonberger. It determined past damages were$18,000 and that future damages were $115,000.The jury also found that Schonberger was notwearing a seat belt and determined the awardshould be reduced an additional two percent.Although defendants assert the damageawards were excessive - a matter we later address- the preeminent issue in the case is defendants'challenge to a trial court ruling refusing to admitevidence. Defendants sought to introduceevidence regarding the payment of medical billsand other workers' compensation benefits toSchonberger. The trial court ruled the evidenceinadmissible. This ruling is defendants' firstassignment of error on appeal.Since 1913 an Iowa statute, now Iowa Codesection 85.22 (1989), has provided a right ofindemnity to workers' compensation employers(or their insurers) for amounts paid under the Actfrom recoveries realized by the worker in tortactions for the same injuries. Without doubtSchonberger's workers' compensation insurer isentitled to be compensated from his recovery inthis suit for any amounts paid to or for him onaccount of this injury. See, e.g., Liberty Mut. Ins.Co. v. Winter, 385 N.W.2d 529, 531-32 (Iowa1986).In 1987 the General Assembly amended thecomparative fault Act, to include a specialprovision, Iowa Code § 668.14, 1 also aimed at1Section 668.14 provides:668.14 Evidence of previous payment or futureright of payment.1. In an action brought pursuant to this chapterseeking damages for personal injury, the court shallpermit evidence and argument as to the previouspayment or future right of payment of actualeconomic losses incurred or to be incurred as a resultof the personal injury for necessary medical care,rehabilitation services, and custodial care except tothe extent that the previous payment or future right ofpayment is pursuant to a state or federal program orfrom assets of the claimant or the members of theclaimant's immediate family. [Ed. Note: Apparentlythe worker's compensation program at issue here wasprivately run and therefore did not fall within thisexception.]2. If evidence and argument regarding previouspayments or future rights of payment is permittedpursuant to subsection 1, the court shall also permitevidence and argument as to the costs to the claimantof procuring the previous payments or future rights ofpayment and as to any existing rights ofindemnification or subrogation relating to theprevious payments or future rights of payment.3. If evidence or argument is permitted pursuant tosubsection 1 or 2, the court shall, unless otherwiseagreed to by all parties, instruct the jury to answerspecial interrogatories or, if there is no jury, shallmake findings indicating the effect of such evidenceor argument on the verdict.SCHONBERGER V. ROBERTS

202 3. DAMAGESprohibiting an injured worker to recover twice forthe same industrial injury. Both section 85.22 (in alimited situation) and section 668.14 (in a broadersense) are limitations on the collateral source rule,a principle long recognized as a part of ourcommon law. Under the collateral source rule atortfeasor's obligation to make restitution for aninjury he or she caused is undiminished by anycompensation received by the injured party from acollateral source. Clark v. Berry Seed Co., 225Iowa 262, 271, 280 N.W. 505, 510 (1938).The trial court's rejection of the profferedevidence was in reaction to the obviousinconsistency between compelling the injuredworker to pay back his benefits from his recoveryand at the same time have the jury reduce hisrecovery because of them. To remedy thisinconsistency the trial court rested its exclusion ofevidence of workers' compensation benefits onIowa rule of evidence 402 (all irrelevant evidenceis inadmissible). Schonberger argues in support ofthe ruling in part by contending that the workers'compensation Act is, because of its design andregulated status, a state program. State programsare expressly exempted from the sweep of section668.14.I. There are well-recognized limits to theextent to which courts will slavishly ascribe literalmeanings to the words of a statute. Becauselegislative intent is the polestar of statutoryinterpretationit is clear that if the literal import ofthe text of an act is inconsistent with thelegislative meaning or intent, or if suchinterpretation leads to absurd results, thewords of the statute will be modified toagree with the intention of the legislature.2A SUTHERLAND, STATUTORYCONSTRUCTION § 46.07 (Sands 4th Ed.1984) (citing Graham v. Worthington, 259Iowa 845, 854, 146 N.W.2d 626, 633(1966)).In construing various statutes we have oftenapplied this rule by refusing to attribute to theGeneral Assembly an intention to produce anabsurd result....In the last cited case we were faced with astatute which, literally interpreted, would lead to4. This section does not apply to actions governed bysection 147.136. [Medical malpractice cases.]an absurd result. We said:Such absurdity of result calls forscrutiny of the statute. Ad absurdum is a"Stop" sign, in the judicial interpretationof statutes. It is indicative of fallacysomewhere, either in the point of view orin the line of approach. In such case, itbecomes the duty of the court to seek adifferent construction, and to presumealways that absurdity was not thelegislative intent. To this end, it will limitthe application of literal terms of thestatute, and, if necessary, will evenengraft an exception thereon. Trainer,199 Iowa at 59, 201 N.W. at 67 (citationsomitted).A literal application of section 668.14 underthe present circumstances would also lead to anabsurd result. Under section 85.22 Schonbergermust repay from his recovery his workers'compensation insurer any benefits he hasreceived. The only conceivable purpose ofinforming the jury of those benefits is to invite thejury to reduce his recovery because of them. But,to any extent the jury does reduce the damageaward because of the benefits, Schonberger is ineffect paying, not once, but twice. We areconvinced the legislature did not intend to call forthis double reduction.To avoid this unintended result we interpretthe statute so as to deem its requirements satisfiedwhen the requirements of section 85.22 arecomplied with. The case is remanded to districtcourt for a proceeding in which it must beestablished that the proceeds of any recoveryreceived by Schonberger are pledged to reimbursehis workers' compensation insurer in accordancewith Iowa Code section 85.22. Upon such ashowing the judgment of the trial court shall standas affirmed.II. Defendants also complain of the amount ofthe award which, by present standards, doesappear to be generous for the injuries sustained.The amount is not however so flagrantlyexcessive as to compel our interference. See Sallisv. Lamansky, 420 N.W.2d 795, 799 (Iowa 1988).Affirmed and Remanded.All Justices concur except McGIVERIN, C.J.,and NEUMAN, and ANDREASEN, JJ., whodissent.McGIVERIN, Chief Judge (dissenting)SCHONBERGER V. ROBERTS

§ C. THE SIZE OF DAMAGE AWARDS 203I respectfully dissent.The majority opinion substantially sets asidethe clear terms of Iowa Code section 668.14 and,as a practical matter, fully reinstates the judiciallycreated collateral source rule by use of Iowa Ruleof Evidence 402, at least in cases where collateralbenefits are paid subject to a statutory right ofsubrogation.Unlike the majority, I believe that the terms ofsection 668.14 can be respected without visitinginequity on Schonberger and others in hisposition....One effect of the common law collateralsource rule is that in cases where the plaintiffreceives collateral benefits which are not paidsubject to a right of subrogation in the payor, andalso is compensated for the same injuries from atort suit against the defendant, the plaintiffreceives duplicate damages to the extent that thecollateral benefits and tort recovery overlap. 22AM. JUR. 2D Damages § 566 (1988). This iscommonly known as "double dipping" and isthought by tort defendants to unfairly overcompensatethe plaintiff. Carlson, Fairness inLitigation or "Equity for All," 36 DRAKE L. REV.713, 719 (1987). The counterargument is that toallow collateral benefits to reduce the tortrecovery would relieve the defendant of theconsequences of tortious conduct. Clark v. BerrySeed Co., 225 Iowa 262, 271, 280 N.W. 505, 510(1938). As between the plaintiff and the tortfeasor,the common law deems it more just that theplaintiff profit from collateral benefits. See id.; 22AM. JUR. 2D Damages § 566 (1988).On the other hand, in cases where collateralbenefits are paid subject to a right of subrogation,the plaintiff is not double dipping because thesubrogee will recover the collateral benefits out ofthe plaintiff's tort recovery from the defendant.Schonberger's case is a prime example of thissituation because under Iowa Code section 85.22,the workers' compensation benefits he receivedwill have to be repaid out of his tort recovery....IV. Instead of working within the statutoryframework mandated by the legislature in section668.14, the majority opinion sets it aside. Themajority's approach would require the trial judgeto exclude all evidence from the jury of collateralbenefits as irrelevant whenever the judge foundthat the benefits were paid subject to a right ofsubrogation. It would then be up to the judge toenforce those subrogation rights at a separatehearing following a plaintiff's verdict in the tortsuit....V. I would reverse the trial court judgmentand remand for a new trial on the issue ofdamages. The parties should be allowed tointroduce evidence before the jury pursuant toIowa Code section 668.14. Then the jury shouldbe instructed appropriately and allowed to statethe effect of such evidence on its verdict.The court should work within the intent andlanguage of section 668.14 rather than against it.Section 668.14 was the result of a studied decisionby the legislature to abrogate the collateral sourcerule as a common law rule of evidence, and toprevent double dipping. The majority effectivelyrefuses to acknowledge that fact. Therefore, Idissent.NEUMAN and ANDREASEN, JJ., join thisdissent.Questions and Notes1. For a discussion of the history of thecollateral source rule and legislativemodifications, see Flynn, Private MedicalInsurance and the Collateral Source Rule: AGood Bet?, 22 U. Tol. L. Rev. 39 (1990).2. The collateral source rule is a commoningredient in tort reform statutes. See Fein v.Permanente, supra; and R.C.W. 7.70.080, infraChapter Ten.3. Subrogation is a means by whichinsurance companies recover damages they havebeen forced to pay to their customers for damagecaused by the negligence of a third party. Forexample, when a homeowner suffers a fire causedby the negligence of a neighbor who was burningleaves, the fire insurance carrier for thehomeowner is obligated to pay the homeownerfor the damage. However, under the standardterms of a homeowner's insurance policy thecompany then has the right to file an actionagainst the negligent party as though theinsurance company were the homeowner."Subrogation" is the equivalent of allowing oneparty to "stand in the shoes" of someone who hasthe power to assign certain legal rights.4. Aside from the question of how much thedefendant will be forced to pay, is there any otherreason for allowing the evidence of collateralpayments to be presented to the jury?SCHONBERGER V. ROBERTS

204 3. DAMAGES3. The Scope of Acceptable ArgumentBOTTA v. BRUNNER26 N.J. 82, 138 A.2d 713 (1958)FRANCIS, J.* * *In prosecuting the appeal, plaintiff urged thatthe trial court also erred in refusing to permitcounsel to suggest to the jury in summation amathematical formula for the admeasurement ofdamages for pain and suffering. The AppellateDivision agreed with plaintiff's viewpoint. Theproblem is of sufficient current urgency todemand our attention.In his closing argument to the jury, afterspeaking of actual monetary losses, plaintiff'scounsel said:You must add to that, next, the painand suffering and the disability that shehas undergone from August 2d, 1953 tonow. Take that first. That is 125 weeks ofpain and suffering. Now, that is difficultto admeasure, I suppose. How much canyou give for pain and suffering? As aguide, I try to think of myself. Whatwould be a minimum that a person isentitled to? And you must place yourselfin the position of this woman. If you addthat disability which has been describedto you, and you were wearing this 24hours a day, how much do you think youshould get for every day you had to gothrough that harrowing experience, orevery hour?Well, I thought I would use this kindof suggestion. I don't know. It is for youto determine whether you think I am lowor high. Would fifty cents an hour forthat kind of suffering be too high?"On objection, the court declared theargument to be improper as to "the measure ofdamages for pain and suffering" and directed thatit be discontinued.But the Appellate Division sanctioned thepractice, saying:[W]e see no logical reason why thefair scope of argument in summation bytrial counsel should not be permitted toinclude mention of recovery in terms ofamount. It is well settled that counselmay advise the jury as to the amountsued for, Rhodehouse v. DirectorGeneral, 95 N.J.L. 355, 111 A. 662 (Sup.Ct. 1920), and we have recently held thathe may state his opinion that the juryshould allow a stated amount short of thesum sued for. Kulodzej v. Lehigh ValleyR. Co., 39 N.J. Super. 268, 120 A.2d 763(App. Div. 1956).The argument is sometimes heardthat since there is no evidence in the caseas to how much pain and suffering, or agiven physical disability, is worth indollars, and since it is the exclusivefunction of the jury to fix the amount byits verdict, counsel should not be allowedto ask the jury to return a named amount.Stassun v. Chapin, 324 Pa. 125, 188 A.111 (Sup. Ct. 1936). We do not think thisfollows. Counsel may argue from theevidence to any conclusion which thejury is free to arrive at, and we perceiveno sound reason why one of the mostvital subjects at issue, the amount ofrecovery, should not be deemed withinthe permitted field of counsel'spersuasion of the jury by argument. This,within reasonable limits, includes hissupporting reasoning, as in the presentcase, whether soundly conceived on themerits or not. Cf. Standard Sanitary Mfg.Co. v. Brian's Adm'r, 224 Ky. 419, 6S.W.2d 491, 493 (Ct. App. 1928); Dean v.Wabash R. Co., 229 Mo. 425, 129 S.W.953, 962 (Sup. Ct. 1910). If necessary,the trial court can in its instructionscaution the jury that the argument doesnot constitute evidence as to the amountof damages.For hundreds of years, the measure ofdamages for pain and suffering following in thewake of a personal injury has been "fair andreasonable compensation." This general standardwas adopted because of universalacknowledgment that a more specific or definitiveSCHONBERGER V. ROBERTS

§ C. THE SIZE OF DAMAGE AWARDS 205one is impossible. There is and there can be nofixed basis, table, standard, or mathematical rulewhich will serve as an accurate index and guide tothe establishment of damage awards for personalinjuries. And it is equally plain that there is nomeasure by which the amount of pain andsuffering endured by a particular human can becalculated. No market place exists at which suchmalaise is bought and sold. A person can sellquantities of his blood, but there is no mart wherethe price of a voluntary subjection of oneself topain and suffering is or can be fixed. It has neverbeen suggested that a standard of value can befound and applied. The varieties and degrees ofpain are almost infinite. Individuals differ greatlyin susceptibility to pain and in capacity towithstand it. And the impossibility of recognizingor of isolating fixed levels or plateaus of sufferingmust be conceded.* * *There can be no doubt that the prime purposeof suggestions, direct or indirect, in the opening orclosing statements of counsel of per hour or perdiem sums as the value of or as compensation forpain, suffering and kindred elements associatedwith injury and disability is to instill in the mindsof the jurors impressions, figures and amounts notfounded or appearing in the evidence. Anoutspoken exponent of the approach described itsaim in this fashion:When you break down pain andsuffering into seconds and minutes anddo it as objectively as this (on ablackboard), then you begin to make ajury realize what permanent pain andsuffering is and that $60,000 at fivedollars a day isn't an adequate award.(Insertion ours.)So let's put on the board $60,000 forpain and suffering. Of course in youropening statement you are onlyprivileged to say that you are going toexplain to the jury and ask for $60,000 aspain and suffering in order to make upyour total figure. It would be improper toargue, this must be reserved for the finalsummation. (Emphasis added.)The jurors must start thinking indays, minutes and seconds and in fivedollars, three dollars and two dollars, sothat they can multiply to the absolutefigure. Maybe your juror will feel that $5a day is not enough, that it should be $10per day. They may feel that it should be$4 or $3 a day. At least you have startedthem thinking; and when they follow themechanics of multiplication they must bythis procedure come to some substantialfigure if they are fair. A jury always triesto be fair. Never forget this." Belli, "TheUse of Demonstrative Evidence inAchieving the More Adequate Award,"Address before the Mississippi State BarAssociation (1954); BELLI, MODERNTRIALS, p. 1632 (1954).And:Depending on the jurisdiction it maybe permissible during argument to ask for$2 a day for pain and suffering." Id., §305(8).Clearly these statements are what analysisshows them to be - suggestions of valuations orcompensation factors for pain and suffering. Theyhave no foundation in the evidence. They importinto the trial elements of sheer speculation on amatter which by universal understanding is notsusceptible of evaluation on any such basis. Noone has ever argued that a witness, expert orotherwise, would be competent to estimate painon a per hour or per diem basis....* * *[The court ultimately affirmed the refusal ofplaintiff's requested instruction - ed.]Questions and Notes1. The jurisdictions are about evenly split onthe question of whether some variant of the "perdiem" argument is acceptable.2. Would you permit use of the "per diem"argument? Why or why not?BOTTA V. BRUNNER

206 3. DAMAGESSTECKER v. FIRST COMMERCIALTRUST CO.331 Ark. 452, 962 S.W.2d 792 (1998)NEWBERN, Justice.This is the second appeal concerning theliability of Dr. Rheeta Stecker for the death of herpatient, sixteen-month-old Laura Fullbright. FirstCommercial Trust Company ("FirstCommercial"), as administrator of the child'sestate, sued Dr. Stecker for medical malpracticeand for failure to report under the child-abusereportingstatute, Ark.Code Ann. §§ 12-12-501through 12-12-518 (Repl.1995 and Supp.1997).In addition to the action on behalf of the estate,First Commercial sued on behalf of several ofLaura Fullbright's relatives, individually. It wasalleged that Dr. Stecker's failure to reportevidence of physical abuse of the child resulted inthe child's death. In addition to Dr. Stecker, MaryEllen Robbins, the child's mother, and JosephRank who lived with Ms. Robbins and her childand who was convicted of murdering the child,see Rank v. State, 318 Ark. 109, 883 S.W.2d 843(1994), were named as defendants.In the first trial, Ms. Robbins was found notliable. Mr. Rank was found liable for damages toLaura Fullbright's halfbrother, but no damageswere awarded to the estate. Dr. Stecker was foundnot liable for civil penalties prescribed under thechild-abuse-reporting statute, and she wasawarded a directed verdict on the medicalmalpractice claim because the only medicalexpert witness sought to be presented by FirstCommercial was found not to be qualified totestify as to the standard of medical careconcerning child abuse in Hot Springs. Wereversed and remanded for a new trial on themedical malpractice claim, holding it was error tohave excluded the testimony of Dr. FrederickEpstein, the expert medical witness whosetestimony First Commercial sought to introduceon behalf of the estate. First Commercial TrustCo. v. Rank, 323 Ark. 390, 396, 915 S.W.2d 262,264 (1996).In the second trial, a jury verdict resulted in ajudgment against Dr. Stecker. She argues threepoints on appeal. First, she contends the doctrineof law of the case precludes any recovery againsther because the estate recovered no damages inthe first trial. Second, she contends her motionfor a directed verdict should have been grantedbecause there was insufficient evidence that herfailure to report the child's condition resulted inthe death. Finally, she argues her motion for amistrial should have been granted because ofimproper closing argument by counsel for FirstCommercial. We affirm the judgment.At the second trial, there was evidence fromwhich the jury could have concluded thefollowing. Dr. Stecker, a family practitioner,treated Laura Fullbright on several occasions priorto the child's death which occurred on September12, 1992. On June 12, 1992, Dr. Stecker sawLaura, who was 12 1/2 months old, for a "wellbaby check-up." Laura was brought to Dr. Steckerby Ms. Robbins, a pharmacist, whom Dr. Steckerregarded as a friend and colleague. She noticed avisible angulation of one of the baby's arms, andshe pointed the problem out to Ms. Robbins andto Mr. Rank. An x-ray showed the fracture of twobones in the child's left forearm. Ms. Robbins andMr. Rank indicated that they did not know thatthere was a problem. Dr. Stecker becameconcerned about the possibility of neglect orabuse. Dr. Stecker referred Laura to Dr. RobertOlive, an orthopedist. After seeing the x-rays aswell as the child and her mother, Dr. Olive wroteDr. Stecker that he did not think that there wasany evidence of neglect on the part of the parents.The letter from Dr. Olive did not totallyalleviate Dr. Stecker's suspicions of possibleabuse; however, she did not confront Ms.Robbins or Mr. Rank about her suspicions, contactthe baby's father, Jim Fullbright, about hersuspicions, or report her suspicions to any lawenforcement agency. Ms. Robbins did not tell JimFullbright about the broken arm because she knewthat he would "raise a fuss about it."On July 9, Dr. Stecker again examined Laura.Her notes reflect that the family had observed thatthe child was "wobbly" and running into things.Dr. Stecker found that she was better anddiagnosed the problem as ataxia or dizziness andconcluded that the child had been drinking toomuch juice. However, she also recognized that thesymptoms were consistent with other possibilities,including head trauma.On July 21, Laura was brought to the clinicwith both eyelids swollen, and Ms. Robbinsreported that the bruises were a result of the childfalling down several stairs. Dr. Stecker was notpresent and Dr. Stecker's husband, Dr. EltonStecker, saw the baby. Dr. Elton Stecker's nurserecorded that the child had been nauseated theprevious day and had vomited that morning.When she awoke, there was swelling on the rightSTECHER V. FIRST COMMERCIAL TRUST CORP.

§ C. THE SIZE OF DAMAGE AWARDS 207side of the head in the temple area and over theright eye.On July 22, Dr. Stecker again saw Laura, andshe read the record of the July 21 visit. At thistime, the child's eyelids were swollen, and Ms.Robbins reported that the child had fallen downseveral stairs. Ms. Robbins wondered if theswelling of the upper lids could be the result of anallergy or a spider bite, and she stated that Laurahad had watery nasal discharge which she felt wasdue to an allergy. Dr. Stecker wondered why therewere new falls when child had been seen in theclinic the day before. Dr. Stecker discussed thepossibility of abuse with Ms. Robbins. Ms.Robbins was adamant that abuse was highlyunlikely. She stated that her five-year-old soncarried Laura around and that he might havedropped her. She also told Dr. Stecker that herboyfriend did not have a temper. Dr. Stecker againconsidered reporting her suspicions of child abuseto the authorities; however, she did not. She madea conscious decision that there was not enoughevidence to put the family in jeopardy of aninvestigation.In August, there was an adult guest in Ms.Robbins's home, and nothing happened to thechild while he was present. On September 12,1991, Ms. Robbins returned home from work andfound Laura, whom she had left in the care of Mr.Rank, unconscious. She took the child to St.Joseph's Regional Medical Center in Hot Springs.Laura was transported to Arkansas Children'sHospital in Little Rock, where she was laterpronounced dead. The medical examinerdetermined that the cause of death was homicide.* * *3. Closing argumentIn her third point on appeal, Dr. Steckerargues that prejudicial error occurred during FirstCommercial's closing argument when FirstCommercial wove a "send a message" theme intothe argument even though punitive damages werenot at issue in the case. Early in FirstCommercial's closing argument on behalf ofLaura Fullbright's estate, it asked the jury not toapply a "weak" or "watered down" standard ofcare. Counsel for Dr. Stecker objected on theground that punitive damages had not beensought, and the argument was a "send a message"argument. The Trial Court responded that hewould take no action "until it happens." Later,First Commercial's counsel on several occasionsreferred to protecting "the children" and toprotecting "the Lauras of the world." Dr. Stecker'scounsel moved for a mistrial, and the motion wasdenied.It has indeed been held that an argumenthaving a "send a message" to the communitytheme may be improper when punitive damagesare not sought. See, e.g., Smith v. Courter, 531S.W.2d 743 (Mo.1976); Maercks v. Birchansky,549 So.2d 199 (Fla.App.1989). At first blush, theargument made on behalf of Laura Fullbright'sestate might seem to have had that as its theme. Inresponse to that contention, however, FirstCommercial argues that its counsel wasaddressing the standard of care to be exercised bya physician in circumstances such as those withwhich Dr. Stecker was presented and not thematter of damages.We agree with the contention of FirstCommercial that the opinions of Dr. Epstein andthat of Dr. Smith were very much at oddsconcerning the duty of a physician to reportsuspected child abuse. Dr. Smith felt a physicianshould be more than fifty percent certain beforemaking a report. Dr. Epstein opined that anysuspicion should be reported so that an objectivegovernment agency could make a determination.It is at least plausible that the reference to "thechildren" had to do with the standard of care to betaken by physicians rather than with a "message"to them.A mistrial is a drastic remedy that should onlybe used when there has been an error soprejudicial that justice cannot be served bycontinuing the trial, or when fundamental fairnessof the trial itself has been manifestly affected.Balentine v. Sparkman, 327 Ark. 180, 937 S.W.2d647 (1997). The Trial Court has wide discretion ingranting or denying a motion for mistrial, andabsent an abuse the decision will not be disturbed.Id.We hold that, viewing the closing argument inits entirety, the repeated references to protectionof "the children" did not necessarily evidence a"send a message" theme when combined with thediscussion of the standard of care and the otherpoints made in the closing argument. See Beis v.Dias, 859 S.W.2d 835 (Mo.App. S.D.1993);Derossett v. Alton and Southern Ry. Co., 850S.W.2d 109 (Mo.App. E.D.1993).Affirmed.STECHER V. FIRST COMMERCIAL TRUST CORP.

PART IIDEFENSES TO A PERSONALINJURY CASE

210 4. IMMUNITYIntroductory NoteEven where the plaintiff is able to show thatthe defendant's conduct meets the criteria in theprevious chapters and thus establishes a primafacie case of liability, the defendant may denyliability on the ground that he is entitled to somekind of affirmative defense. The term "defense" issometimes used generically to mean thedefendant's strategy at trial: for example, wherethe plaintiff claims that a driver was negligent, thedriver may pursue the "defense" of denying that hewas negligent, or denying that his negligencecaused the accident. This isn't the kind of defensewe will be looking at in Part II, because to thatextent we would simply be looking at a mirrorimage of the issues as have been previouslydiscussed. Instead, we are interested here inaffirmative defenses. The affirmative defensediffers from the simple denial of the plaintiff'scase in two respects: First, it is usually based uponsome new principle of law, such as the onesdiscussed in the next four chapters - immunity,contributory fault, multiple tortfeasor liability, andstatutes of limitation. Second, the defendantusually bears the burden of proof for anaffirmative defense. Thus, it is up to the defendantto plead and prove the existence of circumstancesexonerating him from liability.Chapter 4Immunity§ A. Governmental ImmunityFederal Tort Claims Act28 U.S.C. § 1346 et seq. (1946)§ 1346. United States as Defendant* * *(b) Subject to the provisions of chapter171 of this title, the district courts, togetherwith the United States District Court for theDistrict of the Canal Zone and the DistrictCourt of the Virgin Islands, shall haveexclusive jurisdiction of civil actions onclaims against the United States, for moneydamages, accruing on and after January 1,1945, for injury or loss of property, orpersonal injury or death caused by thenegligent or wrongful act or omission of anyemployee of the Government while actingwithin the scope of his office or employment,under circumstances where the United States,if a private person, would be liable to theclaimant in accordance with the law of theplace where the act or omission occurred.* * *§ 2674. Liability of United StatesThe United States shall be liable, respectingthe provisions of this title relating to tort claims, inthe same manner and to the same extent as aprivate individual under like circumstances, butshall not be liable for interest prior to judgment orfor punitive damages.If, however, in any case wherein death wascaused, the law of the place where the act oromission complained of occurred provides, or hasbeen construed to provide, for damages onlypunitive in nature, the United States shall be liablefor actual or compensatory damages, measured bythe pecuniary injuries resulting from such death tothe persons respectively, for whose benefit theaction was brought, in lieu thereof.§ 2680. ExceptionsThe provisions of this chapter and section1346(b) of this title shall not apply to -(a) Any claim based upon an act oromission of an employee of the Government,FEDERAL TORT CLAIMS ACT

§ A. GOVERNMENTAL IMMUNITY 211exercising due care, in the execution of astatute or regulation, whether or not suchstatute or regulation be valid, or based uponthe exercise or performance or the failure toexercise or perform a discretionary function orduty on the part of a federal agency or anemployee of the Government, whether or notthe discretion involved be abused.(b) Any claim arising out of the loss,miscarriage, or negligent transmission ofletters or postal matter.(c) Any claim arising in respect of theassessment or collection of any tax or customsduty, or the detention of any goods ormerchandise by any officer of customs orexcise or any other law-enforcement officer.(d) Any claim for which a remedy isprovided by sections 741-752, 781-790 ofTitle 46, relating to claims or suits inadmiralty against the United States.(e) Any claim arising out of an act oromission of any employee of the Governmentin administering the provisions of sections 1-31 of Title 50, Appendix.(f) Any claim for damages caused by theimposition or establishment of a quarantine bythe United States.(g) [Repealed.](h) Any claim arising out of assault,battery, false imprisonment, false arrest,malicious prosecution, abuse of process, libel,slander, misrepresentation, deceit, orinterference with contract rights: Provided,That, with regard to acts or omissions ofinvestigative or law enforcement officers ofthe United States Government, the provisionsof this chapter and section 1346(b) of this titleshall apply to any claim arising, on or after thedate of the enactment of this proviso, out ofassault, battery, false imprisonment, falsearrest, abuse of process, or maliciousprosecution. For the purpose of thissubsection, "investigative or law enforcementofficer" means any officer of the United Stateswho is empowered by law to executesearches, to seize evidence, or to make arrestsfor violations of Federal law.(i) Any claim for damages caused by thefiscal operations of the Treasury or by theregulation of the monetary system.(j) Any claim arising out of the combatantactivities of the military or naval forces, or theCoast Guard, during time of war.(k) Any claim arising in a foreign country.(l) Any claim arising from the activities ofthe Tennessee Valley Authority.(m) Any claim arising from the activitiesof the Panama Canal Company.(n) Any claim arising from the activitiesof a Federal land bank, a Federal intermediatecredit bank, or a bank for cooperatives.Questions and Notes1. Claims based on the FTCA are tried by theCourt sitting without a jury.2. The federal government and many statesimpose special procedural requirements before asuit can be filed. Often the claimant must first filean administrative claim for compensation. See,e.g., R.C.W. 4.92.110. There are also uniquestatutes of limitation. See, e.g., 28 U.S.C. § 2401(15). See generally, Tillman, Presenting a ClaimUnder the FTCA, 43 LA. L. REV. 961 (1983).LAIRD v. NELMS406 U.S. 797 (1972)Mr. Justice REHNQUIST delivered theopinion of the CourtRespondents brought this action in the UnitedStates District Court under the Federal Tort ClaimsAct, 28 U.S.C. §§ 1346(b), 2671-2680. Theysought recovery for property damage allegedlyresulting from a sonic boom caused by CaliforniabasedUnited States military planes flying overNorth Carolina on a training mission. The DistrictCourt entered summary judgment for petitioners,but on respondents' appeal the United States Courtof Appeals for the Fourth Circuit reversed. Thatcourt held that, although respondents had beenunable to show negligence "either in the planningor operation of the flight," they were nonethelessentitled to proceed on a theory of strict or absoluteliability for ultrahazardous activities conducted bypetitioners in their official capacities. That courtLAIRD V. NELMS

212 4. IMMUNITYrelied on its earlier opinion in United States v.Praylou, 4 Cir., 208 F.2d 291 (1953), which inturn had distinguished this Court's holding inDalehite v. United States, 346 U.S. 15, 45, 73 S.Ct. 956, 972, 97 L. Ed. 1427 (1953). We grantedcertiorari. 404 U.S. 1037, 92 S. Ct. 711, 30 L. Ed.2d 728.Dalehite held that the Government was notliable for the extensive damage resulting from theexplosion of two cargo vessels in the harbor ofTexas City, Texas, in 1947. The Court's opinionrejected various specifications of negligence onthe part of Government employees that had beenfound by the District Court in that case, and thenwent on to treat petitioners' claim that theGovernment was absolutely or strictly liablebecause of its having engaged in a dangerousactivity. The Court said with respect to this aspectof the plaintiffs' claim:[T]he Act does not extend to suchsituations, though of course well knownin tort law generally. It is to be invokedonly on a `negligent or wrongful act oromission' of an employee. Absoluteliability, of course, arises irrespective ofhow the tortfeasor conducts himself; it isimposed automatically when any damagesare sustained as a result of the decision toengage in the dangerous activity." 346U.S., at 44, 73 S. Ct., at 972.This Court's resolution of the strict-liabilityissue in Dalehite did not turn on the question ofwhether the law of Texas or of some other Statedid or did not recognize strict liability for theconduct of ultrahazardous activities. It turnedinstead on the question of whether the language ofthe Federal Tort Claims Act permitted under anycircumstances the imposition of liability upon theGovernment where there had been neithernegligence nor wrongful act. The necessaryconsequence of the Court's holding in Dalehite isthat the statutory language "negligent or wrongfulact or omission of any employee of theGovernment," is a uniform federal limitation onthe types of acts committed by its employees forwhich the United States has consented to be sued.Regardless of state law characterization, theFederal Tort Claims Act itself precludes theimposition of liability if there has been nonegligence or other form of "misfeasance ornonfeasance," 346 U.S., at 45, 73 S. Ct. at 972, onthe part of the Government.It is at least theoretically possible to argue thatsince Dalehite in discussing the legislative historyof the Act said that "wrongful" acts could includesome kind of trespass, and since courts imposedliability in some of the early blasting cases on thetheory that the plaintiff's action sounded intrespass, liability could be imposed on theGovernment in this case on a theory of trespasswhich would be within the Act's waiver ofimmunity. We believe, however, that there is morethan one reason for rejecting such an alternatebasis of governmental liability here.The notion that a military plane on a highaltitudetraining flight itself intrudes upon anyproperty interest of an owner of the land overwhich it flies was rejected in United States v.Causby, 328 U.S. 256, 66 S. Ct. 1062, 90 L. Ed.1206 (1946). There this Court, construing the AirCommerce Act of 1926, 44 Stat. 568, as amendedby the Civil Aeronautics Act of 1938, 52 Stat. 973,49 U.S.C. § 401, said:It is ancient doctrine that at commonlaw ownership of the land extended to theperiphery of the universe - Cujus estsolum ejus est usque ad coelum. But thatdoctrine has no place in the modernworld. The air is a public highway, asCongress has declared. Were that not true,every transcontinental flight wouldsubject the operator to countless trespasssuits. Common sense revolts at the idea.To recognize such private claims to theairspace would clog these highways,seriously interfere with their control anddevelopment in the public interest, andtransfer into private ownership that towhich only the public has a just Claim."328 U.S., at 260-261, 66 S. Ct., at 1065.Thus, quite apart from what would very likelybe insuperable problems of proof in connectingthe passage of the plane over the owner's air spacewith any ensuing damage from a sonic boom, thisversion of the trespass theory is ruled out byestablished federal law. Perhaps the preciseholding of United States v. Causby, supra, couldbe skirted by analogizing the pressure wave of aircharacterizing a sonic boom to the concussion thaton occasion accompanies blasting, and treating theair wave striking the actual land of the propertyowner as a direct intrusion caused by the pilot ofthe plane in the mold of the classical common-lawtheory of trespass.LAIRD V. NELM

§ A. GOVERNMENTAL IMMUNITY 213It is quite clear, however, that the presentlyprevailing view as to the theory of liability forblasting damage is frankly conceded to be strictliability for undertaking an ultrahazardous activity,rather than any attenuated notion of common lawtrespass. See RESTATEMENT OF TORTS §§ 519,520(e); W. PROSSER, LAW OF TORTS § 75 (4th ed.1971). While a leading North Carolina case on thesubject of strict liability discusses the distinctionbetween actions on the case and actions soundingin trespass that the earlier decisions made, it, too,actually grounds liability on the basis that he whoengages in ultrahazardous activity must pay hisway regardless of what precautions he may havetaken. Guilford Realty & Ins. Co. v. Blythe Bros.Co., 260 N.C. 69, 131 S.E.2d 900 (1963). Moreimportantly, however, Congress in considering theFederal Tort Claims Act cannot realistically besaid to have dealt in terms of either thejurisprudential distinctions peculiar to the forms ofaction at common law or the metaphysicalsubtleties that crop up in even contemporarydiscussions of tort theory. See PROSSER, supra, at492-496. The legislative history discussed inDalehite indicates that Congress intended topermit liability essentially based on theintentionally wrongful or careless conduct ofGovernment employees, for which theGovernment was to be made liable according tostate law under the doctrine of respondeatsuperior, but to exclude liability based solely onthe ultrahazardous nature of an activity undertakenby the Government.A House Judiciary Committee memorandumexplaining the "discretionary function" exemptionfrom the bill when that exemption first appeared inthe draft legislation in 1942 made the commentthat "the cases covered by that subsection wouldprobably have been exempted ... by judicialconstruction" in any event, but that the exemptionwas intended to preclude any possibilitythat the act would be construed toauthorize suit for damages against theGovernment growing out of a legallyauthorized activity, such as a floodcontrolor irrigation project, where no wrongfulact or omission on the part of anyGovernment agent is shown, and the onlyground for suit is the contention that thesame conduct by a private individualwould be tortious...." Hearings on H.R.5373 and H.R. 6463 before the HouseCommittee on the Judiciary, 77th Cong.,2d Sess., ser. 13, pp. 65-66 (1942).The same memorandum, after noting theerosion of the doctrine of sovereign immunityover the years, observed with respect to the billgenerally:Yet a large and highly important arearemains in which no satisfactory remedyhas been provided for the wrongs ofGovernment officers or employees, theordinary `commonlaw' type of tort, suchas personal injury or property damagecaused by the negligent operation of anautomobile." Id., at 39.The type of trespass subsumed under the Act'slanguage making the Government liable for"wrongful" acts of its employees is exemplified bythe conduct of the Government agents in Hatahleyv. United States, 351 U.S. 173, 181, 76 S. Ct. 745,751, 100 L. Ed. 1065. Liability of this type underthe Act is not to be broadened beyond the intent ofCongress by dressing up the substance of strictliability for ultrahazardous activities in thegarments of common-law trespass. To permitrespondent to proceed on a trespass theory herewould be to judicially admit at the back door thatwhich has been legislatively turned away at thefront door. We do not believe the Act permits sucha result.Shortly after the decision of this Court inDalehite, the facts of the Texas City catastrophewere presented to Congress in an effort to obtainlegislative relief from that body. Congress, afterconducting hearings and receiving reports,ultimately enacted a bill granting compensation tothe victims in question. 69 Stat. 707; H.R. REP.NO. 2024, 83d Cong., 2d Sess. (1954); S. REP. NO.2363, 83d Cong., 2d Sess. (1954); H.R. REP. NO.1305, 84th Cong., 1st Sess. (1955); H.R. REP. NO.1623, 84th Cong., 1st Sess. (1955); S. REP. NO.684, 84th Cong., 1st Sess. (1955). At no timeduring these hearings was there any effort made tomodify this Court's construction of the Tort ClaimsAct in Dalehite. Both by reason of stare decisisand by reason of Congress' failure to make anystatutory change upon again reviewing the subject,we regard the principle enunciated in Dalehite ascontrolling here.Since Dalehite held that the Federal TortClaims Act did not authorize suit against theGovernment on claims based on strict liability forultrahazardous activity, the Court of Appeals in theinstant case erred in reaching a contraryLAIRD V. NELMS

214 4. IMMUNITYconclusion. While as a matter of practice withinthe Circuit it may have been proper to rely uponUnited States v. Praylou, 208 F.2d 291, it is clearthat the holding of the latter case permittingimposition of strict liability on the Governmentwhere state law permits it is likewise inconsistentwith Dalehite. Dalehite did not depend on thefactual question of whether the Government washandling dangerous property, as opposed tooperating a dangerous instrument but, rather, onthe Court's determination that the Act did notauthorize the imposition of strict liability of anysort upon the Government. Indeed, even thedissenting opinion in Dalehite did not disagreewith the conclusion of the majority on that point.Our reaffirmation of the construction put onthe Federal Tort Claims Act in Dalehite, makes itunnecessary to treat the scope of the discretionaryfunctionexemption contained in the Act, or theother matters dealt with by the Court of Appeals.Reversed.Mr. Justice STEWART, with whom Mr.Justice BRENNAN joins, dissenting.Under the Federal Tort Claims Act, the UnitedStates is liable for injuries to persons or propertycaused by the negligent or wrongfulact or omission of any employee of theGovernment while acting within the scopeof his office or employment, undercircumstances where the United States, ifa private person, would be liable to theclaimant in accordance with the law of theplace where the act or omission occurred.28 U.S.C. § 1346(b).* * *The rule announced by the Court today seemsto me contrary to the whole policy of the TortClaims Act. For the doctrine of absolute liability isapplicable not only to sonic booms, but to otheractivities that the Government carries on incommon with many private citizens. Absoluteliability for injury caused by the concussion ordebris from dynamite blasting, for example, isrecognized by an overwhelming majority of statecourts. 25 A private person who detonates anexplosion in the process of building a road isliable for injuries to others caused thereby underthe law of most States even though he took allpracticable precautions to prevent such injuries, onthe sound principle that he who creates such ahazard should make good the harm that results.Yet if employees of the United States engage inexactly the same conduct with an identical result,the United States will not, under the principleannounced by the Court today, be liable to theinjured party. Nothing in the language or thelegislative history of the Act compels such aresult, and we should not lightly conclude thatCongress intended to create a situation so much atodds with common sense and the basic rationale ofthe Act. We recognized that rationale in Rayonier,[Rayonier v. U.S., 352 U.S. 315 (1957)], a caseinvolving negligence by employees of the UnitedStates in controlling a forest fire:Congress was aware that when lossescaused by such negligence are chargedagainst the public treasury they are ineffect spread among all those whocontribute financially to the support of theGovernment and the resulting burden oneach taxpayer is relatively slight. Butwhen the entire burden falls on the injuredparty it may leave him destitute orgrievously harmed. Congress could, andapparently did, decide that this would beunfair when the public as a whole benefitsfrom the services performed byGovernment employees. 352 U.S., at 320,77 S. Ct., at 377.For the reasons stated, I would hold that thedoctrine of absolute liability is applicable toconduct of employees of the United States underthe same circumstances as those in which it isapplied to the conduct of private persons under thelaw of the State where the conduct occurs. Thatholding would not by itself be dispositive of thiscase, however, for the petitioners argue thatliability is precluded by the "discretionaryfunction" exception in the Act. While the Courtdoes not reach this issue, I shall state briefly thereasons for my conclusion that the exception isinapplicable in this case.25See, e.g., Whitman Hotel Corp. v. Elliott & WatrousEng. Co., 137 Conn. 562, 79 A.2d 591 (1951); Louden v.City of Cincinnati, 90 Ohio St. 144, 106 N.E. 970 (1914);Thigpen v. Skousen & Hise, 64 N.M. 290, 327 P.2d 802(1958); Wallace v. A.H. Guion & Co., 237 S.C. 349, 117S.E.2d 359 (1960); and cases cited in n.3, supra. Seegenerally W. PROSSER, LAW OF TORTS 514 (4th ed. 1971).LAIRD V. NELM

§ A. GOVERNMENTAL IMMUNITY 215No right of action lies under the Tort ClaimsAct for any claimbased upon an act or omission of anemployee of the Government, exercisingdue care, in the execution of a statute orregulation, whether or not such statute orregulation be valid, or based upon theexercise or performance or the failure toexercise or perform a discretionaryfunction or duty on the part of a federalagency or an employee of theGovernment, whether or not thediscretion involved be abused. 28 U.S.C.§ 2680(a).The Assistant Attorney General who testifiedon the bill before the House committee indicatedthat this provision was intended to create noexceptions beyond those that courts wouldprobably create without it:[I]t is likely that the cases embracedwithin that subsection would have beenexempted from [a bill that did not includethe exception] by judicial construction. Itis not probable that the courts wouldextend a Tort Claims Act into the realm ofthe validity of legislation or discretionaryadministrative action, but [therecommended bill] makes this specific.Hearings on H.R. 5373 and H.R. 6463before the House Committee on theJudiciary, 77th Cong., 2d Sess., ser. 13, p.29.The Dalehite opinion seemed to say that noaction of a Government employee could be madethe basis for liability under the Act if the actioninvolved "policy judgment and decision." 346U.S., at 36, 73 S. Ct., at 968. Decisions in thecourts of appeals following Dalehite haveinterpreted this language as drawing a distinctionbetween "policy" and "operational" decisions,with the latter falling outside the exception. 26 Thatdistinction has bedeviled the courts that have26See, e.g., Eastern Air Lines v. Union Trust Co., 95U.S. App. D.C. 189, 21 F.2d 62, aff'd, 350 U.S. 907, 76 S.Ct. 192, 100 L. Ed. 796; Fair v. United States, 5 Cir., 234F.2d 288; Hendry v. United States, 2 Cir., 418 F.2d 774.For a thorough discussion of the "policy/operational"distinction that has developed, see Reynolds, TheDiscretionary Function Exception of the Federal TortClaims Act, 57 GEO. L.J. 81 (1968).attempted to apply it to torts outside routinecategories such as automobile accidents, but thereis no need in the present case to explore the limitsof the discretionary function exception.The legislative history indices that the purposeof this statutory exception was to avoid anypossibility that policy decisions of Congress, ofthe Executive, or of administrative agencies wouldbe second-guessed by courts in the context of tortactions. 27 There is no such danger in this case, forliability does not depend upon a judgment as towhether Government officials acted irresponsiblyor illegally. Rather, once the creation of sonicbooms is determined to be an activity as to whichthe doctrine of absolute liability applies, the onlyquestions for the court relate to causation anddamages. Whether or not the decision to fly amilitary aircraft over the respondents' property, ata given altitude and at a speed three times thespeed of sound, was a decision at the "policy" orthe "operational" level, the propriety of thatdecision is irrelevant to the question of liability inthis case, and thus the discretionary functionexception does not apply.Questions and Notes1. In Berkovitz v. United States, 108 S. Ct.1954 (1988), the Supreme Court considered apolio victim's claim that the FDA and other federalagencies had negligently sanctioned the release ofa defective lot of polio vaccine. The court rejected27The policy behind the exception is explained by oneleading commentator as follows:[A]lmost no one contends that there should becompensation for all the ills that result fromgovernmental operations. No one, for instance,suggests that there should be liability for the injuriousconsequence of political blunders such as the unwiseimposition of tariff duties or the premature lifting ofOPA cont-rols.... The separation of powers in ourform of government and a decent regard by thejudiciary for its co-ordinate branches should makecourts reluctant to sit in judgment on the wisdom orreasonableness of legislative or executive politicalaction. Moreover, courts are not particularly wellsuited to pursue the examinations that would benecessary to make this kind of judgment. James, TheFederal Tort Claims Act and the "DiscretionaryFunction" Exception: The Sluggish Retreat of anAncient Immunity, 10 U. FLA. L. REV. 184 (1957).LAIRD V. NELMS

216 4. IMMUNITYthe government's argument that any actions of aregulatory agency should be immune. "[T]hediscretionary function exception insulates theGovernment from liability if the action challengedin the case involves the permissible exercise ofpolicy judgment." Id. at 1959 (case remanded forfurther factual determination). See Note, 20 ST.MARY'S L.J. 1018 (1989).2. For discussions of the discretionaryfunction exemption, see Amy M. Hackman, TheDiscretionary Function Exception to the FederalTort Claims Act: How Much is Enough? 19CAMPBELL L. REV. 411 (1997); Brian H. Hess, ThePlanning/Operational Dichotomy: a SpeciousApproach to the Discretionary Function Exceptionin the Idaho Tort Claims Act, 40 IDAHO L. REV.225 (2003).3. A medical aide for the U.S. Navy got drunkand was seen in the hospital by fellow hospitalemployees, who saw a rifle in his duffel bag. Theytried to detain him and get him treated, but theaide escaped. They then negligently failed toreport his escape, and shortly thereafter the aideshot the plaintiff. Is the claim covered by theFederal Tort Claims Act? See Sheridan v. UnitedStates, 108 S. Ct. 2449 (1988).4. Government contractors are sometimesentitled to immunity when they provide productsor services to the government and the governmentsupplies the specifications. See, e.g., Boyle v.United Technologies Corp., 487 U.S. 500 (1988);Popov, Sovereign Immunity: The GovernmentContractor's Defense in Boyle v. UnitedTechnologies Corp., 1989 ANN. SURV. OFAMERICAN LAW 245.VANDERPOOL v. STATE672 P.2d 1153 (Okla. 1983)LAVENDER, JusticeThis is an appeal from an order of the trialcourt granting summary judgment in favor ofdefendants below, State of Oklahoma and theOklahoma Historical Society.The facts are not in dispute. Appellant andplaintiff below while employed as an officeworker by the Oklahoma Historical Society at astate historical site known as Fort Washita was enroute to deliver a telephone message. Whiletraversing the grounds, she was struck in the eyeby a rock thrown up by a "Brush Hog" moweroperated by a fellow employee while mowingweeds on the site, resulting in permanent loss ofsight in her right eye. Plaintiff alleged negligencein that a protective shield on the mower had beenremoved by an employee of the State making thebrush hog defective and allowing objects to bepropelled from the mower, thus rendering themower totally unfit, unsafe and highly dangerous.Plaintiff seeks damages from the State and fromthe Society. The district court granted defendants'motion for summary judgment and dismissed thecause, holding that the doctrine of governmentalimmunity bars the action. Plaintiff appeals.The nature, purposes, powers and duties of theOklahoma Historical Society are statutory and areset forth in 53 O.S. 1981, § 1, et seq. For thepurposes of this appeal, suffice it to say:The Society is authorized to acquire, operateand maintain real and personal property pertainingand relating to the history of Oklahoma, for thebenefit of the public, to purvey the same, and tocharge reasonable visitation fees. The Society isempowered to grant concessions, leases or permitsafter competitive bids, and to develop aneducation program and service for the purpose ofpublishing facts regarding Oklahoma historic sites,buildings and property of state significance.Reasonable charges may be made for thedissemination of any such facts or information.The Society is declared to be an agency of theState.Fort Washita was purchased by the MerrickFoundation of Ardmore, Oklahoma, in 1962 fromDouglas and Billie Colbert, and deeded to theOklahoma Historical Society in April, 1962. Since1968, the Fort Washita historical site has beenstaffed, maintained and operated by the OklahomaHistorical Society through state appropriations. Itspurpose is to tell that particular aspect ofOklahoma history - antebellum military history inthe Indian Territory - to the general public.The case before us places squarely in issue thedoctrine of sovereign immunity and impels us toreexamine the viability and efficacy of thatdoctrine as applied to tort liability of the State, thecounties and of other governmental entities withinLAIRD V. NELM

§ A. GOVERNMENTAL IMMUNITY 217the State of Oklahoma.The doctrine of sovereign immunity was firstrecognized in early England and required that thesovereign could not be sued without hispermission. It was not so much a matter of theking being above the law, embodied in the maxim,"the king can do no wrong," as it was in the oftexpressedconcept that the courts were a part ofthe government and could not be used to enforceclaims against the government - without theexpress permission of that government.The doctrine found its way into the commonlaw of the United States, and in 1821, in Cohens v.Virginia, 19 U.S. (6 Wheat.) 264, 5 L. Ed. 257,Chief Justice Marshall applied it in suits againstthe United States, declaring that suits could not becommenced or prosecuted against the federalgovernment without its consent. Subsequently, thedoctrine was applied to the states. In applying thedoctrine to local government entities, it was earlyrecognized that local government entities occupy adual character which affected its liability in tort.On the one hand it is a subdivision of the State,endowed with governmental and political powers,and charged with governmental functions andresponsibilities. On the other hand, it is acorporate body, capable of much the same acts asa private corporation, and capable of much thesame special and local interests and relations, notshared by the State at large. This duality resultedin the attempted differentiation betweengovernmental and proprietary functions, the firstgenerally protected by immunity, the secondgenerally not. RESTATEMENT OF THE LAW OFTORTS, 2d ed., § 895B; City of Purcell v. Hubbard,Okl., 401 P.2d 488 (1965); Oklahoma City v.Baldwin, 133 Okl. 289, 272 P. 453 (1928).Meanwhile, the expansion of governmentalfunctions with its attendant complexities gave riseto a plethora of governmental agencies whosepurpose and function took on characteristics ofboth governmental and proprietary. Judicialattempts to grapple with what has become a multiadderedmedusa has resulted in confusion anduncertainty all too painfully apparent to legalscholars, and an inability on the part of the courtsto evolve any definitive guidelines for thedemarcation between governmental andproprietary functions.Reexamination of the soundness of theconcept of governmental immunity in the light ofthe expanded role of government in today's societyhas, for various reasons, the enumeration of whichwould unduly lengthen this opinion, resulted in aretreat from the concept both legislatively and bycase law.In 1946, by the adoption of the Federal TortClaims Act, Congress gave its consent for theUnited States to be sued in the district courts, andwaived its governmental immunity, "for injury orloss of property, or personal injury or death causedby the negligent or wrongful act or omission ofany employee of the Government while actingwithin the scope of his office or employment,under circumstances where the United States, if aprivate person, would be liable to the claimant inaccordance with the law of the place where the actor omission occurred." 28 U.S.C. § 1346(b).Various states have enacted statutes imposingmore or less general liability in tort on localgovernmental entities and abrogatinggovernmental immunity, generally or underprescribed circumstances.In 1957, the Florida Supreme Court in thecase of Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla. 1957), declared that there was novalid distinction between governmental andproprietary functions and determined that underthe facts of that case the municipality had noimmunity from tort liability, thus presaging asteady flow of case law away from the concept ofgovernmental immunity and abrogating it in wholeor in part, until today, there are not more than fivestates, including Oklahoma, which have notabolished the doctrine or have not, in somemanner, retreated from its universal application asan immutable concept of the law. See Pruett v.City of Rosedale, Miss., 421 So. 2d 1046 (1982).While Oklahoma has been more cautious inits retreat from governmental immunity as a bar toactions for tort, it has not been heretofore totallyimmune from inroads upon the doctrine.In 1978, the Oklahoma Legislature enactedthe Political Subdivision Tort Claims Act (51 O.S.1981 § 151, et seq.) extending politicalsubdivision tort liability for loss resulting from itstorts or the torts of its employees acting within thescope of their employment or duties subject to thelimitations specified in the Act. Included in thepolitical subdivisions covered by the act aremunicipalities, school districts, counties andpublic trusts where a city, town, school district orcounty is a beneficiary.In Hershel v. University Hospital Foundation,610 P.2d 237 (Okl. 1980), we brought theapplication of the doctrine of sovereign immunityVANDERPOOL V. STATE

218 4. IMMUNITYof the State of Oklahoma for tort into lock-stepwith the doctrine as it is applied to counties andmunicipalities where each is engaged inproprietary functions, thus holding that the State isliable for injuries committed by the State arisingfrom proprietary functions. We thus repudiated theidea the State may not be sued without its consent,express or implied.We have further held that in certain instanceswhere the State insures itself against liabilityunder legislative authority to do so, governmentalimmunity is waived by implication to the extent ofits insurance coverage. Schrom v. OklahomaIndustrial Development, Okl., 536 P.2d 904(1975).While in the case of Gable v. Salvation Army,186 Okl. 687, 100 P.2d 244 (1940), the doctrine ofcharitable immunity and not governmentalimmunity was challenged and repudiated in apersonal injury action brought against a charitablecorporation for activities within the corporatepowers and carried on to accomplish its charitablepurposes, this Court did not hesitate to strike downthe alleged immunity where upon criticalexamination the immunity was found to be unjustand unwarranted on every basis postulated in itsfavor.We hold that the governmental-proprietaryfunctioninquiry shall no longer be determinativein assessing liability for tort as to all levels ofgovernment in this State.The doctrine of governmental immunity ishereby modified to bring it in line with what weperceive to be the more just and equitable view,and that which is in conformity with the generallyprevailing view determined by the highest courtsof our sister states. 11In the absence of a statute granting partial or totalimmunity, a municipality has been held to be liable for itsnegligence in the same manner as a private person orcorporation in the following states by the following cases:Jackson v. Florence, 294 Ala. 592, 320 So.2d 68(1975);City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska1962);Veach v. Phoenix, 102 Ariz. 195, 427 P.2d 335(1967);Div. of Admin. v. Oliff, 350 So.2d 484 (Fla. App.1977);Runnels v. Okamoto, 56 Haw. 1, 525 P.2d 1125(1974);Smith v. State, 93 Idaho 795, 473 P.2d 937 (1970);In light of the foregoing, it is the finding andKlepinger v. Bd. of Comm'rs, 143 Ind. App. 155, 239N.E.2d 160 (1968);Goodwin v. Bloomfield, 203 N.W.2d 582 (Iowa1973);Gorrell v. City of Parsons, 223 Kan. 645, 576 P.2d616 (1978);Haney v. Lexington, 386 S.W.2d 738 (Ky. 1964);Bd. of Comm'rs v. Splendour Shipping & EnterprisesCo., Inc., 255 So.2d 869 (La. App. 1971);Davies v. Bath, 364 A.2d 1269 (Me. 1976);Hoffert v. Owatonna Inn Towne Motel, Inc., 293Minn. 220, 199 N.W.2d 158 (1972);Jones v. State Highway Comm'n, 557 S.W.2d 225(Mo. 1977);Webber v. Anderson, 187 Neb. 9, 187 N.W.2d 290(1971);Turner v. Staggs, 89 Nev. 230, 510 P.2d 879 (1973);Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378(1974);Hicks v. State, 88 N.M. 588, 544 P.2d 1153 (1975);Weiss v. Fote, 7 N.Y.2d 579, 200 N.Y.S.2d 409, 167N.W.2d 63 (1960);Kitto v. Minot Park Dist., 224 N.W.2d 795 (N.D.1974);Fry v. Williamalane Park & Rec. Dist., 4 Or. App.575, 481 P.2d 648 (1971);Ayala v. Philadelphia Bd. of Pub. Ed., 453 Pa. 584,305 A.2d 877 (1973);Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896(1970);Beaumont v. Fuentez, 582 S.W.2d 221 (Tex. Civ.App. 1979);Kelso v. Tacoma, 63 Wash.2d 913, 390 P.2d 2 (1964);Long v. Weirton, 214 S.E.2d 832 (W. Va. 1975);Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618(1962).Judicial abolishment of governmental immunity as appliedto municipalities has been decreed in the following statesin the following cases:City of Fairbanks v. Schaible, 375 P.2d 201 (Alaska1962);Stone v. Arizona Highway Comm'n, 93 Ariz. 384, 381P.2d 107 (1963);Davies v. Bath, 364 A.2d 1269 (Me. 1976);Jones v. State Highway Comm'n, 557 S.W.2d 225(Mo. 1977);Merrill v. Manchester, 114 N.H. 722, 332 A.2d 378(1974);Kitto v. Minot Park. Dist., 224 N.W.2d 795 (N.D.1974);Becker v. Beaudoin, 106 R.I. 562, 261 A.2d 896(1970);Long v. Weirton, 214 S.E.2d 832 (W. Va. 1975);Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618(1962).VANDERPOOL V. STATE

§ A. GOVERNMENTAL IMMUNITY 219determination of this Court that:A STATE OR LOCAL GOVERNMENTALENTITY IS LIABLE FOR MONEY DAMAGESFOR INJURY OR LOSS OF PROPERTY, ORPERSONAL INJURY OR DEATH CAUSED BYTHE NEGLIGENT OR WRONGFUL ACT OROMISSION OF ANY GOVERNMENTALENTITY OR ANY EMPLOYEE OR AGENT OFTHE GOVERNMENTAL ENTITY WHILEACTING WITHIN THE SCOPE OF THEGOVERNMENTAL ENTITY'S OFFICE, ANDPURPOSE FOR WHICH IT IS CREATED,UNDER CIRCUMSTANCES WHERE THEENTITY, IF A PRIVATE PERSON, WOULD BELIABLE TO THE CLAIMANT INACCORDANCE WITH THE LAW OF THEPLACE WHERE THE ACT OR OMISSIONOCCURRED.PROVIDED, HOWEVER, SAIDGOVERNMENTAL ENTITY IS IMMUNE FROMTORT LIABILITY FOR ACTS AND OMISSIONSCONSTITUTING(A) THE EXERCISE OF ALEGISLATIVE OR JUDICIAL FUNCTION,AND(B) THE EXERCISE OF ANADMINISTRATIVEFUNCTIONINVOLVING THE DETERMINATION OFFUNDAMENTAL GOVERNMENTALPOLICY.AND FURTHER PROVIDED, THAT THEREPUDIATION OF GENERAL TORTIMMUNITY AS HEREINABOVE SET FORTHDOES NOT ESTABLISH LIABILITY FOR ANACT OR OMISSION THAT IS OTHERWISEPRIVILEGED OR IS NOT TORTIOUS. 2In rendering this opinion, this Court ismindful of the oft-expressed view of this Courtthat if the doctrine of governmental immunity is tobe totally abrogated, such should be done by theLegislature and not by the courts of this State. See2Enunciation of the foregoing rule is not to beconstrued as abrogating or modifying our holding in Nixonv. Oklahoma City, Okl., 555 P.2d 1283 (1976) pertainingto the non-liability of governmental sub-divisionsincluding municipalities for exemplary damages, and thereasons therein set forth for denying such a recovery.Nixon comports with what appears to be the majority view.1 A.L.R. 4th 454, et seq.Spaulding v. State ex rel. Dept. of Transp., Okl.,618 P.2d 397 (1980); Ruble v. Dept. ofTransportation of the State of Oklahoma, 660 P.2d1049 (1983). But having come to the conclusionsthat the judicially recognized doctrine ofgovernmental immunity in its present state underthe case law is no longer supportable in reason,justice or in light of the overwhelming trendagainst its recognition, our duty is clear. Where thereason for the rule no longer exists, that aloneshould toll its death knell.Our decision is limited in its effect to theheretofore judicially created and recognizeddoctrine of governmental immunity and is not tobe taken as in any way rendering ineffective anyact of the Legislature in the area of governmentalimmunity whether presently in effect or hereafterpassed.We are aware of and sensitive to the effectthat the immediate application of the rules of lawherein enunciated would have upon the variousgovernmental entities affected thereby. These arematters which lie within the sphere of theLegislature alone. We invoke its consideration ofthe many problems presented, including whethersome or all of the governmental entities should beinsulated from unlimited tort liability through theenactment of comprehensive or specific TortClaims Acts which limit or prescribe conditions ofliability, their insurance against loss, the maximummonetary liability to be allowed, or, indeed,whether it is the will of the People of the State ofOklahoma, as expressed through the Legislature,that governmental immunity be established bystatute, and the terms and conditions thereof.Ample time for consideration of these mattersmust be afforded.Except as to the case before us, this opinionshall be effective only as to those claims or causesof action which accrue after 12:01 A.M., October1, 1985. Great Northern Railway Co. v. SunburstOil & Refining Company, 287 U.S. 358, 53 S. Ct.145, 77 L. Ed. 360 (1932).All previous opinions of this Court which arein conflict with the views herein expressed arehereby overruled.Reversed and remanded.IRWIN, Justice, dissentingAs late as March 15, 1983, this courtrecognized the doctrine of governmental immunityand said that if sovereign immunity is to beVANDERPOOL V. STATE

220 4. IMMUNITYabrogated, it should be done by the Legislatureand not by the courts. Ruble v. Department ofTransportation of the State of Oklahoma, Okl.,660 P.2d 1049 (1983).Various statutes have been enacted by theLegislature which demonstrate legislative intentthat the State remain immune from suit on tortclaims arising from governmental functions. Someof these are:(A) 51 O.S. 1981, 151-170, "The PoliticalSubdivisions Tort Claims Act." This legislationbecame effective July 1, 1978, and abolished thesovereign/governmental immunity ofmunicipalities, school districts, counties, andpublic trusts where a city, town, school district orcounty is a beneficiary; and all their institutions,instrumentalities or agencies, to the extent of thelimitation on liability contained in § 154 of theAct. Governmental immunity continues to barclaims in excess of § 154 limitations. TheLegislature could have included the State in thislimited waiver of sovereign immunity but chosenot to do.(B) 47 O.S. 1981, §§ 157.1-158.2, LiabilityInsurance for State-owned motor vehicles andequipment. Sections 157.1 and 158.1 containidentical provisions:the governmental immunity of suchdepartment or state agency shall be waived only tothe extent of the amount of insurance purchased.Such department or state agency shall be liable fornegligence only while such insurance is in force,but in no case in any amount exceeding the limitsof coverage or any such insurance.(C) 74 O.S. 1981, §§ 20f-20h, which providefor the Legal Defense of State Officers andEmployees Sued in Performance of OfficialDuties. This legislation requires the AttorneyGeneral or state agency staff attorneys to defendstate officials who are sued upon causes of actionarising from the performance of official duties.Under § 20h(A), the cost of the litigation is paidout of the Attorney General's Evidence fund.However, § 20h(B) contains this proviso:except that this act shall not beconstrued as authorizing the payment bythe State of Oklahoma or any agencythereof of any judgment making an awardof money damages.In my opinion if sovereign immunity is to beabrogated, it should be done by the Legislatureand not by the courts. If the Legislature hadwanted to abrogate sovereign immunity, it wouldhave done so. I respectfully dissent.Questions and Notes1. Remember that each state (and NativeAmerican tribe) is sovereign, and so the enactmentof the Federal Tort Claims Act did not affect theindividual states' or tribes' ability to claimsovereign immunity. However, as Vanderpoolillustrates, the approach to waiving sovereignimmunity often follows the general patternestablished in the FTCA. Nonetheless, since suchwaivers are usually a creature of statute, thewaiver (if there is one) must be carefullyscrutinized to determine whether the grant isbroader (or narrower) than the FTCA provides.§ B. Family ImmunitiesHOLODOOK v. SPENCER36 N.Y.2d 35, 364 N.Y.S.2d 859 (1974)SAMUEL RABIN, Judge* * *The Holodook infant, at age four, allegedlydarted out from between parked cars and wasstruck by an automobile driven by defendant. Theinfant, by his father, sued for personal injuries andhis father brought a derivative action for bothmedical expenses and loss of services. Thedefendant then brought a third-party action forindemnification and apportionment ofresponsibility pursuant to Dole v. Dow Chem. Co.,30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d288, supra against the infant's mother alleging thatat the time of the accident the infant was in hercustody and that she negligently failed to performher parental duty to instruct, control and maintainher child. Defendant also counterclaimed for Doleapportionment and contribution against the infant'sfather alleging negligent failure to provide for theproper care, maintenance and supervision of hisVANDERPOOL V. STATE

§ B. FAMILY IMMUNITIES 221child. The infant's parents then moved to dismissthe third-party complaint and the counterclaim forfailure to state a cause of action. Special Termdenied the motion finding that Gelbman [Gelbmanv. Gelbman, 23 N.Y.2d 434, 297 N.Y.S.2d 529,245 N.E.2d 192 (1969)] had completely removedthe bar against intrafamilial suits, that Dolepermitted the claims over against the parents andthat a parent's negligent supervision of his child isan actionable tort. The Appellate Divisionreversed, one Justice dissenting, stating that whileGelbman might be read to allow survival of theimmunity rule in the area of parental functions,this was unnecessary since a parent's misjudgmentin supervising his child does not amount to thebreach of a legal duty and therefore is not a tort.As a consequence, the court granted the parents'motion to dismiss the Dole counterclaim andthird-party complaint for failure to state a cause ofaction. Defendant, third-party plaintiff, appeals asof right and is opposed not only by the third-partydefendant, Mrs. Holodook, but, unlike the Graneyand Ryan cases, by the infant plaintiff and hisfather as well.I. BackgroundAs stated, in Gelbman we abrogated thedefense of intrafamilial immunity for nonwillfultorts.* * *II. A parent's negligentfailure to supervise his child isnot presently recognized inNew York as a tort, actionableby the child.In abolishing the immunity defense, Gelbmanallows suits between parents and children whichwould previously have been actionable betweenthe parties absent the family relationship. It alsoopens for exploration the area of duties whichexist Because of the family relationship, andwhich, if breached, entail legal consequences. Weask whether a parent owes a legal duty tosupervise his child giving rise to an action fordamages for negligent performance of that duty,and if so, to whom that duty is owed - whetheronly to third parties who may be injured by anegligently supervised child, or whether the dutyis also owed personally to the child to be protectedby his parent from accidental injury.Of the many duties arising from the parentchildrelation, only very few give rise to legalconsequences for their breach. Parents areobligated in accordance with their means tosupport and maintain their children - i.e., tofurnish adequate food, clothing, shelter, medicalattention and education. A parent's failure toobserve minimum standards of care in performingthese duties entails both remedial sanctions, suchas the forfeiture of custody, and criminalsanctions. (See Family Ct. Act, § 1012, subd. f,par. (i), cl. (A); Penal Law, Consol. Laws, c. 40, §260.05.) Parents are also obligated to provideproper guidance and guardianship of their childrenand are vulnerable to legal sanction for failure tomeet minimum standards of care, for example, bythe excessive infliction of corporal punishment, bythe excessive use of drugs or alcohol, or bydirecting or authorizing a child under 16 to engagein an occupation involving substantial risk ofdanger to his life or health. (See Family Ct. Act, §1012, subd. f, par. (i), cl. (B); Penal Law, §260.10.) Parents are also obligated to supervisetheir children. Failure to supervise may entail legalconsequence where injury to a third party results,for example, under circumstances where a parentnegligently entrusts to his child a dangerousinstrument, or an instrument potentially dangerousin the child's hands, so as to create anunreasonable risk to others.* * *III. A parent's negligentfailure to supervise his childshould not now be recognizedas a tort, actionable by thechild.The element which persistently stands out aswe consider and contrast these cases and theimplications of our decision on future cases, is thepotential impact of Dole apportionment andcontribution upon the fundamental family relationbetween parent and child. We can conceive of few,if any, accidental injuries to children which couldnot have been prevented, or substantiallymitigated, by keener parental guidance, broaderforesight, closer protection and better example.Indeed, a child could probably avoid mostphysical harm were he under his parents' constantsurveillance and instruction, though detrimentmore subtle and perhaps more harmful thanphysical injury might result. If the instantnegligent supervision claims were allowed, itwould be the rare parent who could notHOLODOOK V. SPENCER

222 4. IMMUNITYconceivably be called to account in the courts forhis conduct toward his child, either by the childdirectly or by virtue of the procedures allowed byDole.* * *The mutual obligations of the parent-childrelation derive their strength and vitality fromsuch forces as natural instinct, love and morality,and not from the essentially negative compulsionsof the law's directives and sanctions. Courts andLegislatures have recognized this, andconsequently have intruded only minimally uponthe family relation. This is so, and properly,because the law's external coercive incentives areinappropriate to assuring performance of thesubtle and shifting obligations of family. Ofcourse, where the duty is ordinarily owed, apartfrom the family relation, the law will not withholdits sanctions merely because the parties are parentand child. This is the consequence of Gelbman.There, the duty to drive carefully was owed to theworld at large and derived from the parties'relation as driver and passenger; that the partieswere also child and parent was a fortuitous fact,irrelevant to both the duty and to a determinationof its breach. By contrast, the cases before usinvolve a parent's duty to protect his child frominjury - a duty which not only arises from thefamily relation but goes to its very heart. Gelbmandid not pave the way for the law's superintendenceof this duty.Like the Appellate Divisions, which sothoughtfully approached these cases before theycame to us (see, also, the analysis of the SecondDepartment in the similar case of Lastowski v.Norge Coin-O-Matic, 44 A.D.2d 127, 355N.Y.S.2d 432), we are not persuaded that aparent's failure to supervise his child is, or onbalance should be, a tort actionable by the child.We hold, therefore, that the infant plaintiffs haveno cause of action against their parents fornegligent supervision in the cases before us.Because the secondary right to contribution inthese cases is dependent upon the parent's allegedfailure to perform a duty owing to the plaintiffchild, the absence of the primary cause of actiondefeats the counterclaim and third-party complaintin Holodook and, if made, the cross claim in Ryan.Accordingly, in each case, we affirm the orderof the Appellate Division.JASEN, Judge (dissenting)I cannot ascribe to the policy reasons assignedby the majority for today's holding that negligentparental supervision is not actionable and that anegligent parent is not subject to a claim forapportionment of responsibility.The parental duty to supervise was recognizedin our early law (e.g., Longacre v. Yonkers R.R.Co., 236 N.Y. 119, 123, 140 N.E. 215, 216; see,also, Mangam v. Brooklyn R.R. Co., 38 N.Y. 455,457) although usually in conjunction with theissue of the child's own negligence, commonly onthe now disapproved imputed negligence theory(Ann., 51 A.L.R. 209, 223; cf. General ObligationsLaw, § 3-111). But it should not matter that theparental conduct under review has not previouslybeen explicitly denominated a tort. Nor for thatmatter should, as is implied by the majority,violation of a statute be the sole measure oftortious parental conduct. The fundamental issue iswhether, under all the circumstances, there hasbeen a breach of the duty of care reasonably to beexpected. Gelbman v. Gelbman, 23 N.Y.2d 434,297 N.Y.S.2d 529, 245 N.E.2d 192 havingremoved the bar of intrafamily negligenceimmunity in New York, the duty of supervisionpersists unconfined by that defense. Where thatduty is breached, only the most cogent reasons ofpublic policy should warrant denial of a remedyand consequent deviation from the centralprinciple of Anglo-American tort law, which isthat wrongdoers should bear the losses they cause.* * *To the assertion that the duty to supervisecannot be delineated or applied, I answer thatjuries daily perform greater miracles. What areasonable and prudent parent would have done insimilar circumstances should be the test andjurors, many of them parents themselves, drawingon their life experiences, should not find the taskinsuperable....Moreover, the concept of elemental fairnessunderlying our decisions in Dole v. Dow Chem.Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282N.E.2d 288 and Kelly v. Long Is. Light Co., 31N.Y.2d 25, 334 N.Y.S.2d 851, 286 N.E.2d 241impels recognition of the tort. For as is so wellillustrated by the Holodook case now before thecourt, what logic can there be for a rule that deniesthe negligent driver recourse against the parentwhose responsibility for the child's injuries may beWOLF V. SCOTT

§ B. FAMILY IMMUNITIES 223greater?... That the nonparent defendant should bearthe full loss to which the parent has contributedruns counter to the evolution in our law which istoward a system of comparative fault.BREITEL, C.J., and GABRIELLI, JONESand WACHTLER, JJ., concur with SAMUELRABIN, J.JASEN, J., dissents and votes to reverse in aseparate opinion in which STEVENS, J., concurs.Questions and Notes1. Which of the following caretakers would beentitled to parental immunity?a) grandmother who lives in the home andcares for the child without pay while theparents are at work;b) same as (a), except grandmotherdoesn't live at home;c) an aunt who lives in the home butreceives compensation for day care;d) a neighbor who cares for the child inexchange for similar services for her ownchild; ande) a day care center owned by a for profitcorporation?2. Although parents may be immune fromsuits by their children for negligent parenting,third parties may sue the parents if the third partyis injured due to a parent's negligence. However,such claims are limited; see RESTATEMENT (2D),TORTS:§ 316. Duty of Parent to Control Conductof ChildA parent is under a duty to exercisereasonable care so to control his minorchild as to prevent it from intentionallyharming others or from so conductingitself as to create an unreasonable risk ofbodily harm to them, if the parent (a)knows or has reason to know that he hasthe ability to control his child, and (b)knows or should know of the necessityand opportunity for exercising suchcontrol.See Carey v. Reeve, 56 Wash. App. 18, 781P.2d 904 (1989) (child's parents sued playmate'smother and grandparents for burn injuriessustained from allegedly negligent supervision). Isthe imposition of this obligation inconsistent withthe concern expressed elsewhere that courts oughtto grant families some discretion in decisionsregarding childrearing?3. Other intra-family immunities (e.g., spousalimmunity) have largely been eliminated. See, CarlTobias, The Imminent Demise of InterspousalImmunity, 60 MONT. L. REV. 101 (1999).4. Some jurisdictions have enacted statutesthat make parents strictly liable for malicious tortscommitted by their children, but typically thestatutes place modest upper limits on the parents'liability; see, e.g., CAL. CIV. CODE § 1714.1.(maximum $25,000).5. It is possible for courts or legislatures toreduce rather than eliminate the duty to usereasonable care. A prominent example is the"automobile guest statute," which has declined inpopularity over the years. As automobiles cameinto general use, a variety of legislatures enactedstatutes which lowered the standard of care driversowed to "guest passengers" (defined as those whowere transported gratuitously, rather than as farepayingpatrons of a railroad, taxicab, etc.). Failureto use ordinary care was insufficient to establishliability; instead, a plaintiff needed to establishthat the driver acted with either willful, wanton, orreckless (or all three!) behavior regarding thepassenger's safety. The rationale for such statuteswas to protect and encourage the hospitablesharing of automobiles and to prevent collusionbetween a driver and a passenger in seekinginsurance awards.More recently, these statutes have beensuperseded, either through legislative reform (as inWashington (RCW 46.080.080, repealed, Laws of1974)) or through equal-protection constitutionalchallenges (as in Utah, Malan v. Lewis, 693 P.2d661 (Utah 1984)). Only a few states still have suchstatutes and further changes seem likely. For ahistory of the decline of automobile guest statutes,see PROSSER & KEETON, § 34.HOLODOOK V. SPENCER

224 4. IMMUNITY§ C. Worker's CompensationWOLF v. SCOTT WETZEL SERVICES,INC.113 Wash. 2d 665, 782 P.2d 203 (1989)ANDERSEN, JusticeIn this case we are presented with the questionof whether the Industrial Insurance Act bars anemployee from bringing a civil action, outside theworkers' compensation system, against the claimsadministrator of a self-insured employer forwrongful delay or termination of workers'compensation benefits.The parties have stipulated to the followingfacts. On April 27, 1979, Scott Wolf injured hislower back while working as a truck driver for St.Regis Lumber Company in Marysville. Whiledriving his truck near Mt. Vernon, he noticed thathis load of lumber had shifted. He injured hislower back while attempting to lift a 4x16x22timber back into place. Mr. Wolf's claim wasadministered by Scott Wetzel Services, Inc. ScottWetzel Services contracted with St. Regis tomanage its worker's compensation claims, forwhich St. Regis is self-insured pursuant to R.C.W.Chapter 51.14. From the date of his injury untilNovember 7, 1979, Mr. Wolf received time losscompensation and payment of medical bills fromSt. Regis. On November 7, 1979, Gary Ladd ofScott Wetzel Services terminated time losscompensation to Mr. Wolf based on a report fromWolf's attending physician, Dr. Charles Anderson,that Mr. Wolf was capable of gainful employment.In January 1980, Mr. Wolf and his new treatingphysician, Dr. Richard McCollum, asked ScottWetzel Services to pay for psychiatric treatment,suggesting that his back injury may havecontributed to psychological problems. At thattime, Mr. Ladd denied this request. On February14, 1980, Mr. Ladd recommended to theDepartment of Labor & Industries that the claimbe closed. The Department closed the claim byorder dated that same day, February 14, 1980, withtime loss compensation as paid and a permanentpartial disability award for five percent of themaximum for unspecified disabilities. This was forlow back injuries only and did not contemplateany award for psychological impairments. Onappeal, the Board of Industrial Insurance Appealsreversed the Department by order dated June 25,1980, re-opening the claim for all purposes,including psychiatric care. Since that time, ScottWetzel Services has paid for Mr. Wolf's visits withhis psychiatrist, Dr. Jules Sicotte, pursuant to theBoard's order. At this time, Mr. Wolf's worker'scompensation claim is still open. Mr. Wolf filedthe present lawsuit [in Superior Court] inNovember 1982, alleging that the initial refusal byScott Wetzel Services to pay for psychiatric careconstitutes bad faith administration of his worker'scompensation claim. The specific allegation in thecomplaint is that "within three years last past,defendant has, by many words, acts and deeds (ofomission as well as commission), tortiouslywithheld and/or delayed plaintiff's workmen'scompensation benefits proximately resulting ingreat injury to plaintiff...." Mr. Wolf's claims inthis lawsuit are based only on the initial refusal topay for psychiatric care and what Mr. Wolfbelieves was premature claim closure, and not onany other alleged conduct.Scott Wetzel Services, Inc., whichadministered the self-insurer's workers'compensation claims (and which was thedefendant below and is the respondent in thiscourt), moved for summary judgment in the trialcourt. The motion was based on its claim thatexclusive subject matter jurisdiction over disputesof this kind is vested in the Department of Laborand Industries. The Superior Court granted themotion and dismissed Mr. Wolf's claims for lackof subject matter jurisdiction. Mr. Wolf thensought direct review in this court. We agreed andretained the case for decision. 1One principal issue is presented.IssueDoes the Industrial Insurance Act bar anemployee from bringing a civil action against acompany, which was hired by a self-insuredemployer to administer workers' compensationclaims, for wrongful delay or termination ofbenefits?DecisionConclusion. The Industrial Insurance Act1RAP 4.2.WOLF V. SCOTT WETZEL SERVICES, INC.

§ C. WORKER’S COMPENSATION 225expressly provides a remedy within the workers'compensation system for wrongful delay ortermination of workers' compensation benefits;that is the exclusive remedy for any such wrongfuldelay or termination.It has long been recognized that the IndustrialInsurance Act (IIA) (RCW Title 51) reflects a quidpro quo compromise between employees andemployers. 2 Under the IIA, the employer payssome claims for which it would not be liable underthe common law in exchange for limited liability. 3The employee, on the other hand, gives upcommon law actions and remedies in exchange forsure and certain relief. 4 As enacted by theLegislature, the IIA accomplishes this quid proquo compromise through the following exclusiveremedy provisions:The state of Washington, ...exercising herein its police and sovereignpower, declares that all phases of thepremises are withdrawn from privatecontroversy, and sure and certain relieffor workers, injured in their work, andtheir families and dependents is herebyprovided regardless of questions of faultand to the exclusion of every otherremedy, proceeding or compensation,except as otherwise provided in this title;and to that end all civil actions and civilcauses of action for such personalinjuries and all jurisdiction of the courtsof the state over such causes are herebyabolished, except as in this title provided.(Italics ours.) R.C.W. 51.04.010 (part).Each worker injured in the course ofhis or her employment, or his or herfamily or dependents in case of death ofthe worker, shall receive compensation inaccordance with this chapter, and, exceptas in this title otherwise provided, suchpayment shall be in lieu of any and allrights of action whatsoever against anyperson whomsoever:... (Italics ours.)R.C.W. 51.32.010 (part).Mr. Wolf contends in effect, however, that acivil action for wrongful delay or termination ofworkers' compensation benefits is not one of theactions abolished by these exclusive remedyprovisions. Thus, according to his view, he shouldbe able to maintain the present civil action in theSuperior Court, quite apart from the statutoryworkers' compensation system. We disagree.Several courts in other jurisdictions haveaddressed the issue of whether a civil cause ofaction lies for wrongful delay or termination ofworkers' compensation benefits. 5 According toProfessor Arthur Larson, a leading authority onworkers' compensation law, and one whoseteachings we have often quoted with approval,"[i]n the great majority of these cases, for onereason or another, a cause of action was held notto lie." (Italics ours.) 2A A. LARSON, WORKMEN'SCOMPENSATION § 68.34(c), at 13-127 to 13-128(1988).Courts have held against the existence of sucha cause of action for essentially two reasons. First,they have been persuaded by the policiesunderlying the exclusive remedy provisions oftheir state workers' compensation statutes. 6 AsProfessor Larson explains in this connection:The temptation to shatter theexclusiveness principle by reaching forthe tort weapon whenever there is a delayin payments or a termination of treatmentis all too obvious, and awareness of thispossibility has undoubtedly been onereason for the reluctance of courts torecognize this tort except in cases ofegregious cruelty or venality. (Footnoteomitted.) 2A A. LARSON, § 68.34(c), at13-145.2McCarthy v. Department of Social & Health Servs.,110 Wash. 2d 812, 816, 759 P.2d 351 (1988); Stertz v.Industrial Ins. Comm'n, 91 Wash. 588, 590, 158 P. 256(1916).3McCarthy, 110 Wash. 2d at 816, 759 P.2d 351; Stertz,91 Wash. at 590, 158 P. 256.4McCarthy, at 816, 759 P.2d 351; Stertz, at 590-91,158 P. 256.5See 2A A. LARSON, WORKMEN'S COMPENSATION §68.34(c) (1988); Annot., Tort Liability of Worker'sCompensation Insurer for Wrongful Delay or Refusal ToMake Payments Due, 8 A.L.R. 4th 902 (1981).6See Robertson v. Travelers Ins. Co., 95 Ill. 2d 441,448, 69 Ill. Dec. 954, 448 N.E.2d 866 (1983); 2A A.LARSON § 68.34(c), at 13-145; Annot., 8 A.L.R. 4th 902, §2.\WOLF V. SCOTT WETZEL SERVICES, INC.

226 4. IMMUNITYSecond, courts have been greatly influencedby the fact that workers' compensation statutestypically contain provisions that impose a penaltyfor wrongful delay or termination of benefits. 7Courts generally take the view that the presence ofsuch a penalty provision in the workers'compensation statute evinces a legislative intentthat the remedy for wrongful delay or terminationof benefits remain within the workers'compensation system. 8 Significantly, as will befurther discussed in some detail, our IIA containsjust such a provision. 9Consistent with the foregoing, the IllinoisSupreme Court, after exhaustively reviewing thecases on the subject, aptly summarized the reasonsfor the majority view:The rationale of these cases hastypically been that the legislature,anticipating that bad faith in delayingpayment of benefits would occur onoccasion, provided a quick, simple andreadily accessible method of resolvingdisputes over such payments without theproof and defenses incident [to a commonlaw action], the intolerable delay inresolution of a lawsuit, economic waste toall and expense to the worker or thespectre of multiple jurisdictions beingengaged in the resolution of the samebasic questions with the possibility ofconflicting results. (Citations and internalquotation marks omitted.) Robertson v.Travelers Ins. Co., 95 Ill. 2d 441, 448, 69Ill. Dec. 954, 448 N.E.2d 866 (1983).A minority of courts, on the other hand, havepermitted a civil cause of action to lie for thewrongful delay or termination of benefits. 10 It hasbeen the reasoning of these courts that the injuryat issue does not arise out of the employmentrelationship, but rather out of the worker's statusas a claimant seeking benefits. 11 They thusconclude that the injury complained of does notfall within the purview of the exclusive remedyprovisions of the workers' compensation statute. 12* * *[The court further affirmed the finding thatdefendant did not engage in outrageous conduct.Such a finding would have allowed the plaintiff tosue outside the IIA.]Mr. Wolf further argues, however, that theexclusive remedy provisions of the IIA apply onlyto an employer, not to a company hired by theemployer to administer workers' compensationclaims. Thus, as his argument goes, he should notbe barred by the IIA from bringing a civil actionagainst Scott Wetzel Services, Inc., the claimsadministrator hired by his employer. Thisargument lacks merit. It is true that the exclusiveremedy provisions of the IIA appear to be directedto actions against the employer. 13 It is also truethat the IIA allows actions to be brought against "athird person, not in a worker's same employ".R.C.W. 51.24.030(1). However, as Judge Grosseof the Court of Appeals responded to a similarargument in his concurring opinion in Deeter,"[t]o permit a right of action against the claimsadjuster merely because it is a `third party' wouldvitiate the policy of [the] IIA." Deeter v. SafewayStores, Inc., 50 Wash. App. 67, 84, 747 P.2d 1103(1987) (GROSSE, J., concurring), review denied,110 Wash. 2d 1016 (1988).* * *Affirmed.CALLOW, C.J., and DORE,BRACHTENBACH, DOLLIVER, UTTER,PEARSON, DURHAM and SMITH, JJ., concur.72A A. LARSON § 68.34(c), at 13-145; Annot., 8A.L.R. 4th 902, § 2.Questions and Notes1. In Birklid v. Boeing Co., 127 Wash.2d 853,82A A. LARSON § 68.34(c), at 13-145.9See RCW 51.48.017 (penalty of $500 or 25 percent ofamount due assessed for unreasonable delay or refusal topay benefits).1112Annot., 8 A.L.R. 4th 902, § 2.Annot., 8 A.L.R. 4th 902, § 2.102A A. LARSON § 68.34(c), at 13-137 to 13-138.13See RCW 51.04.010, 51.32.010.WOLF V. SCOTT WETZEL SERVICES INC.

§ C. WORKER’S COMPENSATION 227904 P.2d 278 (1995), the Washington SupremeCourt permitted employees to sue for injuriesreceived when employees breathed noxious fumesfrom phenol-formaldehyde resin. Prior toemploying this chemical in building airplanes,Boeing had conducted preproduction testing,which was described by Dan Johnson, a Boeingsupervisor: "During MR & D layup of phenolicpre-preg, obnoxious odors were present.Employees complained of dizziness, dryness innose and throat, burning eyes, and upset stomach.We anticipate this problem to increase astemperatures rise and production increases."When the production process began, severalworkers requested more effective ventilation, butBoeing declined to provide it, apparently foreconomic reasons. The court described whathappened next: "As Boeing's supervisorpredicted, when full production began, workersexperienced dermatitis, rashes, nausea, headaches,and dizziness. Workers passed out on the job. Mr.Johnson said he knew these complaints werereactions to working with the phenolic material."Under the standard announced in Wolf, wouldthe employees have a tort claim against theiremployer, or is it barred by the statutory immunityunder the worker's compensation statute?2. In Vallandigham v. Clover Park SchoolDist. No. 400, 79 P.3d 18 (Wash. App. 2003),special education teachers sued their employerafter suffering harm from intentional assaults bystudents. The teachers claimed that, based on thebehavioral profile of the students, the abuse wascertain to occur and fell with in the “deliberateintent” exception to the statutory immunitygranted to employers. Do you think the teachers‟claims would survive the immunity defense?\WOLF V. SCOTT WETZEL SERVICES, INC.

Chapter 5Contributory Fault§ A. The ContributoryNegligence RuleLI v. YELLOW CAB COMPANY OFCALIFORNIA13 Cal. 3d 804, 532 P.2d 1226, 119 Cal. Rptr.858 (1975)SULLIVAN, JusticeIn this case we address the grave and recurrentquestion whether we should judicially declare nolonger applicable in California courts the doctrineof contributory negligence, which bars allrecovery when the plaintiff's negligent conduct hascontributed as a legal cause in any degree to theharm suffered by him, and hold that it must giveway to a system of comparative negligence, whichassesses liability in direct proportion to fault. Aswe explain in detail infra, we conclude that weshould. In the course of reaching our ultimatedecision we conclude that: (1) The doctrine ofcomparative negligence is preferable to the "all-ornothing"doctrine of contributory negligence fromthe point of view of logic, practical experience,and fundamental justice; (2) judicial action in thisarea is not precluded by the presence of section1714 of the Civil Code, which has been said to"codify" the "all-or-nothing" rule and to render itimmune from attack in the courts except onconstitutional grounds; (3) given the possibility ofjudicial action, certain practical difficultiesattendant upon the adoption of comparativenegligence should not dissuade us from charting anew course - leaving the resolution of some ofthese problems to future judicial or legislativeaction; (4) the doctrine of comparative negligenceshould be applied in this state in its so-called"pure" form under which the assessment ofliability in proportion to fault proceeds in spite ofthe fact that the plaintiff is equally at fault as ormore at fault than the defendant; and finally (5)this new rule should be given a limitedretrospective application.The accident here in question occurred nearthe intersection of Alvarado Street and ThirdStreet in Los Angeles. At this intersection ThirdStreet runs in a generally east-west direction alongthe crest of a hill, and Alvarado Street, runninggenerally north and south, rises gently to the crestfrom either direction. At approximately 9 p.m. onNovember 21, 1968, plaintiff Nga Li wasproceeding northbound on Alvarado in her 1967Oldsmobile. She was in the inside lane, and about70 feet before she reached the Third Streetintersection she stopped and then began a left turnacross the three southbound lanes of Alvarado,intending to enter the driveway of a servicestation. At this time defendant Robert Phillips, anemployee of defendant yellow Cab Company, wasdriving a company-owned taxicab southbound inthe middle lane on Alvarado. He came over thecrest of the hill, passed through the intersection,and collided with the right rear portion ofplaintiff's automobile, resulting in personalinjuries to plaintiff as well as considerable damageto the automobile.The court, sitting without a jury, found asfacts that defendant Phillips was traveling atapproximately 30 miles per hour when he enteredthe intersection, that such speed was unsafe at thattime and place, and that the traffic light controllingsouthbound traffic at the intersection was yellowwhen defendant in Phillips drove into theintersection. It also found, however, that plaintiff'sleft turn across the southbound lanes of Alvarado"was made at a time when a vehicle wasapproaching from the opposite direction so closeas to constitute an immediate hazard." Thedispositive conclusion of law was as follows:"That the driving of NGA LI was negligent, thatsuch negligence was a proximate cause of theLI V. YELLOW CAB COMPANY OF CALIFORNIA

§ A. THE CONTRIBUTORY NEGLIGENCE RULE 229collision, and that she is barred from recovery byreason of such contributory negligence." Judgmentfor defendants was entered accordingly.I"Contributory negligence is conduct on thepart of the plaintiff which falls below the standardto which he should conform for his ownprotection, and which is a legally contributingcause cooperating with the negligence of thedefendant in bringing about the plaintiff's harm."(REST. 2D TORTS, § 463.) Thus the American LawInstitute, in its second restatement of the law,describes the kind of conduct on the part of oneseeking recovery for damage caused by negligencewhich renders him subject to the doctrine ofcontributory negligence. What the effect of suchconduct will be is left to a further section, whichstates the doctrine in its clearest essence: "Exceptwhere the defendant has the last clear chance, theplaintiff's contributory negligence bars recoveryagainst a defendant whose negligent conductwould otherwise make him liable to the plaintifffor the harm sustained by him." (REST. 2D TORTS,§ 467.) (Italics added.)This rule, rooted in the long-standingprinciple that one should not recover from anotherfor damages brought upon oneself (see Baltimore& P.R. Co. v. Jones (1877) 95 U.S. 439, 442, 24 L.Ed. 506; Buckley v. Chadwick (1955) 45 Cal. 2d183, 192, 288 P.2d 12, 289 P.2d 242), has been thelaw of this state from its beginning. (See Innis v.The Steamer Senator (1851) 1 Cal. 459, 460-461;Griswold v. Sharpe (1852) 2 Cal. 17, 23-24;Richmond v. Sacramento Valley RailroadCompany (1861) 18 Cal. 351, 356-358; Gay v.Winter (1867) 34 Cal. 153, 162-163; Needham v.S.F. & S.J.R. Co. (1869) 37 Cal. 409, 417-423.)Although criticized almost from the outset for theharshness of its operation, it has weatherednumerous attacks, in both the legislative and thejudicial arenas, seeking its amelioration orrepudiation. We have undertaken a thoroughreexamination of the matter, giving particularattention to the common law and statutory sourcesof the subject doctrine in this state. As we haveindicated, this reexamination leads us to theconclusion that the "all-or-nothing" rule ofcontributory negligence can be and ought to besuperseded by a rule which assesses liability inproportion to fault.It is unnecessary for us to catalogue theenormous amount of critical comment that hasbeen directed over the years against the "all-ornothing"approach of the doctrine of contributorynegligence. The essence of that criticism has beenconstant and clear: the doctrine is inequitable in itsoperation because it fails to distributeresponsibility in proportion to fault. 1 Against thishave been raised several arguments injustification, but none have proved even remotelyadequate to the task. 2 The basic objection to the1Dean Prosser states the kernel of critical comment inthese terms: "It [the rule] places upon one party the entireburden of a loss for which two are, by hypothesis,responsible." (PROSSER, TORTS (4th ed. 1971) § 67, p.433.) Harper and James express the same basic idea:"[T]here is no justification - in either policy or doctrine -for the rule of contributory negligence, except for thefeeling that if one man is to be held liable because of hisfault, then the fault of him who seeks to enforce thatliability should also be considered. But this notion does notrequire the all-or-nothing rule, which would exonerate avery negligent defendant for even the slight fault of hisvictim. The logical corollary of the fault principle wouldbe a rule of comparative or proportional negligence, notthe present rule." (2 HARPER & JAMES, THE LAW OF TORTS(1956) § 22.3, p. 1207.)2Dean Prosser, in a 1953 law review article on thesubject which still enjoys considerable influence,addressed himself to the commonly advanced justificatoryarguments in the following terms: "There has been muchspeculation as to why the rule thus declared found suchready acceptance in later decisions, both in England and inthe United States. The explanations given by the courtsthemselves never have carried much conviction. Most ofthe decisions have talked about `proximate cause,' sayingthat the plaintiff's negligence is an intervening, insulatingcause between the defendant's negligence and the injury.But this cannot be supported unless a meaning is assignedto proximate cause which is found nowhere else. If twoautomobiles collide and injure a bystander, the negligenceof one driver is not held to be a superseding cause whichrelieves the other of liability; and there is no visible reasonfor any different conclusion when the action is by onedriver against the other. It has been said that the defensehas a penal basis, and is intended to punish the plaintiff forhis own misconduct; or that the court will not aid one whois himself at fault, and he must come into court with cleanhands. But this is no explanation of the many cases,particularly those of the last clear chance, in which aplaintiff clearly at fault is permitted to recover. It has beensaid that the rule is intended to discourage accidents, bydenying recovery to those who fail to use proper care fortheir own safety; but the assumption that the speedingmotorist is, or should be, meditating on the possible failureof a lawsuit for his possible injuries lacks all reality, and itis quite as reasonable to say that the rule promotesLI V. YELLOW CAB COMPANY OF CALIFORNIA

230 5. CONTRIBUTORY FAULTdoctrine - grounded in the primal concept that in asystem in which liability is based on fault, theextent of fault should govern the extent of liability- remains irresistible to reason and all intelligentnotions of fairness.Furthermore, practical experience with theapplication by juries of the doctrine ofcontributory negligence has added its weight toanalyses of its inherent shortcomings: "Every triallawyer is well aware that juries often do in factallow recovery in cases of contributorynegligence, and that the compromise in the juryroom does result in some diminution of thedamages because of the plaintiff's fault. But theprocess is at best a haphazard and mostunsatisfactory one." (Prosser, ComparativeNegligence, supra, p. 4; fn. omitted.) (See alsoPROSSER, TORTS, supra, § 67, pp. 436-437;Comments of Malone and Wade in Comments onMaki v. Frelk - Comparative v. ContributoryNegligence: Should the Court or LegislatureDecide? (1968) 21 VAND. L. REV. 889, at pp. 934,943; ULMAN, A JUDGE TAKES THE STAND (1933)pp. 30-34; cf. Comment of Kalven, 21 VAND. L.REV. 889, 901-904.) It is manifest that this state ofaffairs, viewed from the standpoint of the healthand vitality of the legal process, can only detractfrom public confidence in the ability of law andlegal institutions to assign liability on a just andconsistent basis. (See Keeton, Creative Continuityin the Law of Torts (1962) 75 HARV. L. REV. 463,505; Comment of Keeton in Comments on Maki v.Frelk, supra, 21 VAND. L. REV. 889, at p. 916 3 ;accidents by encouraging the negligent defendant.Probably the true explanation lies merely in the highlyindividualistic attitude of the common law of the earlynineteenth century. The period of development ofcontributory negligence was that of the industrial revolution,and there is reason to think that the courts found inthis defense, along with the concepts of duty andproximate cause, a convenient instrument of control overthe jury, by which the liabilities of rapidly growingindustry were curbed and kept within bounds." (Prosser,Comparative Negligence (1953) 41 CAL. L. REV. 1, 3-4;fns. omitted. For a more extensive consideration of thesame subject, see 2 HARPER & JAMES, supra, § 22.2, pp.1199-1207.) To be distinguished from arguments raised injustification of the "all or nothing" rule are practicalconsiderations which have been said to counsel against theadoption of a fairer and more logical alternative. The latterconsiderations will be discussed in a subsequent portion ofthis opinion.3Professor Keeton states the matter as follows inNote (1974) 21 UCLA L. REV. 1566, 1596-1597.)It is in view of these theoretical and practicalconsiderations that to this date 25 states, 4 haveabrogated the "all or nothing" rule of contributorynegligence and have enacted in its place generalapportionment statutes calculated in one manneror another to assess liability in proportion to fault.In 1973 these states were joined by Florida, whicheffected the same result by judicial decision.(Hoffman v. Jones (Fla. 1973) 280 So. 2d 431.) Weare likewise persuaded that logic, practicalexperience, and fundamental justice counselagainst the retention of the doctrine renderinghis Vanderbilt Law Review comment: "In relation tocontributory negligence, as elsewhere in the law,uncertainty and lack of evenhandedness are produced bycasuistic distinctions. This has happened, for example, indoctrines of last clear chance and in distinctions betweenwhat is enough to sustain a finding of primary negligenceand what more is required to sustain a finding ofcontributory negligence. Perhaps even more significant,however, is the casuistry of tolerating blatant jurydeparture from evenhanded application of the legal rules ofnegligence and contributory negligence with theconsequence that a kind of rough apportionment ofdamages occurs, but in unpoliced, irregular, andunreasonably discriminatory fashion. Moreover, theexistence of this practice sharply reduces the true scope ofthe substantive change effected by openly adoptingcomparative negligence. [&] Thus, stability, predictability,and evenhandedness are better served by the change tocomparative negligence than by adhering in theory to a lawthat contributory fault bars when this rule has ceased to bethe law in practice." (21 VAND. L. REV. at p. 916).A contrary conclusion is drawn in an article by Lewis F.Powell, Jr., now an Associate Justice of the United StatesSupreme Court. Because a loose form of comparativenegligence is already applied in practice by independentAmerican juries, Justice Powell argues, the"all-or-nothing" rule of contributory negligence ought to beretained as a check on the jury's tendency to favor theplaintiff. (Powell, Contributory Negligence: A NecessaryCheck on the American Jury (1957) 43 A.B.A.J. 1055.)4Arkansas, Colorado, Connecticut, Georgia, Hawaii,Idaho, Maine, Massachusetts, Minnesota, Mississippi,Nebraska, Nevada, New Hampshire, New Jersey, NorthDakota, Oklahoma, Oregon, Rhode Island, South Dakota,Texas, Utah, Vermont, Washington, Wisconsin, Wyoming.(SCHWARTZ, COMPARATIVE NEGLIGENCE (1974), AppendixA, pp. 367-369.) In the federal sphere, comparativenegligence of the "pure" type (see Infra) has been the rulesince 1908 in cases arising under the Federal Employers'Liability Act (see 45 U.S.C. § 53) and since 1920 in casesarising under the Jones Act (see 46 U.S.C. § 688) and theDeath on the High Seas Act (see 46 U.S.C. § 766.)LI V. YELLOW CAB COMPANY OF CALIFORNIA

§ A. THE CONTRIBUTORY NEGLIGENCE RULE 231contributory negligence a complete bar torecovery - and that it should be replaced in thisstate by a system under which liability for damagewill be borne by those whose negligence caused itin direct proportion to their respective fault. 5The foregoing conclusion, however, clearlytakes us only part of the way. It is strenuously andably urged by defendants and two of the amicicuriae that whatever our views on the relativemerits of contributory and comparativenegligence, we are precluded from making thoseviews the law of the state by judicial decision.Moreover, it is contended, even if we are not soprecluded, there exist considerations of a practicalnature which should dissuade us from embarkingupon the course which we have indicated. Weproceed to take up these two objections in order.IIIt is urged that any change in the law ofcontributory negligence must be made by theLegislature, not by this court. Although thedoctrine of contributory negligence is of judicialorigin - its genesis being traditionally attributed tothe opinion of Lord Ellenborough in Butterfield v.Forrester (K.B. 1809) 103 Eng. Rep. 926 - theenactment of section 1714 of the Civil Code 6 in1872 codified the doctrine as it stood at that dateand, the argument continues, rendered itinvulnerable to attack in the courts except onconstitutional grounds. Subsequent cases of thiscourt, it is pointed out, have unanimously affirmedthat - barring the appearance of someconstitutional infirmity - the "all-or-nothing" ruleis the law of this state and shall remain so until theLegislature directs otherwise. The fundamentalconstitutional doctrine of separation of powers, theargument concludes, requires judicial abstention.5In employing the generic term "fault" throughout thisopinion we follow a usage common to the literature on thesubject of comparative negligence. In all cases, however,we intend the term to import nothing more than"negligence" in the accepted legal sense.6Section 1714 of the Civil Code has never beenamended. It provides as follows: "Everyone is responsible,not only for the result of his willful acts, but also for aninjury occasioned to another by his want of ordinary careor skill in the management of his property or person,except so far as the latter has, willfully or by want ofordinary care, brought the injury upon himself. The extentof liability in such cases is defined by the Title onCompensatory Relief." (Italics added.)* * *We have concluded that the foregoingargument, in spite of its superficial appeal, isfundamentally misguided. As we proceed to pointout and elaborate below, it was not the intention ofthe Legislature in enacting section 1714 of theCivil Code, as well as other sections of that codedeclarative of the common law, to insulate thematters therein expressed from further judicialdevelopment; rather it was the intention of theLegislature to announce and formulate existingcommon law principles and definitions forpurposes of orderly and concise presentation andwith a distinct view toward continuing judicialevolution.* * *We think that the foregoing establishesconclusively that the intention of the Legislaturein enacting section 1714 of the Civil Code was tostate the basic rule of negligence together with thedefense of contributory negligence modified bythe emerging doctrine of last clear chance. Itremains to determine whether by so doing theLegislature intended to restrict the courts fromfurther development of these concepts accordingto evolving standards of duty, causation, andliability.* * *IIIWe are thus brought to the second group ofarguments which have been advanced bydefendants and the amici curiae supporting theirposition. Generally speaking, such argumentsexpose considerations of a practical nature which,it is urged, counsel against the adoption of a ruleof comparative negligence in this state even ifsuch adoption is possible by judicial means.The most serious of these considerations arethose attendant upon the administration of a ruleof comparative negligence in cases involvingmultiple parties. One such problem may arisewhen all responsible parties are not brought beforethe court: it may be difficult for the jury toevaluate relative negligence in suchcircumstances, and to compound this difficultysuch an evaluation would not be res judicata in asubsequent suit against the absent wrongdoer.Problems of contribution and indemnity amongjoint tortfeasors lurk in the background. (SeeLI V. YELLOW CAB COMPANY OF CALIFORNIA

232 5. CONTRIBUTORY FAULTgenerally Prosser, Comparative Negligence,supra, 41 CAL. L. REV. 1, 33-37; SCHWARTZ,COMPARATIVE NEGLIGENCE, supra, §§ 16.1-16.9,pp. 247-274.)A second and related major area of concerninvolves the administration of the actual processof fact-finding in a comparative negligencesystem. The assigning of a specific percentagefactor to the amount of negligence attributable to aparticular party, while in theory a matter of littledifficulty, can become a matter of perplexity in theface of hard facts. The temptation for the jury toresort to a quotient verdict in such circumstancescan be great. (SEE SCHWARTZ, supra, § 17.1, pp.275-279.) These inherent difficulties are not,however, insurmountable. Guidelines might beprovided the jury which will assist it in keepingfocussed upon the true inquiry (see, e.g.,SCHWARTZ, supra, § 17.1, pp. 278-279), and theutilization of special verdicts 7 or juryinterrogatories can be of invaluable assistance inassuring that the jury has approached its sensitiveand often complex task with proper standards andappropriate reverence. (See SCHWARTZ, supra, §17.4, pp. 282-291; Prosser, ComparativeNegligence, supra, 41 CAL. L. REV., pp. 28-33.)The third area of concern, the status of thedoctrines of last clear chance and assumption ofrisk, involves less the practical problems ofadministering a particular form of comparativenegligence than it does a definition of thetheoretical outline of the specific form to beadopted. Although several states which applycomparative negligence concepts retain the lastclear chance doctrine (see SCHWARTZ, supra, §7.2, p. 134), the better reasoned position seems tobe that when true comparative negligence isadopted, the need for last clear chance as apalliative of the hardships of the "all-or-nothing"rule disappears and its retention results only in a7It has been argued by one of the amici curiae that themandatory use of special verdicts in negligence caseswould require amendment of section 625 of the Code ofCivil Procedure, which reposes the matter of specialfindings within the sound discretion of the trial court. (SeeCembrook v. Sterling Drug Inc. (1964) 231 Cal. App. 2d52, 62-65, 41 Cal. Rptr. 492.) This, however, poses noproblem at this time. For the present we impose nomandatory requirement that special verdicts be used butleave the entire matter of jury supervision within the sounddiscretion of the trial courts.windfall to the plaintiff in direct contravention ofthe principle of liability in proportion to fault. (SeeSCHWARTZ, supra, § 7.2, pp. 137-139; Prosser,Comparative Negligence, supra, 41 CAL. L. REV.,p. 27.) As for assumption of risk, we haverecognized in this state that this defense overlapsthat of contributory negligence to some extent andin fact is made up of at least two distinct defenses."To simplify greatly, it has been observed ... thatin one kind of situation, to wit, where a plaintiffunreasonably undertakes to encounter a specificknown risk imposed by a defendant's negligence,plaintiff's conduct, although he may encounter thatrisk in a prudent manner, is in reality a form ofcontributory negligence.... Other kinds ofsituations within the doctrine of assumption of riskare those, for example, where plaintiff is held toagree to relieve defendant of an obligation ofreasonable conduct toward him. Such a situationwould not involve contributory negligence, butrather a reduction of defendant's duty of care."(Grey v. Fibreboard Paper Products Co. (1966) 65Cal. 2d 240, 245-246, 53 Cal. Rptr. 545, 548, 418P.2d 153, 156; see also Fonseca v. County ofOrange (1972) 28 Cal. App. 3d 361, 368-369, 104Cal. Rptr. 566; see generally, 4 WITKIN,SUMMARY OF CAL. LAW, Torts, § 723, pp. 3013-3014; 2 HARPER & JAMES, THE LAW OF TORTS,supra, § 21.1, pp. 1162-1168; cf. PROSSER, TORTS,supra, § 68, pp. 439-441.) We think it clear thatthe adoption of a system of comparativenegligence should entail the merger of the defenseof assumption of risk into the general scheme ofassessment of liability in proportion to fault inthose particular cases in which the form ofassumption of risk involved is no more than avariant of contributory negligence. (See generally,SCHWARTZ, supra, ch. 9, pp. 153-175.)Finally there is the problem of the treatmentof willful misconduct under a system ofcomparative negligence. In jurisdictions followingthe "all-or-nothing" rule, contributory negligenceis no defense to an action based upon a claim ofwillful misconduct (see REST. 2D TORTS, § 503;PROSSER, TORTS, supra, § 65, p. 426), and this isthe present rule in California. (Williams v. Carr(1968) 68 Cal. 2d 579, 583, 68 Cal. Rptr. 305, 440P.2d 505.) As Dean Prosser has observed, "[this] isin reality a rule of comparative fault which isbeing applied, and the court is refusing to set upthe lesser fault against the greater." (PROSSER,TORTS, supra, § 65, p. 426.) The thought is thatthe difference between willful and wantonLI V. YELLOW CAB COMPANY OF CALIFORNIA

§ A. THE CONTRIBUTORY NEGLIGENCE RULE 233misconduct and ordinary negligence is one of kindrather than degree in that the former involvesconduct of an entirely different order, and underthis conception it might well be urged thatcomparative negligence concepts should have noapplication when one of the parties has been guiltyof willful and wanton misconduct. In has beenpersuasively argued, however, that the loss ofdeterrent effect that would occur upon applicationof comparative fault concepts to willful andwanton misconduct as well as ordinary negligencewould be slight, and that a comprehensive systemof comparative negligence should allow for theapportionment of damages in all cases involvingmisconduct which falls short of being intentional.(SCHWARTZ, supra, § 5.3, p. 108.) The law ofpunitive damages remains a separateconsideration. (See SCHWARTZ, supra, § 5.4, pp.109-111.)The existence of the foregoing areas ofdifficulty and uncertainty (as well as others whichwe have not here mentioned - see generallySCHWARTZ, supra, § 21.1, pp. 335-339) has notdiminished our conviction that the time for arevision of the means for dealing withcontributory fault in this state is long past due andthat it lies within the province of this court toinitiate the needed change by our decision in thiscase. Two of the indicated areas (i.e., multipleparties and willful misconduct) are not involved inthe case before us, and we consider it neithernecessary nor wise to address ourselves to specificproblems of this nature which might be expectedto arise....* * *It remains to identify the precise form ofcomparative negligence which we now adopt forapplication in this state. Although there are manyvariants, only the two basic forms need beconsidered here. The first of these, the so-called"pure" form of comparative negligence, apportionsliability in direct proportion to fault in all cases.This was the form adopted by the Supreme Courtof Florida in Hoffman v. Jones, supra, and itapplies by statute in Mississippi, Rhode Island,and Washington. Moreover it is the form favoredby most scholars and commentators. (See e.g.,Prosser, Comparative Negligence, supra, 41 CAL.L. REV. 1, 21-25; PROSSER, TORTS, supra, § 67,pp. 437-438; SCHWARTZ, supra, § 21.3, pp. 341-348; Comments on Maki v. Frelk - Comparative v.Contributory Negligence: Should the Court orLegislature Decide?, supra, 21 VAND. L. REV. 889(Comment by Keeton at p. 906, Comment byLeflar at p. 918.) The second basic form ofcomparative negligence, of which there are severalvariants, applies apportionment based on fault upto the point at which the plaintiff's negligence isequal to or greater than that of the defendant -when that point is reached, plaintiff is barred fromrecovery. Nineteen states have adopted this formor one of its variants by statute. The principalargument advanced in its favor is moral in nature:that it is not morally right to permit one more atfault in an accident to recover from one less atfault. Other arguments assert the probability ofincreased insurance, administrative, and judicialcosts if a "pure" rather than a "50 percent" systemis adopted, but this has been seriously questioned.(See authorities cited in SCHWARTZ, supra, § 21.3,pp. 344-346; see also Vincent v. Pabst BrewingCo. (1970) 47 Wis. 2d 120, 138, 177 N.W.2d 513(dissenting opinion).)We have concluded that the "pure" form ofcomparative negligence is that which should beadopted in this state. In our view the "50 percent"system simply shifts the lottery aspect of thecontributory negligence rule to a different ground.As Dean Prosser has noted, under such a system"[i]t is obvious that a slight difference in theproportionate fault may permit a recovery; andthere has been much justified criticism of a ruleunder which a plaintiff who is charged with 49percent of a total negligence recovers 51 percentof his damages, while one who is charged with 50percent recovers nothing at all." 8 Prosser,Comparative Negligence, supra, 41 CAL. L. REV.1, 25; fns. omitted.) In effect "such a rule distortsthe very principle it recognizes, i.e., that personsare responsible for their acts to the extent theirfault contributes to an injurious result. The partialrule simply lowers, but does not eliminate, the bar8This problem is compounded when the injuriousresult is produced by the combined negligence of severalparties. For example in a three-car collision a plaintiffwhose negligence amounts to one-third or more recoversnothing; in a four-car collision the plaintiff is barred if hisnegligence is only one-quarter of the total. (See Juenger,Brief for Negligence Law Section of the State Bar ofMichigan in Support of Comparative Negligence asAmicus Curiae, Parsonson v. Construction EquipmentCompany (1972) 18 WAYNE L. REV. 3, 50-51.)LI V. YELLOW CAB COMPANY OF CALIFORNIA

234 5. CONTRIBUTORY FAULTof contributory negligence." (Juenger, Brief forNegligence Law Section of the State Bar ofMichigan in Support of Comparative Negligenceas Amicus Curiae, Parsonson v. ConstructionEquipment Company, supra, 18 WAYNE L. REV. 3,50; see also SCHWARTZ, supra, § 21.3, p. 347.)For all of the foregoing reasons we concludethat the "all-or-nothing" rule of contributorynegligence as it presently exists in this state shouldbe and is herewith superseded by a system of"pure" comparative negligence, the fundamentalpurpose of which shall be to assign responsibilityand liability for damage in direct proportion to theamount of negligence of each of the parties.Therefore, in all actions for negligence resulting ininjury to person or property, the contributorynegligence of the person injured in person orproperty shall not bar recovery, but the damagesawarded shall be diminished in proportion to theamount of negligence attributable to the personrecovering. The doctrine of last clear chance isabolished, and the defense of assumption of risk isalso abolished to the extent that it is merely avariant of the former doctrine of contributorynegligence; both of these are to be subsumedunder the general process of assessing liability inproportion to negligence. Pending future judicialor legislative developments, the trial courts of thisstate are to use broad discretion in seeking toassure that the principle stated is applied in theinterest of justice and in furtherance of thepurposes and objectives set forth in this opinion.It remains for us to determine the extent towhich the rule here announced shall haveapplication to cases other than those which arecommenced in the future.... Upon maturereflection, in view of the very substantial numberof cases involving the matter here at issue whichare now pending in the trial and appellate courts ofthis state, and with particular attention toconsiderations of reliance applicable to individualcases according to the stage of litigation whichthey have reached, we have concluded that a ruleof limited retroactivity should obtain here.Accordingly we hold that the present opinion shallbe applicable to all cases in which trial has notbegun before the date this decision becomes finalin this court, but that it shall not be applicable toany case in which trial began before that date(other than the instant case) - except that if anyjudgment be reversed on appeal for other reasons,this opinion shall be applicable to any retrial.* * *The judgment is reversed.CLARK, Justice (dissenting)* * *I dispute the need for judicial - instead oflegislative - action in this area. The majority isclearly correct in its observation that our societyhas changed significantly during the 103-yearexistence of section 1714. But this social changehas been neither recent nor traumatic, and thecriticisms leveled by the majority at the presentoperation of contributory negligence are not new. Icannot conclude our society's evolution has nowrendered the normal legislative processinadequate.Further, the Legislature is the branch best ableto effect transition from contributory tocomparative or some other doctrine of negligence.Numerous and differing negligence systems havebeen urged over the years, yet there remainswidespread disagreement among both thecommentators and the states as to which one isbest....* * *By abolishing this century old doctrine today,the majority seriously erodes our constitutionalfunction. We are again guilty of judicialchauvinism.Questions and Notes1. The advantages of comparative negligenceare widely recognized, reflected in theoverwhelming number of jurisdictions that haveadopted it. A recent article suggests additionalsupport based upon economic analysis; see Orr,The Superiority of Comparative Negligence:Another Vote, 20 J. Legal Stud. 119 (1991). As of1996, only four states (Alabama, Maryland, NorthCarolina, and Virginia) retained the contributorynegligence rule. Steven Gardner, ContributoryNegligence, Comparative Negligence, and StareDecisis in North Carolina, 18 CAMPBELL L. REV.1 (1996). See also Christopher J. Robinette andPaul G. Sherland. Contributory or Comparative:Which Is the Optimal Negligence Rule? 24 N. Ill.U. L. Rev. 41 (2003)LI V. YELLOW CAB COMPANY OF CALIFORNIA

§ A. THE CONTRIBUTORY NEGLIGENCE RULE 2352. "Contributory negligence" has a specificlegal meaning; it refers to the plaintiff'snegligence. Some say that contributory negligencewas done away with when comparative negligencewas adopted. However, most commentators haveretained the term contributory negligence to referto the phenomenon of a plaintiff's negligence,even though the treatment of that phenomenonchanged with the adoption of comparativenegligence. Thus, although contributorynegligence no longer bars a plaintiff's right torecover, it still is assigned a share of fault to beused in reducing (or in so-called "modified"contributory negligence states, potentially barring)a plaintiff's recovery.3. Imputed Contributory Negligence. Justas an employer can be held vicariously liable forthe acts of his employee, even if the employer waswithout fault, courts at one time held plaintiffsvicariously liable for the acts of others, using thedoctrine of "imputed contributory negligence." Forexample, when a passenger was injured in anautomobile accident caused in part by thenegligence of the driver, some courts would treatthe driver as an agent of the passenger, and imputethe driver's negligence to the passenger forpurposes of applying the contributory negligencerule. Most uses of imputed contributorynegligence have fallen to the wayside, eitherswallowed by theories of comparative fault,prohibited by statute (e.g., R.C.W. 4.22.020,eliminating imputed contributory negligence forspouses and minors) or overturned by case law(e.g., Buck v. State, 222 Mont. 423, 723 P.2d 210(1986) (passengers may be contributorilynegligent by choosing to ride with an intoxicateddriver but driver's negligence could not beimputed to passengers)). The most significant areawhere a form of imputed contributory negligencehas survived is in cases where a wrongful deathaction is provided for the relatives of a decedent,but the decedent's contributory fault is imputed tothe claims of the surviving relatives.4. Seat Belt Defense. Over half of those stateswith comparative negligence have made room forthe so-called "seat belt defense." Prior to theadoption of comparative fault, the seat beltdefense was viewed skeptically by courts, whowere afraid that its use might bar otherwiselegitimate plaintiffs' claims. A distinction wasdrawn between negligence that caused theaccident itself, and negligence that merelyexacerbated the damages. One issue currentlypending is whether or not the recently enactedmandatory seatbelt laws will allow a negligenceper se instruction. Some jurisdictions haveprovided to the contrary by statute. (CALIF. VEH.CODE § 27315(j): "In any civil action, a violation[of the seatbelt requirement] ... shall not establishnegligence as a matter of law or negligence per sefor comparative fault purposes, but negligencemay be proven as a fact without regard to theviolation.") See generally, Schwartz, The Seat BeltDefense and Mandatory Seat Belt Usage: Law,Ethics, and Economics, 24 IDAHO L. REV. 275(1988), calling for the defense's incorporation intocomparative negligence systems, and Note onRecent Cases, 102 HARV. L. REV. 925 (1989)(arguing that a negligence per se finding when seatbelt statutes have been violated would bestencourage the use of seat belts).5. One of the most interesting features of theLi case is the Court's treatment of the codificationof the common law. The debate over how courtsshould treat statutory modifications of commonlaw is reviewed in G. CALABRESI, A COMMONLAW FOR THE AGE OF STATUTES (1982).§ B. Assumption of RiskSMITH v. BAKER & SONSH.L. [1891] 4 All E.L.R. 69Lord HALSBURYThe action was an action in which the plaintiffsued his employers for injuries sustained while inthe course of working in their employment. Hewas employed in working at a drill where twofellow workmen were engaged in striking with aLI V. YELLOW CAB COMPANY OF CALIFORNIA

236 5. CONTRIBUTORY FAULThammer at the drill, which he was employed tohold in the proper position. The nature of theemployment was one which involved his attentionbeing fixed upon the drill, that it might be held ina proper position when receiving alternate strokesfrom the hammers wielded by his fellowworkmen. The place where he was employed wasin a cutting, and in his immediate proximityanother set of workmen were engaged in workingin the cutting, and taking stones out of it. For thepurposes of this operation a steam crane was used,and occasionally, though not invariably, the stoneslifted by the crane were swung over the placewhere the plaintiff was employed. On the occasionwhich gave rise to the action a stone was swungover the plaintiff, and from some cause notexplained, and not attempted to be explained, thestone slipped from the crane, fell upon theplaintiff, and did him serious injury.The first point attempted to be argued at yourLordships' Bar was that there was no evidence togo to the jury of any negligence. It is manifestupon the notes of the learned county court judgethat no such point was taken at the trial, and it is,therefore, perfectly intelligible why no evidence isreferred to with respect both to the crane, themanner of slinging the stone, or the mode in whichthe stone was fastened. Each of these things wouldhave been material to consider if any suchquestion had in fact been raised. I will not myselfsuggest, or even conjecture, what was the cause ofthe stone falling, or what precautions oughtproperly to have been taken against such acontingency. What is, or is not, negligence undersuch circumstances may depend upon a variety ofconsiderations.* * *The objection raised, and the only objectionraised, to the plaintiff's right to recover was that hehad voluntarily undertaken the risk. That is thequestion, and the only question, which any of thecourts, except the county court itself, hadjurisdiction to deal with. The facts upon which thatquestion depends are given by the plaintiff himselfin his evidence. Speaking of the operation ofslinging the stones over the heads of the workmen,he said himself that it was not safe, and thatwhenever he had sufficient warning, or saw it, hegot out of the way. The ganger told the workmenemployed to get out of the way of the stoneswhich were being slung. The plaintiff said he hadbeen long enough at the work to know that it wasdangerous, and another fellow-workman in hishearing complained that it was a dangerouspractice. Giving full effect to these admissions,upon which the whole case for the defendantsdepends, it appears to me that the utmost that theyprove is that in the course of the work it didoccasionally happen that stones were slung in thisfashion over workmen's heads, that the plaintiffknew this, and believed it to be dangerous, andwhenever he could he got out of the way. Thequestion of law that seems to be in debate iswhether upon these facts, and on an occasionwhen the very form of his employment preventedhim looking out for himself, he consented toundergo this particular risk, and so disentitledhimself to recover when a stone was negligentlyslung over his head, or negligently permitted tofall on him and do him injury.I am of opinion that the application of themaxim volenti non fit injuria is not warranted bythese facts. I do not think the plaintiff did consentat all. His attention was fixed upon a drill, andwhile, therefore, he was unable to take precautionshimself, a stone was negligently slung over hishead without due precautions against its beingpermitted to fall.... I think that a person who relieson the maxim must show a consent to theparticular thing done.* * *LORD BRAMWELL....In the course of the argument, I said that themaxim volenti non fit injuria did not apply to acase of negligence; that a person never was volensthat he should be injured by negligence, at least,unless he specially agreed to it; I think so still. Themaxim applies where, knowing the danger or risk,the man is volens to undertake the work. What aremaxims but the expression of that which goodsense has made a rule.... But drop the maxim.Treat it as a question of bargain. The plaintiff herethought the pay worth the risk, and did not bargainfor a compensation if hurt; in effect he undertookthe work with its risks for his wages and no more.He says so. Suppose he had said "If I am to runthis risk you must give me 6s. a day and not 5s.,"and the master agreed, would he in reason have aclaim if he got hurt? Clearly not. What differenceis there if the master says, "No, I will only give the5s."? None. I am ashamed to argue it.SMITH V. BAKER AND SONS

§ B. ASSUMPTION OF RISK 237Questions and Notes1. How would you translate the maxim volentinon fit injuria?2. Why was Lord Bramwell "ashamed toargue" his position?3. In Murphy v. Steeplechase Amusement Co.,250 N.Y. 479, 166 N.E. 173 (1929), the plaintiffwas injured at an amusement park in ConeyIsland. He was riding on an attraction called "TheFlopper," which challenged the passengers to stayupright. "The tumbling bodies and the screamsand laughter supplied the merriment and fun."Judge Cardozo reversed a verdict for the plaintiff,noting "The plaintiff was not seeking a retreat formeditation. Visitors were tumbling about the beltto the merriment of onlookers when he made hischoice to join them. He took the chance of a likefate, with whatever damage to his body mightensue from such a fall. The timorous may stay athome."4. Consider Justice Frankfurter's descriptionof this doctrine, often cited in cases and commentson the doctrine:The phrase "assumption of risk" is anexcellent illustration of the extent towhich uncritical use of words bedevils thelaw. A phrase begins life as a literaryexpression; its felicity leads to its lazyrepetition; and repetition soon establishesit as a legal formula, undiscriminatinglyused to express different and sometimescontradictory ideas. Tiller v. AtlanticCoast Line R.R., 318 U.S. 54, 68 (1963)(FRANKFURTER, J., concurring).5. "Assumption of Risk" actually covers avariety of different reasons for denying (orreducing) the plaintiff's recovery. Can you identifythe distinct reasons in the following three cases?BROWN v. SAN FRANCISCO BALLCLUB222 P.2d 19 (Cal. 1950)Fred B. WOOD, JusticeThis is an appeal by plaintiff from a judgmententered upon a directed verdict for the defendantin an action against San Francisco Ball Club, Inc.,for damages for personal injuries sustained whileattending a professional baseball game at Seals'Stadium, San Francisco.* * *Appellant, a woman of 46 years, attended thegame as the guest of friends, one of whomfurnished and purchased the tickets which werefor seats in an unscreened portion of the stadiumnear the first-base line. The game was in progresswhen they arrived and about an hour later theaccident occurred while the players were changingsides. Appellant was struck by some object andsustained serious injury. Evidence is lackingwhether or not it was a baseball, or from whatdirection it came. However, the motion fordirected verdict appears to have been made, andthe issues discussed by the parties upon thisappeal, upon the assumption that appellant was hitby a baseball, possibly thrown from second to firstbase, touching the first baseman's glove andpassing thence into the stand.Respondent owned and operated the stadiumwhich had a seating capacity of 18,601, dividedinto screened and unscreened areas.Approximately 5,000 seats were behind a screenback of the home plate. The remainder wereunscreened and in two sections behind the firstbaseand third-base lines respectively. Tickets forseats were sold at separate windows, one windowfor each of these three sections, each windowmarked for a particular section. Patrons decidedwhere they would sit, and went to the appropriatewindow for their seats. It is generally true of allthe games held in this stadium that a greatmajority of the patrons are situated in theunscreened sections, because they prefer anunobstructed view.The attendance at this particular game wasapproximately 5,000. There were many vacantseats in each seating area. Most of the spectatorswere seated in the first-base and third-baseunscreened sections, very few in the home-plateSMITH V. BAKER AND SONS

238 5. CONTRIBUTORY FAULTscreened area.* * *It would seem necessarily to follow thatrespondent fully discharged its duty towardappellant, as concerns the risk to her of being hitby thrown or batted baseballs, when it providedscreened seats for all who might reasonably beexpected to request them, in fact many morescreened seats than were requested. Hence, theinjury suffered by her when struck by a thrownball, while voluntarily occupying an unscreenedseat, did not flow from, was not caused by, anyfailure of performance by respondent of any dutyowed to her, and did not give rise to a cause ofaction in her favor against respondent for damagesfor such injury.Appellant seeks to take this case out of theapplication of the rule upon the theory that shewas ignorant of the game of baseball and theattendant risks, hence cannot be said to haveknowingly assumed the risk. The point is not welltaken. Although she had a limited experience withbaseball, she was a mature person in possession ofher faculties with nothing about her to set herapart from other spectators and require of her alower standard of self-protection from obvious,inherent risks than that required of otherspectators. She was, at the time of the accident, 46years of age; had lived in the San Francisco areasince 1926; was about to go to a school fortraining and to have a job as saleswoman in a realestate office;...We conclude that the evidence herein, viewingit most favorably to the appellant, does not takeher outside the application of the rule announcedin the Quin case; that she assumed the risk ofinjury in respect to which she complains; that theinjury was not caused by any negligence upon thepart of the respondent; and that determinationthereof was a proper function of the trial courtupon motion for directed verdict.In the absence of negligence upon the part ofthe respondent, it is unnecessary to consider thequestion of contributory negligence upon the partof the appellant.The judgment is affirmed and the appeal fromthe order denying a new trial is dismissed.Questions and Notes1. The liability of baseball parks is consideredin Ted J. Tierney, Heads Up!: The BaseballFacility Liability Act, 18 N. Ill. U. L. Rev. 601(1998); and David Horton, Rethinking Assumptionof Risk and Sports Spectators, 51 UCLA L. Rev.339 (2003).ALSTON v. BLYTHE88 Wash. App. 26, 943 P.2d 692 (1997)MORGAN, Judge.The dispositive issue in this auto-pedestriancase is whether the trial court erred by giving anassumption-of-risk instruction. Holding that itdid, we reverse and remand for new trial.Portland Avenue is an arterial street inTacoma. Near its intersection with East 29thStreet, it has two northbound lanes, twosouthbound lanes, and a left-turn lane in thecenter.On September 20, 1991, Alston started acrossPortland Avenue on foot. 74 She was walking fromeast to west, at or near East 29th Street. It isagreed she was not in a marked crosswalk, but theparties contest whether she was in an unmarkedcrosswalk.Steven McVay was driving south on PortlandAvenue in the inside (easterly) southbound lane.He was operating a tractor with a flatbed trailer.Seeing Alston as she crossed the northbound lanes,he stopped so she could continue across thesouthbound lanes. Alston alleges he waved heracross the southbound lanes, but he denies theallegation. In any event, Alston crossed in front ofhis truck and stepped into the outside (westerly)southbound lane. At that moment, Michael Blythewas driving his vehicle south in that lane, and hisvehicle struck and injured Alston.74Alston was accompanied by her child, but that fact isnot material here.BROWN V. SAN FRANCISCO BALL CLUB

§ B. ASSUMPTION OF RISK 239* * *Alston sued Blythe, McVay, and McVay'semployer, Kaelin Trucking, alleging negligence.At the close of the evidence, Alston objected tomany of the trial court's instructions, but not to itsinstruction on contributory negligence. Ultimately,the jury decided that neither McVay nor Blythehad been negligent, and Alston filed this appeal.Initially, we discuss whether the trial courterred in giving an assumption-of-risk instruction.Then, even though that issue is dispositive, wediscuss several additional issues likely to recur onretrial. 75Alston contends the trial court erred by givingInstruction 13, which stated:IIt is a defense to an action for personalinjury that the plaintiff impliedly assumed aspecific risk of harm.A person impliedly assumes the risk ofharm, if that person knows of a specific riskassociated with a course of conduct,understands its nature, and voluntarilychooses to accept the risk by engaging in thatconduct. 76Alston objected to this instruction on theground that it was not supported by the evidence,and on the further ground that it could bemisinterpreted to mean that assumption of riskwas a complete bar to recovery. She reiterates thesame objections on appeal.Two of the elements of negligence are dutyand breach. 77 Thus, a plaintiff claiming negligence75See Falk v. Keene Corp., 53 Wash. App. 238, 246,767 P.2d 576, aff'd, 113 Wash.2d 645, 782 P.2d 974(1989).7677Clerk's Papers at 334.Tincani v. Inland Empire Zoological Soc., 124Wash.2d 121, 127-28, 875 P.2d 621 (1994); Hansen v.Friend, 118 Wash.2d 476, 479, 824 P.2d 483 (1992);Mathis v. Ammons, 84 Wash. App. 411, 415-16, 928 P.2d431 (1996), review denied, 132 Wash.2d 1008, 940 P.2d653 (1997); Doherty v. Municipality of Metro. Seattle, 83Wash. App. 464, 469, 921 P.2d 1098 (1996). Otherelements, not in issue here, are causation and damages.Mathis, 84 Wash. App. at 416, 928 P.2d 431.must show that the defendant owed a duty ofreasonable care to the plaintiff, and that thedefendant failed to exercise such care. 78Two of the elements of contributorynegligence are duty and breach. 79 Thus, adefendant claiming contributory negligence mustshow that the plaintiff owed a duty to exercisereasonable care for the plaintiff's own safety, andthat the plaintiff failed to exercise such care. 80The doctrine of assumption of risk has fourfacets. They are (1) express assumption of risk;(2) implied primary assumption of risk; (3)implied reasonable assumption of risk; and (4)implied unreasonable assumption of risk. 81The third and fourth facets, implied78See Geschwind v. Flanagan, 121 Wash.2d 833, 854P.2d 1061 (1993); Schooley v. Pinch's Deli Market, Inc.,80 Wash. App. 862, 874, 912 P.2d 1044, review granted,129 Wash.2d 1025, 922 P.2d 98 (1996); Daly v. Lynch, 24Wash. App. 69, 76, 600 P.2d 592 (1979). As we haveexplained elsewhere, duty in this context involves at leastthree questions: What is the obligated class, what is theprotected class, and what is the standard of care? Breachmirrors duty, and thus also involves three questions: Doesthe defendant belong to the obligated class, does theplaintiff belong to the protected class, and did thedefendant violate the standard of care? Here, we have noneed to consider duty and breach in this much detail. SeeGall v. McDonald Indus., 84 Wash. App. 194, 202, 205,926 P.2d 934 (1996), review denied, 131 Wash.2d 1013,932 P.2d 1256 (1997); Nivens v. 7-11 Hoagy's Corner, 83Wash. App. 33, 41, 47, 920 P.2d 241 (1996), reviewgranted, 131 Wash.2d 1005, 932 P.2d 645 (1997);Schooley, 80 Wash. App. at 866, 874, 912 P.2d 1044.79See Geschwind, 121 Wash.2d at 838, 854 P.2d 1061;Seattle First Nat. Bank v. Shoreline Concrete Co., 91Wash.2d 230, 238, 588 P.2d 1308 (1978). Anotherelement, not in issue here, is that the plaintiff's breach ofduty be a cause of plaintiff's own damages. Price v. KitsapTransit, 70 Wash. App. 748, 756, 856 P.2d 384 (1993),aff'd, 125 Wash.2d 456, 886 P.2d 556 (1994); Alvarez v.Keyes, 76 Wash. App. 741, 744, 887 P.2d 496 (1995). Seealso Grobe v. Valley Garbage Serv. Inc., 87 Wash.2d 217,231-232, 551 P.2d 748 (1976).80Geschwind, 121 Wash.2d at 838, 854 P.2d 1061;Alvarez, 76 Wash. App. at 744, 887 P.2d 496.81Tincani, 124 Wash.2d at 143, 875 P.2d 621; Scott v.Pacific West Mt. Resort, 119 Wash.2d 484, 496, 834 P.2d6 (1992); Kirk v. Washington State Univ., 109 Wash.2d448, 453, 746 P.2d 285 (1987); Shorter v. Drury, 103Wash.2d 645, 655, 695 P.2d 116 (1985); Leyendecker v.Cousins, 53 Wash. App. 769, 773, 770 P.2d 675 (1989).ALSTON V. BLYTHE

240 5. CONTRIBUTORY FAULTreasonable and implied unreasonable assumptionof risk, are nothing more than alternative namesfor contributory negligence. As the SupremeCourt has said, they "involve the plaintiff'svoluntary choice to encounter a risk created by thedefendant's negligence," and they "retain noindependent significance from contributorynegligence after the adoption of comparativenegligence." 82 In sum, they bear on the plaintiff'sduty to exercise ordinary care for his or her ownsafety.The first and second facets, expressassumption of risk and implied primaryassumption of risk, bear not on the plaintiff's dutyto exercise ordinary care for his or her own safety,but rather on the defendant's duty to exerciseordinary care for the safety of others. Both facetsraise the same question: Did the plaintiff consent,before the accident or injury, to the negation of aduty that the defendant would otherwise haveowed to the plaintiff? 83 If the plaintiff did soconsent, "the defendant does not have the duty,there can be no breach and hence nonegligence." 84 Thus, when either facet applies, itbars any recovery based on the duty that wasnegated. 85Although the first and second facets involvethe same idea--the plaintiff's consent to negate aduty the defendant would otherwise have owed tothe plaintiff--they differ with respect to the way in82Scott, 119 Wash.2d at 497, 834 P.2d 6; see alsoLeyendecker, 53 Wash. App. at 774-75, 770 P.2d 675.83Scott, 119 Wash.2d at 498, 834 P.2d 6; Kirk, 109Wash.2d at 453-54, 746 P.2d 285; Dorr v. Big CreekWood Products, Inc., 84 Wash. App. 420, 426-27, 927P.2d 1148 (1996).84Scott, 119 Wash.2d at 497, 834 P.2d 6; see alsoTincani, 124 Wash.2d at 143, 875 P.2d 621 (impliedprimary assumption of risk "is really a principle of no duty,or no negligence, and so denies the existence of theunderlying action"); Dorr, 84 Wash. App. at 427, 927P.2d 1148 (implied primary assumption of risk "is only thecounterpart of the defendant's lack of duty to protect theplaintiff from that risk"); Leyendecker, 53 Wash. App. at773, 770 P.2d 675.which the plaintiff manifests consent. 86 Withexpress assumption of risk, the plaintiff states inso many words that he or she consents to relievethe defendant of a duty the defendant wouldotherwise have. With implied primary assumptionof risk, the plaintiff engages in other kinds ofconduct, from which consent is then implied. 87Consent is an issue of fact for the jury, exceptwhen the evidence is such that reasonable mindscould not differ. 88Because the plaintiff's consent lies at the heartof both express and implied primary assumptionof risk, "[i]t is important to carefully define thescope" of that consent. 89 This is done byidentifying the duties the defendant would havehad in the absence of the doctrine of assumptionof risk, and then segregating those duties into (a)those (if any) which the plaintiff consented tonegate, and (b) those (if any) which the defendantretained. 90 Like consent itself, the scope ofconsent is an issue of fact for the jury, unless theevidence is such that reasonable minds could notdiffer. 91These principles mean, among other things,that a trial court may instruct on both contributorynegligence and assumption of risk if the evidenceproduced at trial is sufficient to support twodistinct findings: (a) that the plaintiff consented to86Kirk, 109 Wash.2d at 453, 746 P.2d 285;Leyendecker, 53 Wash. App. at 773, 770 P.2d 675.87Scott, 119 Wash.2d at 496-97, 834 P.2d 6; Kirk, 109Wash.2d at 453, 746 P.2d 285; Dorr, 84 Wash. App. at427, 927 P.2d 1148 ("Those who choose to participate insports or other amusements likely to cause harm to theparticipant, for example, impliedly consent in advance toexcuse the defendant from any duty to protect theparticipant from being injured by the risks inherent in suchactivity"); cf. Foster v. Carter, 49 Wash. App. 340, 346,742 P.2d 1257 (1987) (plaintiff elected to participate in BBgun war).8889Dorr, 84 Wash. App. at 431, 927 P.2d 1148.Scott, 119 Wash.2d at 497, 834 P.2d 6; see also Kirk,109 Wash.2d at 456, 746 P.2d 285 ("plaintiff's assumptionof certain known risks in a sport or recreational activitydoes not preclude recovery for injuries resulting from risksnot known or not voluntarily encountered.")85Scott, 119 Wash.2d at 496-98, 834 P.2d 6; Dorr, 84Wash. App. at 425, 927 P.2d 1148; Leyendecker, 53Wash. App. at 773, 770 P.2d 675.9091See Scott, 119 Wash.2d at 497, 834 P.2d 6.See Dorr, 84 Wash. App. at 431, 927 P.2d 1148.ALSTON V. BLYTHE

§ B. ASSUMPTION OF RISK 241relieve the defendant of one or more duties thatthe defendant would otherwise have owed to theplaintiff, and (b) that the plaintiff failed to exerciseordinary care for his or her own safety. 92 In mostsituations, however, the evidence will support onlythe second of these findings, and "an instructionon contributory negligence is all that is necessaryor appropriate." 93The record in this case contains no evidencethat Alston expressly or impliedly consented torelieve either McVay or Blythe of the duty ofordinary care that he owed to her as a matter oflaw. She merely tried to cross the street in a waythat may or may not have involved contributorynegligence, depending on whose testimony thejury chooses to believe. The evidence supportedan instruction on contributory negligence, but notan instruction on assumption of risk, andInstruction 13 was erroneous.The defendants argue that Instruction 13 washarmless, but we do not agree. Instruction 13stated that the defendants had a "defense" (and, byimplication, Alston could not recover) if Alstonknew of a specific risk associated with crossingthe street, understood that risk, and voluntarilychose to cross anyway. Given that the evidenceshowed nothing more than arguable contributorynegligence, this contravened Washington'scomparative negligence scheme, and it may wellhave been the reason the jury rendered a defenseverdict. There is a reasonable likelihood thatInstruction 13 skewed the verdict, and a new trialis required. 94* * *92Dorr, 84 Wash. App. at 426, 927 P.2d 1148.93Dorr, 84 Wash. App. at 426, 927 P.2d 1148. Inpassing, we observe that Division One has expressedskepticism concerning the propriety of some of theWashington Pattern Jury Instructions (WPI) on assumptionof risk. Dorr, 84 Wash. App. at 430-31, 927 P.2d 1148.Sharing that skepticism, we additionally suggest that theterm "assumption of risk" is needlessly confusing, at leastwhen used in jury instructions. When assumption of risk isproperly an issue for the jury, the jury should simply beasked to decide whether the plaintiff consented to relievethe defendant of a duty the defendant would otherwisehave owed to the plaintiff.94See Hill v. GTE Directories Sales Corp., 71 Wash.App. 132, 144, 856 P.2d 746 (1993) (error not prejudicial"unless it is likely the outcome would have been differentwithout it").ALSTON V. BLYTHE

242 5. CONTRIBUTORY FAULTKIRK v. WASHINGTON STATEUNIVERSITY109 Wash. 2d 448, 746 P.2d 285 (1987)DOLLIVER, JusticeDefendants Washington State University(WSU), its Board of Regents and the AssociatedStudents of WSU appeal from a judgmentsubstantially against them in a personal injuryaction brought by plaintiff Kathleen Kirk. Theplaintiff cross-appeals certain portions of thejudgment. We affirm.In the spring of 1978, Kathleen Kirk, a20-year-old student at WSU, became a member ofits cheerleading team, known as the WSU YellSquad. The team received funding from both theathletic department and the Associated Students ofWSU. The defendants conceded the team was auniversity-approved student activity. Thecheerleaders performed other functions besidesattending the games: they attended alumnifunctions, appeared at promotional functions andparades, and helped in fundraising for WSU. Theteam also practiced daily. The recruiters told thecheerleaders they "were in public relations."The team had a faculty advisor, WilliamDavis, from 1971 to 1978. Davis had activelysupervised the team and emphasized safety.Sometime in the spring of 1978, Davis wastransferred to a different position and replaced byanother faculty member who did not attend thecheerleader practices.In the fall of 1978, the team attempted to usethe mat room, where they had practicedpreviously, but were told not to use that room. Asa result, the team conducted its practices on theastroturf surface of Martin Stadium. Other facultymembers were aware the astroturf was harder andcaused more injuries than nonartificial turf. Thecheerleaders were given no warning of the dangersof practicing on the astroturf.Kirk was injured on October 18, 1978, duringa cheerleading practice on the astroturf inpreparation for an upcoming game. At the time shewas injured the team was practicing shoulderstands. The end result of the maneuver was tohave each female cheerleader standing on theshoulders of a male cheerleader. The method ofreaching the stand had recently been modified inorder to arrive at the completed stand morequickly. Teams in earlier years had performed thestand in the manner shown in pamphlets madeavailable to them, the female placing one foot onthe squatting male's upper leg, then one foot on hisshoulder, then bringing the other foot up to hisother shoulder. These pamphlets had not beenmade known to the 1978 team. In the modifiedversion being used at the time of Kirk's injury, thefemale would stand behind the male, take hishands and "pop up", pulled up by the male, soboth her feet landed on his shoulders at the sametime. The male's hands would transferimmediately to the female's lower calves or ankleswhile she steadied herself.Kirk's feet landed on the shoulders of the malecheerleader Mark Winger, but her body tippedbackward. Winger had taken hold of her rightabove her ankles. Kirk stated she told him to letgo, but he held her as she fell backward. Shelanded on the astroturf with her full weight on herleft elbow, shattering all three bones in the elbow.Her left ankle was also fractured.Shortly after Kirk's injury, WSU hired a newprogram supervisor with 10 years' experience incheerleading to coach the team.Kirk's injury to her elbow is permanent. Shehad surgery on the elbow due to the fractures, andone of the bones in the forearm is no longerconnected to the joint. She will have continuingpain and arthritis in the area. She also became verydepressed and suicidal after the injury and spentover a month in a psychiatric ward. There wassome evidence Kirk had been depressed prior tothe injury.Kirk brought this action against WSU, itsBoard of Regents, and the Associated Students ofWSU. The jury's verdict found the defendants hadbeen negligent, and the negligence proximatelycaused Kirk's injuries and damages. The juryspecifically found the defendants negligent forfailure to provide adequate supervision, training,and coaching of the practices; failure to providesafety padding for the outdoor practices; failure towarn regarding the hardness of the astroturfsurface; and failure to provide adequate literatureregarding the proper and safe method ofperforming partner (double) stunts. The jury alsoKIRK V. WASHINGTON STATE UNIVERSITY

§ B. ASSUMPTION OF RISK 243found Kirk's own acts or omissions were theproximate cause of 27 percent of her injuries andreduced her damages by that amount. The totaljudgment for Kirk, including statutory fees andcosts, was $353,791.Both parties appeal various elements of thejudgment, and this court granted direct review.IThe defendants argue the trial court erred inrefusing to adopt their proposed instructionsregarding assumption of risk. They assert theassumption of risk doctrine should act as acomplete bar to recovery and that the facts of thiscase present substantial evidence to support theproposed instructions to the jury on this issue.The defendants' proposed instructions 12 and13 read:If plaintiff assumed the risk of harmfrom attempting to perform a shoulderstunt she may not recover damages for aninjury resulting therefrom.In order for plaintiff to have assumedsuch risk, she must have had actualknowledge of the particular danger and anappreciation of the risk involved and themagnitude thereof, and must thereafterhave voluntarily assumed such risk.For a person to act voluntarily hemust have freedom of choice. Thisfreedom of choice must come fromcircumstances that provide him areasonable opportunity, without violatingany legal or moral duty, to safely refuse toexpose himself to the danger in question.In determining whether the plaintiffassumed such risk, you may consider hermaturity, intelligence, experience andcapacity, along with all the othersurrounding circumstances as shown bythe evidence.The basis of assumption of risk is theplaintiff's consent to assume the risk and look outfor herself. Therefore she will not be found, in theabsence of an express agreement, to assume anyrisk unless she had knowledge of its potentialdanger and the risk is generally recognized asdangerous. This means that she must not only beaware of the facts that created the danger but alsomust appreciate the nature, character and extentwhich make it unreasonable. Thus even though theplaintiff might be aware of a potential dangerarising from an activity she is engaged in it mayappear to her to be so slight as to be negligible. Insuch a case the plaintiff does not assume the riskand it is not a proper defense to the action.Kirk in a cross appeal contests instruction 6given by the court which allowed the jury toreduce Kirk's damages for participating in thedecision to perform the stunt in question,participating in the decision to practice on theastroturf, or "[v]oluntarily participating in anactivity which she knew to be dangerous and inwhich she knew she could be hurt by falling."The issues raised by the parties require thiscourt to review the status of assumption of risk inWashington. The law in effect at the time of theevents leading to this action was the 1973comparative negligence statute, R.C.W. 4.22.010,Laws of 1973, 1st Ex. Sess., ch. 138, § 1, p. 949.The statute has since been superseded by theadoption of comparative fault in 1981. Laws of1981, ch. 27.The position of the assumption of the riskdoctrine after the adoption of comparativenegligence has been the subject of extensivediscussion by various courts, including ours, aswell as numerous commentators. See generally W.KEETON, TORTS § 68 (5th ed. 1984); V.SCHWARTZ, COMPARATIVE NEGLIGENCE 153-180(2d ed. 1986); 2 F. HARPER & F. JAMES, TORTS1162-92 (1956 & Supp. 1968); Annot., Effect ofAdoption of Comparative Negligence Rules onAssumption of Risk, 16 A.L.R. 4th 700 (1982);Shorter v. Drury, 103 Wash. 2d 645, 695 P.2d 116,cert. denied, 474 U.S. 827, 106 S. Ct. 86, 88 L.Ed. 2d 70 (1985); Lyons v. Redding Constr. Co., 83Wash. 2d 86, 515 P.2d 821 (1973). Thecommentators have agreed the general rubric"assumption of risk" has not signified a singledoctrine but rather has been applied to a cluster ofdifferent concepts. Tiller v. Atlantic Coast LineR.R. Co., 318 U.S. 54, 68, 63 S. Ct. 444, 452, 87L. Ed. 610, 143 A.L.R. 967 (1943)(FRANKFURTER, J., concurring); W. KEETON, at496; F. HARPER & F. JAMES, at 1162. Thecommentators have identified and labeled fourseparate concepts to which "assumption of risk"has been applied in the past: express, impliedprimary, implied reasonable, and impliedunreasonable. We recognized this classificationscheme in Shorter, 103 Wash. 2d at 655, 695 P.2d116, and will begin with this framework, asexplained below, for our current discussion ofthese issues.KIRK V. WASHINGTON STATE UNIVERSITY

244 5. CONTRIBUTORY FAULT[The court proceeded to discuss fourcategories of assumption of risk: express,implied primary, implied reasonable, andimplied unreasonable. In this case, thecourt deemed the plaintiff’s assumption ofrisk as implied reasonable, and tailoredtheir analysis accordingly. Due to the factthat not all jurisdictions have adopted thisclassification system, the court’s discussionof each category’s nuances may only lead toconfusion, and has therefore been deleted.For the purposes of understandingassumption of risk, the important thing is tobe able to understand that the theory, asapplied under a specific set ofcircumstances, may operate to reduce aplaintiff’s damages award or act as acomplete bar to recovery.]With this basic understanding of the existinglaw of assumption of risk, we turn to thearguments of the parties in this case. Thedefendants contend they were entitled to have thejury instructed on assumption of risk as a completebar to any recovery by the plaintiff because theinjury occurred during the plaintiff's participationin an athletic activity. We disagree. The appellantmisinterprets the nature of the assumption of therisk concept and our earlier opinions on thesubject. Assumption of the risk may act to limitrecovery but only to the extent the plaintiff'sdamages resulted from the specific risks known tothe plaintiff and voluntarily encountered. To theextent a plaintiff's injuries resulted from otherrisks, created by the defendant, the defendantremains liable for that portion.The use of assumption of risk in this mannercan be seen in Shorter v. Drury, supra. The courtin Shorter did not allow express or impliedprimary assumption of risk to act as a completebar to recovery by the plaintiff where thedefendant's negligence was also a cause of thedamages to the plaintiff. Shorter, at 657, 695 P.2d116. The court instead treated the assumption ofthe risk as a damage-reducing factor, attributing aportion of the causation to the plaintiff'sassumption of the risk and a portion to thedefendant's negligence.In Shorter, a woman had in writing expresslyassumed the risk of her refusal, on religiousgrounds, to accept any blood transfusions during amedical procedure involving the risk of bleedingeven if performed without negligence by thedoctor. The doctor did, however, negligentlylacerate her during the procedure. She continuedto refuse transfusions and bled to death. The trialcourt instructed the jury:If you find that Mr. or Mrs. Shorterassumed a risk which was a proximatecause of Mrs. Shorter's death, you mustdetermine the degree of such conduct,expressed as a percentage, attributable toMr. and Mrs. Shorter.... Using 100% as tothe total combined conduct of the parties(negligence and assumption of the risk)which contributed to the damage to theplaintiff, you must determine whatpercentage of such conduct is attributableto Mr. or Mrs. Shorter. Shorter, at 653-54,695 P.2d 116.Thus, the Shorter court treated the plaintiff'sassumption of the risk as a damage-reducingfactor rather than a complete bar in cases wherethe defendant's negligence caused some portion ofthe plaintiff's damages. See also Lyons, 83 Wash.2d at 96, 515 P.2d 821 ("the calculus of balancingthe relative measurements of fault inevitablyincorporates the degree to which the plaintiffassumed the risk").We find support for this approach to the issueof assumption of risk in the language of ProfessorSchwartz:A rigorous application of impliedassumption of risk as an absolute defensecould serve to undermine seriously thegeneral purpose of a comparativenegligence statute to apportion damageson the basis of fault. This is perhaps thereason that every commentator who hasaddressed himself to this specific problemhas agreed that plaintiff should not havehis claim barred if he has impliedlyassumed the risk, but rather that thisconduct should be considered inapportioning damages under the statute.(Footnotes omitted.) V. SCHWARTZ,COMPARATIVE NEGLIGENCE § 9.5, at 180(2d ed. 1986).KIRK V. WASHINGTON STATE UNIVERSITY

§ B. ASSUMPTION OF RISK 245He notes only one jurisdiction "vigorouslyapplies" assumption of risk as an absolute defenseafter the adoption of comparative negligence. V.SCHWARTZ, at 180 n.78.We also find support for our position in theopinions of numerous courts, including our own,holding a plaintiff's assumption of certain knownrisks in a sport or recreational activity does notpreclude recovery for injuries resulting from risksnot known or not voluntarily encountered. Reganv. Seattle, 76 Wash. 2d 501, 458 P.2d 12 (1969)(driver of "go-cart" on race course does notassume unknown risk of spilled water on thecourse); Wood v. Postelthwaite, 6 Wash. App. 885,496 P.2d 988 (1972), aff'd, 82 Wash. 2d 387, 510P.2d 1109 (1973) (golfer does not assumeunknown, unforeseen risk of being hit by golf balldue to inadequate warning but may assume otherknown risks inherent in the game); Miller v.United States, 597 F.2d 614 (7th Cir. 1979)(swimmer in public lake did not assume risk ofdiving off pier into too shallow water); Segovianov. Housing Auth., 143 Cal. App. 3d 162, 191 Cal.Rptr. 578 (1983) (participant in recreational flagfootball game did not voluntarily assume risk forinjuries inflicted by another player in violation ofthe rules); Leahy v. School Bd., 450 So. 2d 883(Fla. Dist. Ct. App. 1984) (high school footballplayer injured during a drill did not assume risksof improper supervision and inadequate safetyequipment); Rieger v. Zackoski, 321 N.W.2d 16(Minn. 1982) (spectator who walked onto racewayafter auto race did not assume all risks ofunauthorized vehicles racing around the track;defendant 32 percent negligent); Shurley v.Hoskins, 271 So. 2d 439 (Miss. 1973) (hunter didnot assume risk of being negligently shot bycompanion); Meistrich v. Casino ArenaAttractions, Inc., 31 N.J. 44, 155 A.2d 90, 82A.L.R.2d 1208 (1959) (skater did not assume risksof unusually hard and slippery ice at defendant'srink, even though known); Rutter v. NortheasternBeaver Cy. Sch. Dist., 496 Pa. 590, 437 A.2d 1198(1981) (high school football player did notvoluntarily assume all risks of playing "jungle"football at coaches' request without equipment);Meese v. Brigham Young Univ., 639 P.2d 720(Utah 1981) (student beginner skier did notassume unknown risk of improperly adjustedbindings fitted by defendant; defendant 75 percentresponsible for plaintiff's injuries); Sunday v.Stratton Corp., 136 Vt. 293, 390 A.2d 398 (1978)(skier did not assume unknown risk of becomingentangled in brush concealed by the snow).In the present case, the trial court did not errin rejecting proposed instructions regardingassumption of the risk as a complete bar torecovery. Although express and implied primaryassumption of the risk remain valid defenses, theydo not provide the total defense claimed by thedefendant. Implied unreasonable assumption ofthe risk has never been considered a total bar torecovery in comparative negligence jurisdictions.Kirk in her cross appeal argues the trial courterred in allowing the jury to consider assumptionof the risk in any manner, even as adamage-reducing factor. Kirk argues even if shedid assume certain risks that contributed to herinjuries, her conduct in doing so was reasonableand should not be used to reduce her damages.This contention requires us to determine the statusof implied reasonable assumption of the risk, thelast remaining category. Its status had been leftundecided by our earlier opinions.One commentator has proposed impliedreasonable assumption of risk should not beallowed to reduce a plaintiff's damages in any way.W. KEETON, at 497-98. There are severalweaknesses in this approach, however, which leadus not to adopt it. First, Professor Keeton proposedthis treatment of implied reasonable assumption ofrisk in part to counter the harsh effects of theabsolute bar to recovery approach for express andimplied primary assumption of risk. See W.KEETON, at 497 (proposed approach preventsimplied reasonable assumption of risk from actingas "an absolute bar" (italics ours)). Since we havenot adopted that harsh approach, we see no reasonto adopt this exception to it. Second, othercommentators have not favored providing specialtreatment for this rather elusively definedcategory. See V. SCHWARTZ, at 156-57, 180;RESTATEMENT (SECOND) OF TORTS § 496C,comment g, at 572 (1965). We favor the reasoningof Professor Schwartz allowing impliedreasonable assumption of risk to be given to thejury as a factor for consideration:The reasoning ... that reasonable impliedassumption of risk should not serve todiminish the amount of plaintiff's recovery... is seriously flawed. When a person'sconduct under the facts is truly voluntaryand when he knows of the specific risk heis to encounter, this is a form ofresponsibility or fault that the jury shouldKIRK V. WASHINGTON STATE UNIVERSITY

246 5. CONTRIBUTORY FAULTevaluate. Those who argue that the "jurycannot do this" have not met too manyjurors.... When a plaintiff engages inclassic assumption of risk conduct, he is inpart responsible for his injury. V.SCHWARTZ, at 180.We do note this form of assumption of the riskis still subject to the voluntariness elementassumption of the risk; even though the plaintiff'sconduct may be reasonable it must still be shownto be voluntary in order to warrant an instructionof assumption of the risk. See Segoviano v.Housing Auth., 143 Cal. App. 3d 162, 174, 191Cal. Rptr. 578, 587 (1983) ("[u]nless the plaintiffhas reasonable alternatives available to him, hecannot be said to have voluntarily assumed therisk").The trial court below therefore did not err inallowing the jury to consider the conduct of theplaintiff, including implied reasonable assumptionof risk, in reaching its findings reducing thedamages.* * *Questions and Notes1. For a proposal to apply assumption of risknarrowly to those cases involving abnormallydangerous activities by plaintiffs, see DeWolf andHander, Assumption of Risk and AbnormallyDangerous Activities: A Proposal, 51 Mont. L.Rev. 161 (Winter 1990).KIRK V. WASHINGTON STATE UNIVERSITY

§ B. ASSUMPTION OF RISK 247Chapter 6Multiple Tortfeasors§ A. Overview and StatutoryExcerptsIntroductory Note. The application ofcomparative fault principles is complicatedenough when the plaintiff sues only onedefendant. However, it is quite common (probablymore common than not, particularly in caseswhere large dollar amounts are at stake) for theplaintiff to sue multiple defendants. In ChapterTwo we looked at mass tort cases (e.g., the DEScases) in terms of the causation problems. Evenwhere causation questions can be answeredsatisfactorily, there are numerous problemsassociated with allocating liability among multipledefendants, particularly when one or more of thedefendants is immune, or has settled, or isinsolvent, or is beyond the jurisdiction of thecourt. Although full coverage of these issuescannot be hoped for, an appreciation of some ofthe problems is essential for an understanding ofmodern tort law.This chapter focuses heavily on using statutesto determine how joint tortfeasors are to betreated. The discussion begins with excerpts fromthree different statutes: two are actual statutes,and the third is a model statute drafted by theAmerican Law Institute.Idaho Code (1990 Supplement)§§ 6-801 to 6-806§ 6-801. Comparative negligence orcomparative responsibility - Effect ofcontributory negligence.Contributory negligence or comparativeresponsibility shall not bar recovery in an actionby any person or his legal representative torecover damages for negligence, gross negligenceor comparative responsibility resulting in death orin injury to person or property, if such negligenceor comparative responsibility was not as great asthe negligence, gross negligence or comparativeresponsibility of the person against whomrecovery is sought, but any damages allowed shallbe diminished in the proportion to the amount ofnegligence or comparative responsibilityattributable to the person recovering. Nothingcontained herein shall create any new legal theory,cause of action, or legal defense.§ 6-802. Verdict giving percentage ofnegligence or comparative responsibilityattributable to each party.The court may, and when requested by anyparty shall, direct the jury to find separate specialverdicts determining the amount of damages andthe percentage of negligence or comparativeresponsibility attributable to each party; and thecourt shall then reduce the amount of suchdamages in proportion to the amount ofnegligence or comparative responsibilityattributable to the person recovering. Nothingcontained herein shall create any new legal theory,cause of action, or legal defense.§ 6-803. Contribution among jointtortfeasors - Declaration of right -Exception - Limited joint and severalliability.(1) The right of contribution exists amongjoint tortfeasors, but a joint tortfeasor is notentitled to a money judgment for contribution untilhe has by payment discharged the commonliability or has paid more than his pro rata sharethereof.(2) A joint tortfeasor who enters into asettlement with the injured person is not entitled torecover contribution from another joint tortfeasorwhose liability to the injured person is notOREGON REVISED STATUTES

extinguished by the settlement.(3) The common law doctrine of joint andseveral liability is hereby limited to causes ofaction listed in subsections (5), (6) and (7) of thissection. In any action in which the trier of factattributes the percentage of negligence orcomparative responsibility to persons listed on aspecial verdict, the court shall enter a separatejudgment against each party whose negligence orcomparative responsibility exceeds the negligenceor comparative responsibility attributed to theperson recovering. The negligence or comparativeresponsibility of each such party is to be comparedindividually to the negligence or comparativeresponsibility of the person recovering. Judgmentagainst each such party shall be entered in anamount equal to each party's proportionate shareof the total damages awarded.(4) As used herein, "joint tortfeasor" meansone (1) of two (2) or more persons jointly orseverally liable in tort for the same injury toperson or property, whether or not judgment hasbeen recovered against all or some of them.(5) A party shall be jointly and severally liablefor the fault of another person or entity or forpayment of the proportionate share of anotherparty where they were acting in concert or when aperson was acting as an agent or servant ofanother party.(6) Any cause of action arising out ofviolation of any state or federal law or regulationrelating to hazardous or toxic waste or substancesor solid waste disposal sites.(7) Any cause of action arising from themanufacture of any medical devices orpharmaceutical products.§ 6-804. Common law liabilitiespreserved.Nothing in this act affects: (1) The commonlaw liability of the several joint tortfeasors to havejudgment recovered and payment made from themindividually by the injured person for the wholeinjury shall be limited to causes of action listed insection 6-803, Idaho Code. However, the recoveryof a judgment by the injured person against one(1) joint tortfeasor does not discharge the otherjoint tortfeasors.§ 6-805. Effect of release of onetortfeasor on liability of others.(1) A release by the injured person of one (1)joint tortfeasor, whether before or after judgment,does not discharge the other tortfeasors unless therelease so provides, but reduces the claim againstthe other tortfeasors in the amount of theconsideration paid for the release, or in anyamount or proportion by which the releaseprovides that the total claim shall be reduced, ifsuch amount or proportion is greater than theconsideration paid.(2) A release by the injured person of one (1)or more tortfeasors who are not jointly andseverally liable to the injured person, whetherbefore or after judgment, does not dischargeanother tortfeasor or reduce the claim againstanother tortfeasor unless the release so providesand the negligence or comparative responsibilityof the tortfeasor receiving the release is presentedto and considered by the finder of fact, whether ornot the finder of fact apportions responsibility tothe tortfeasor receiving the release.§ 6-806. Effect of release of onetortfeasor on his liability for contribution toothers - Limits on application of section.A release by the injured person of one (1)joint tortfeasor does not relieve him from liabilityto make contribution to another joint tortfeasorunless the release is given before the right of theother tortfeasor to secure a money judgment forcontribution has accrued, and provides for areduction, to the extent of the pro rata share of thereleased tortfeasor, of the injured person'sdamages recoverable against all the othertortfeasors. This section shall apply only if theissue of proportionate fault is litigated betweenjoint tortfeasors in the same action.Oregon Revised StatutesTitle 18 (1989)§ 18.455. Covenant not to sue; effect;notice.OREGON REVISED STATUTES

§ A. OVERVIEW AND STATUTORY EXCERPTS 249(1) When a covenant not to sue or not toenforce judgment is given in good faith to one oftwo or more persons liable in tort for the sameinjury or the same wrongful death or claimed to beliable in tort for the same injury or the samewrongful death:(a) It does not discharge any of the othertortfeasors from liability for the injury orwrongful death unless its terms so provide;but the claimant's claim against all otherpersons specified in ORS 18.470 (2) for theinjury or wrongful death is reduced by theshare of the obligation of the tortfeasor who isgiven the covenant, as determined under ORS18.480 and 18.485; and(b) It discharges the tortfeasor to whom itis given from all liability for contribution toany other tortfeasor.(2) When a covenant described in subsection(1) of this section is given, the claimant shall givenotice of all of the terms of the covenant to allpersons against whom the claimant makes claims.§ 18.470. Contributory negligence notbar to recovery; comparative negligencestandard; third party complaints.(1) Contributory negligence shall not barrecovery in an action by any person or the legalrepresentative of the person to recover damagesfor death or injury to person or property if the faultattributable to the claimant was not greater thanthe combined fault of all persons specified insubsection (2) of this section, but any damagesallowed shall be diminished in the proportion tothe percentage of fault attributable to the claimant.This section is not intended to create or abolishany defense.(2) The trier of fact shall compare the fault ofthe claimant with the fault of any party againstwhom recovery is sought, the fault of third partydefendants who are liable in tort to the claimant,and the fault of any person with whom theclaimant has settled. The failure of a claimant tomake a direct claim against a third party defendantdoes not affect the requirement that the fault of thethird party defendant be considered by the trier offact under this subsection. Except for persons whohave settled with the claimant, there shall be nocomparison of fault with any person:(a) Who is immune from liability to theclaimant;(b) Who is not subject to the jurisdictionof the court; or(c) Who is not subject to action becausethe claim is barred by a statute of limitation orstatute of ultimate repose.(3) A defendant who files a third partycomplaint against a person alleged to be at fault inthe matter, or who alleges that a person who hassettled with the claimant is at fault in the matter,has the burden of proof in establishing:(a) The fault of the third party defendantor the fault of the person who settled with theclaimant; and(b) That the fault of the third partydefendant or the person who settled with theclaimant was a contributing cause to theinjury or death under the law applicable in thematter.(4) Any party to an action may seek toestablish that the fault of a person should not beconsidered by the trier of fact by reason that theperson does not meet the criteria established bysubsection (2) of this section for the considerationof fault by the trier of fact.(5) This section does not prevent a party fromalleging that the party was not at fault in thematter because the injury or death was the soleand exclusive fault of a person who is not a partyin the matter.§ 18.475. Doctrines of last clear chanceand implied assumption of risk abolished.(1) The doctrine of last clear chance isabolished.(2) The doctrine of implied assumption of therisk is abolished.§ 18.480. Special questions to trier offact; jury not to be informed of settlement.(1) When requested by any party the trier offact shall answer special questions indicating:OREGON REVISED STATUTES

250 6. MULTIPLE TORTFEASORS(a) The amount of damages to which aparty seeking recovery would be entitled,assuming that party not to be at fault.(b) The degree of fault of each personspecified in ORS 18.470 (2). The degree ofeach person's fault so determined shall beexpressed as a percentage of the total faultattributable to all persons considered by thetrier of fact pursuant to ORS 18.470.(2) A jury shall be informed of the legal effectof its answer to the questions listed in subsection(1) of this section.(3) The jury shall not be informed of anysettlement made by the claimant for damagesarising out of the injury or death that is the subjectof the action.(4) For the purposes of subsection (1) of thissection, the court may order that two or morepersons be considered a single person for thepurpose of determining the degree of fault of thepersons specified in ORS 18.470 (2).§ 18.485. Liability of defendantsseveral only; determination of defendants'shares of monetary obligation; reallocationof uncollectible obligation; parties exemptfrom reallocation.(1) Except as otherwise provided in thissection, in any civil action arising out of bodilyinjury, death or property damage, including claimsfor emotional injury or distress, loss of care,comfort, companionship and society, and loss ofconsortium, the liability of each defendant fordamages awarded to plaintiff shall be several onlyand shall not be joint.(2) In any action described in subsection (1)of this section, the court shall determine the awardof damages to each claimant in accordance withthe percentages of fault determined by the trier offact under ORS 18.480 and shall enter judgmentagainst each party determined to be liable. Thecourt shall enter a judgment in favor of theplaintiff against any third party defendant who isfound to be liable in any degree, even if theplaintiff did not make a direct claim against thethird party defendant. The several liability of eachdefendant and third party defendant shall be setout separately in the judgment, based on thepercentages of fault determined by the trier of factunder ORS 18.480. The court shall calculate andstate in the judgment a monetary amountreflecting the share of the obligation of eachperson specified in ORS 18.470 (2). Each person'sshare of the obligation shall be equal to the totalamount of the damages found by the trier of fact,with no reduction for amounts paid in settlementof the claim or by way of contribution, multipliedby the percentage of fault determined for theperson by the trier of fact under ORS 18.480.(3) Upon motion made not later than one yearafter judgment has become final by lapse of timefor appeal or after appellate review, the court shalldetermine whether all or part of a party's share ofthe obligation determined under subsection (2) ofthis section is uncollectible. If the courtdetermines that all or part of any party's share ofthe obligation is uncollectible, the court shallreallocate any uncollectible share among the otherparties. The reallocation shall be made on the basisof each party's respective percentage of faultdetermined by the trier of fact under ORS 18.480.The claimant's share of the reallocation shall bebased on any percentage of fault determined to beattributable to the claimant by the trier of factunder ORS 18.480, plus any percentage of faultattributable to a person who has settled with theclaimant. Reallocation of obligations under thissubsection does not affect any right to contributionfrom the party whose share of the obligation isdetermined to be uncollectible. Unless the partyhas entered into a covenant not to sue or not toenforce a judgment with the claimant, reallocationunder this subsection does not affect continuingliability on the judgment to the claimant by theparty whose share of the obligation is determinedto be uncollectible.(4) Notwithstanding subsection (3) of thissection, a party's share of the obligation to aclaimant may not be increased by reason ofreallocation under subsection (3) of this section if:(a) The percentage of fault of the claimant isequal to or greater than the percentage of fault ofthe party as determined by the trier of fact underORS 18.480; or(b) The percentage of fault of the party is25 percent or less as determined by the trier offact under ORS 18.480.OREGON REVISED STATUTES

§ A. OVERVIEW AND STATUTORY EXCERPTS 251(5) If any party's share of the obligation to aclaimant is not increased by reason of theapplication of subsection (4) of this section, theamount of that party's share of the reallocationshall be considered uncollectible and shall bereallocated among all other parties who are notsubject to subsection (4) of this section, includingthe claimant, in the same manner as otherwiseprovided for reallocation under subsection (3) ofthis section.(6) This section does not apply to:(a) A civil action resulting from theviolation of a standard established by Oregonor federal statute, rule or regulation for thespill, release or disposal of any hazardouswaste, as defined in ORS 466.005, hazardoussubstance, as defined in ORS 453.005 orradioactive waste, as defined in ORS 469.300.(b) A civil action resulting from theviolation of Oregon or federal standards forair pollution, as defined in ORS 468A.005 orwater pollution, as defined in ORS 468B.005.§ 18.490. Setoff of damages notallowed.Setoff of damages shall not be granted inactions subject to ORS 18.470 to 18.490.Uniform Comparative Fault ActUniform Law Commissioners (1977)Section 1. [Effect of Contributory Fault](a) In an action based on fault seeking torecover damages for injury or death to person orharm to property, any contributory faultchargeable to the claimant diminishesproportionately the amount awarded ascompensatory damages for an injury attributableto the claimant's contributory fault, but does notbar recovery. This rule applies whether or notunder prior law the claimant's contributory faultconstituted a defense or was disregarded underapplicable legal doctrines, such as last clearchance.(b) "Fault" includes acts or omissions that arein any measure negligent or reckless toward theperson or property of the actor or others, or thatsubject a person to strict tort liability. The termalso includes breach of warranty, unreasonableassumption of risk not constituting an enforceableexpress consent, misuse of a product for which thedefendant otherwise would be liable, andunreasonable failure to avoid an injury or tomitigate damages. Legal requirements of causalrelation apply both to fault as the basis for liabilityand to contributory fault.Section 2. [Apportionment ofDamages](a) In all actions involving fault of more thanone party to the action, including third-partydefendants and persons who have been releasedunder Section 6, the court, unless otherwise agreedby all parties, shall instruct the jury to answerspecial interrogatories or, if there is no jury, shallmake findings, indicating:(1) the amount of damages each claimantwould be entitled to recover if contributoryfault is disregarded; and(2) the percentage of the total fault of allof the parties to each claim that is allocated toeach claimant, defendant, third-partydefendant, and person who has been releasedfrom liability under Section 6. For thispurpose the court may determine that two ormore persons are to be treated as a singleparty.(b) In determining the percentages of fault, thetrier of fact shall consider both the nature of theconduct of each party at fault and the extent of thecausal relation between the conduct and thedamages claimed.(c) The court shall determine the award ofdamages to each claimant in accordance with thefindings, subject to any reduction under Section 6,and enter judgment against each party liable on thebasis of rules of joint-and-several liability. Forpurposes of contribution under Sections 4 and 5,the court also shall determine and state in thejudgment each party's equitable share of theobligation to each claimant in accordance with therespective percentages of fault.(d) Upon motion made not later than [oneyear] after judgement is entered, the court shallOREGON REVISED STATUTES

252 6. MULTIPLE TORTFEASORSdetermine whether all or part of a party's equitableshare of the obligation is uncollectible from thatparty, and shall reallocate any uncollectibleamount among the other parties, including aclaimant at fault, according to their respectivepercentages of fault. The party whose liability isreallocated is nonetheless subject to contributionand to any continuing liability to the claimant onthe judgment.Section 3. [Set-off]A claim and counterclaim shall not be set offagainst each other, except by agreement of bothparties. On motion, however, the court, if it findsthat the obligation of either party is likely to beuncollectible, may order that both parties makepayment into court for distribution. The court shalldistribute the funds received and declareobligations discharged as if the payment into courtby either party had been a payment to the otherparty and any distribution of those funds back tothe party making payment had been a payment tohim by the other party.Section 4. [Right of Contribution](a) A right of contribution exists between oramong two or more persons who are jointly andseverally liable upon the same indivisible claimfor the same injury, death, or harm, whether or notjudgment has been recovered against all or any ofthem. It may be enforced either in the originalaction or by a separate action brought for thatpurpose. The basis for contribution is eachperson's equitable share of the obligation,including the equitable share of a claimant at fault,as determined in accordance with the provisions ofSection 2.(b) Contribution is available to a person whoenters into a settlement with a claimant only (1) ifthe liability of the person against whomcontribution is sought has been extinguished and(2) to the extent that the amount paid in settlementwas reasonable.Section 5. [Enforcement ofContribution](a) If the proportionate fault of the parties to aclaim for contribution has been establishedpreviously by the court, as provided by Section 2,a party paying more than his equitable share of theobligation, upon motion, may recover judgmentfor contribution.(b) If the proportionate fault of the parties tothe claim for contribution has not been establishedby the court, contribution may be enforced in aseparate action, whether or not a judgment hasbeen rendered against either the person seekingcontribution or the person from whomcontribution is being sought.(c) If a judgment has been rendered, the actionfor contribution must be commenced within [oneyear] after the judgment becomes final. If nojudgment has been rendered, the person bringingthe action for contribution either must have (1)discharged by payment the common liabilitywithin the period of the statute of limitationsapplicable to the claimant's right of action againsthim and commenced the action for contributionwithin [one year] after payment, or (2) agreedwhile action was pending to discharge thecommon liability and, within [one year] after theagreement, have paid the liability and commencedan action for contribution.Section 6. [Effect of Release]A release, covenant not to sue, or similaragreement entered into by a claimant and a personliable discharges that person from all liability forcontribution, but it does not discharge any otherpersons liable upon the same claim unless it soprovides. However, the claim of the releasingperson against other persons is reduced by theamount of the released person's equitable share ofthe obligation, determined in accordance with theprovisions of Section 2.Section 7. [Uniformity of Applicationand Construction]This Act shall be applied and construed so asto effectuate its general purpose to make uniformthe law with respect to the subject of this Actamong states enacting it.Section 8. [Short Title]This Act may be cited as the UniformComparative Fault Act.Section 9. [Severability]If any provision of this Act or application of itto any person or circumstances is held invalid, theinvalidity does not affect other provisions orapplications of the Act that can be given effectwithout the invalid provision or application, and tothis end the provisions of this Act are severable.UNIFORM COMPARATIVE FAULT ACT

§ A. OVERVIEW AND STATUTORY EXCERPTS 253Section 10. [Prospective Effect of Act]This Act applies to all [claims forrelief][causes of action] accruing after its effectivedate.Questions and Notes1. The Uniform Comparative Fault Act hasnot been adopted in its entirety by any state; it has,however, served as a template for comparativefault systems in a number of states. For example,the reallocation provisions for joint and severalliability, contained in § 2(d), have been adopted inFlorida (FLA. STAT. § 768.59), Michigan (MICH.STAT. § 600.6304), Minnesota (MINN. STAT. ANN.§ 604.02), and Missouri (MO. STAT. § 537.067).Washington and Iowa have comparative faultsystems that adopted the percentage method ofcalculating settlement credit. For a survey of eachstate, see HENRY. WOODS & BETH DEERE,COMPARATIVE FAULT (3d ed. 1996).§ B. Joint and Several LiabilityLAUBACH v. MORGAN588 P.2d 1071 (Okla. 1978)DOOLIN, JusticeThis appeal arose out of a suit for damagesresulting from a three car collision. Thecircumstances surrounding the accident itself areimmaterial to the appeal. Plaintiff Laubach sueddefendants Morgan and Martin. Defendant Martincross-petitioned against defendant. 28 The case wastried to a jury under 23 O.S. 1975 Supp. §§ 11, 12,Oklahoma's version of comparative negligence.The jury returned a verdict in favor of plaintiff,finding he was damaged in the amount of$4,000.00. The jury apportioned the negligence ofthe parties in the following manner:Plaintiff's negligence ........................... 30 percentDefendant Martin'snegligence .................................... 50 percentDefendant Morgan'snegligence .................................... 20 percentThe trial court entered judgment givingplaintiff recovery against defendants Morgan andMartin in the amount of $4,000.00, reduced byplaintiff's negligence in the amount of 30%, for atotal of $2,800.00. Morgan appeals.Martin also filed a brief as appellant.However, she did not file a petition in error and28On Martin's cross-petition, the jury found herdamages to be $530.15, 40 percent attributable to hernegligence and 60 percent to co-defendant Morgan. Thisportion of the award is not appealed.her brief takes a contrary position to Morgan's. Wewill therefore consider her as an appellee.In 1973, the 34th Legislature of the State ofOklahoma enacted comparative negligencestatutes (23 O.S. 1977 Supp. §§ 11, 12) based onan Arkansas statute 29 which provided for a"modified" comparative negligence system, 30thereby abolishing the common law doctrine thatcontributory negligence of a plaintiff will preclude2923 O.S. 1977 Supp. § 11 provides:Contributory negligence shall not bar recovery ofdamages for any injury, property damage or deathwhere the negligence of the person injured or killed isof lesser degree than the negligence of any person,firm, or corporation causing such damage.In all actions hereafter accruing for negligenceresulting in personal injuries or wrongful death orinjury to property, contributory negligence shall notprevent a recovery where any negligence of theperson so injured, damaged, or killed is of lesserdegree than any negligence of the person, firm, orcorporation causing such damage; provided thatwhere such contributory negligence is shown on thepart of the person injured, damaged or killed, theamount of the recovery shall be diminished inproportion to such contributory negligence.(Emphasis supplied).The Arkansas statute, from which this statute waspatterned, is virtually identical to Oklahoma's. It has sincethat time been repealed and replaced by a statute basedupon fault. See ARK. STATS. ANN. §§ 27-1763-1765.30Under Oklahoma's "modified comparativenegligence" system a plaintiff may recover if hisnegligence is less than the defendant's. Under "purecomparative negligence" a plaintiff is allowed to recoversomething regardless of the percentage of his fault.UNIFORM COMPARATIVE FAULT ACT

254 6. MULTIPLE TORTFEASORShis recovery. The theory of contributorynegligence originated in 1809 in England with thecase of Butterfield v. Forrester, 11 East 60, 103Eng. Rep. 926 (K.B. 1809). By 1940, England haddecided the doctrine no longer met present dayneeds and contributory negligence was abandonedand overruled. At present in the United States,around thirty-three states have adopted, eitherjudicially or by statute, some type of comparativenegligence system. 31Oklahoma's very general comparativenegligence statute is admittedly ambiguous inreference to situations involving multiple partiessuch as we have here. When two or moredefendants are involved, its application becomesunclear and the need for definitive guidelines fromthis court is readily apparent.The first problem concerns whether anegligent plaintiff will or will not be allowed torecover, under the language of § 11. Is a plaintiff'snegligence to be compared with the combinednegligence of all defendants, or should it becompared to each defendant's individually? Thefirst issue submitted by Morgan in his appeal isthat under our statute, because he was found to beless negligent than plaintiff, there should be nojudgment entered against him. In the alternative hesuggests he should be responsible only for 20% ofthe award.Under Morgan's first theory of comparison ofnegligence, as the number of defendants increases,the likelihood of a plaintiff's recovery maydiminish. For example assume a plaintiff is foundto be 40 percent negligent. If only one defendant isinvolved, plaintiff will recover 60 percent of hisdamages. If two more defendants are liable andthe 60 percent negligence is equally distributedamong them, plaintiff would recover nothingbecause he was more negligent than eachdefendant. We believe this is an unsatisfactoryconstruction.Two state courts in decisions cited to us by theparties have come to opposite conclusions. InWisconsin in the above situation, plaintiff recoversnothing. 32 In Arkansas, he would be entitled tojudgment.31See generally HEFT AND HEFT, COMPARATIVENEGLIGENCE MANUAL (1971) and 1977 Supp.32Bielski v. Schulze, 16 Wis. 2d 1, 114 N.W.2d 105(1962).In Walton v. Tull, 234 Ark. 882, 356 S.W.2d20, 8 A.L.R.3d 708 (1962), the Arkansas SupremeCourt interpreted its statute, to allow a plaintiff'snegligence to be compared to the Combinednegligence of all defendants. In Walton thisprinciple entitled the plaintiff, determined by ajury to be only ten percent negligent, to recoverfrom one of the defendants who was also tenpercent negligent. The Arkansas court stated thebasic purpose of the comparative negligencestatute was to distribute the total damages amongthose who cause them. It was convinced theLegislature, in enacting comparative negligencedid not mean to go any further than to deny aplaintiff recovery, when his negligence was atleast 50 percent of the cause of damages. 33 Weagree.We are not unmindful that this interpretationis not of universal acceptance. As indicated above,Wisconsin has come to a different conclusion. Webelieve the Arkansas approach is the better view. Aplaintiff's recovery is not thereby jeopardized bythe fact that multiple tortfeasors are involved.Further, if one state adopts a statute from another,it is presumed to adopt the construction placedupon that statute by the highest court of the otherstate. 34 Accordingly we adopt the rationale ofWalton v. Tull, supra, and hold, in an action basedon comparative negligence, a plaintiff's percentageof negligence is to be compared with the aggregatenegligence of all defendants combined, and if theplaintiff is less than 50 percent negligent he shallbe entitled to recovery from each negligentdefendant. Plaintiff here is entitled to recover fromboth Morgan and Martin.This brings us to a second problem involvedconcerning multiple tortfeasors. Historically, if thenegligence of two or more tortfeasors caused asingle and indivisible injury, the concurrent33Texas, Nevada and Connecticut have expresslyprovided by statute that multiple defendants are to betreated as a unit for purpose of deciding issue of whether ornot a plaintiff committed less or greater degree ofnegligence than defendants. V. SCHWARTZ, COMPARATIVENEGLIGENCE § 16.6 pp. 256-260 (1974). Also see Krengelv. Midwest Automatic Photo, Inc., 295 Minn. 200, 203N.W.2d 841 (1973) and Rawson v. Lohsen, 145 N.J. Super.71, 366 A.2d 1022 (1976) which follows Wisconsin rule.34Baker v. Knott, 494 P.2d 302 (Okl. 1972); Chesmorev. Chesmore, 484 P.2d 516 (Okl. 1971).LAUBACH V. MORGAN

§ B. JOINT AND SEVERAL LIABILITY 255tortfeasors would be liable "in solidium," eachbeing liable for the total amount of the award,regardless of his percentage of responsibility. Eachdefendant was jointly and severally liable for theentire amount of damages. This principle of entireliability is of questionable soundness under acomparative system where a jury determines theprecise amount of fault attributable to each party.In the present case, under the theory of jointand several liability, plaintiff may collect his entireaward from Morgan. The unfairness of thisapproach is magnified where, as in Oklahoma, nocontribution is available among joint tortfeasors. 35In states where contribution is allowed, by judicialdecision or through the Uniform ContributionAmong Tortfeasors Act, this inequity is somewhatrelieved. 36Some jurisdictions have taken care of themultiple party problems through various, but byno means uniform, statutory provisions inconjunction with their comparative negligencestatutes. 37 Absent specific legislation, this courtmust augment our statutory scheme to meet theintent and underlying principle of comparativenegligence, which is founded on attaching totalresponsibility to each person whose lack of carecontributed to the damages. We therefore mustmake one of two possible decisions.1. Allow "comparative contribution"3512 O.S. 1971 § 831 dealing with contracts has notbeen applied to joint tortfeasors. See National TrailerConvoy, Inc. v. Oklahoma Turnpike Authority, 434 P.2d238 (Okl. 1967).36Arkansas has retained the concept of joint and severalliability. See Walton v. Tull, supra; Wheeling Pipe Line,Inc. v. Edrington, 535 S.W.2d 225 (Ark. 1976). However,Arkansas has adopted a version of the UniformContribution Among Tortfeasors Act which allows pro ratacontribution. See 9 U.L.A. 235.37For example Texas adopted its comparativenegligence statutes at the same time as Oklahoma, but itprovides answers to a variety of issues. The Texas statuteprovides each defendant is jointly and severally liable forentire amount, except that a defendant whose negligence isless than that of the plaintiff is liable only for that portionof the judgment which represents the percentage ofnegligence attributable to him. Our statute results in moreuncertainty and thus more litigation. See Keeton"Comparative Negligence the Oklahoma Version," 10 TUL.L. R. 19 (1975).among joint tortfeasors in proportion to theparty's negligence. 382. Do away with the "entire liability rule"and provide that multiple tortfeasors areseverally liable only, thus each defendant willbe liable only for the percentage of the awardattributable to him. 39We opt for the second solution. This in effectdrastically changes the theory of jointtortfeasors.40 So be it.Under the common law system ofcontributory negligence, a plaintiff who was guiltyof even slight negligence, could recover nothing.The law balanced this possible inequity byallowing a plaintiff who was found to be legally"pure" because he was not even slightly negligent,to collect his entire judgment from any defendantwho was guilty of "even slight negligence". Theadoption of comparative negligence, even in themodified form, gives judgment to any plaintiffwhose negligence is less than 50 percent. There isno longer a need to compensate a "pure" plaintiff.By doing away with joint liability a plaintiff willcollect his damages from the defendant who isresponsible for them.This solution does not affect our rules againstcontribution which will continue to control whenthe proportion of negligence attributable to eachdefendant is not determined, for example wherenegligence is imputed. Under our comparativenegligence system, a jury sets liability in a precisemanner. If a jury is capable of apportioning faultbetween a plaintiff and defendant, it should be nomore difficult for it to allocate fault among severaldefendants. Holding a defendant tortfeasor, who isonly 20 percent at fault, liable for entire amount ofdamages is obviously inconsistent with the38This is Wisconsin's solution. See Bielski v. Schulze,16 Wis. 2d 1, 114 N.W.2d 105 (Wis. 1962).39See Fleming, Comparative Negligence at Last ByJudicial Choice, 64 CAL. L. R. 239 (1976).40We do not deal here with such problems as imputedor vicarious liability, where negligence of two or moretortfeasors is treated as a unit, so that so far as thecomparative negligence doctrine is concerned it is thesame as if only one defendant is involved. Neither do weattempt to discuss problems involved when a plaintiff doesnot sue all those who are potentially responsible forinjuries, such as situations involving hit and run.LAUBACH V. MORGAN

256 6. MULTIPLE TORTFEASORSequitable principles of comparative negligence asenacted by the Legislature. We should allow a juryto apportion fault as it sees fit. Joint and severalliability then will only exist where, for somereason, damages cannot be apportioned by thejury. By abrogating joint liability, a simple generalverdict between plaintiff and each defendant maybe made. 41 In this situation no problem ofcontribution arises, because no defendant has abasis upon which to seek contribution from a codefendant.It is argued this could work a hardship on aplaintiff if one co-defendant is insolvent. But thespecter of the judgment-proof wrongdoer isalways with us, whether there is one defendant ormany. We decline to turn a policy decision on anapparition. There is no solution that would notwork an inequity on either the plaintiff or adefendant in some conceivable situation whereone wrongdoer is insolvent.An examination of the law of otherjurisdictions shows no two statutory or judicialschemes to be identical or even similar to ours. 42There appears to be no pattern related to theconsequences of the elimination of the bar ofcontributory negligence upon the question of jointversus several liability of co-defendants. We callyour attention to an appellate California decisionon this subject, American Motorcycle Associationv. Superior Court, 65 Cal. App. 3d 694, 135 Cal.Rptr. 497 (1977). Although the decision in thiscase was recently overruled 43 its rationale is verypersuasive. Further the appendix to that decision isan exhaustive compilation as to each jurisdiction'streatment of multiple tortfeasors under itscomparative negligence system.Our comparative negligence statutes areincomplete both in scope and detail as to how itshould be applied to multiple parties. Theunderlying principle of comparative negligence isfounded on attaching liability in direct proportionto the respective fault of each person whose41See Contribution Act Construed Should Joint andSeveral Liability Have Been Considered First? 30 U.MIAMI L. R. 747 (1976).42See annotations at 8 A.L.R.3d 722 and 53 A.L.R.3d184.43American Motorcycle Association v. Superior Court,20 Cal. 3d 578, 146 Cal. Rptr. 182, 578 P.2d 899 (1978).negligence caused the damage. The logicalextension of this doctrine would apply it as amongmultiple tortfeasors as well as between plaintiffand defendant. If liability attaches to eachtortfeasor in proportion to his comparative fault,there will be no need for added litigation bydefendants seeking contribution. The adoption ofthe theory of comparative fault satisfies the needto apportion liability without invading theLegislature's power to grant contribution. "Theonly completely satisfactory method of dealingwith the situation is to bring all parties into courtin a single action to determine the damagessustained by each, and to require that each bear aproportion of the total loss according to hisfault." 44We therefore REVERSE and REMAND theproceeding to trial court with directions to enterjudgment against each defendant in accordancewith his degree of negligence as found by the jury,Martin for 50% And Morgan 20% Of totaldamages of $4,000.00.WILLIAMS, IRWIN, BERRY, BARNES andSIMMS, JJ., concur.HODGES, C.J., and LAVENDER, V.C.J.,dissent.Rehearing denied.WILLIAMS, IRWIN, BARNES, SIMMS,HARGRAVE and OPALA, JJ., concur.HODGES, C.J., and LAVENDER, V.C.J.,dissent.Questions and Notes1. An important prerequisite for a finding ofjoint and several liability is a finding that therewas a single (indivisible) injury to the plaintiff. Ingeneral, indivisible injuries are those in whichmultiple tortfeasors are responsible for a singleresult. On the other hand, divisible injuries (as theterm implies) can be caused by multipletortfeasors, but result in distinguishable injuries.For example, if two cars collide in an intersection,causing one of the cars to jump the curb and hit apedestrian on the sidewalk, the pedestrian can sue44Prosser, Comparative Negligence, 51 MICH. L. R. 465(1953).LAUBACH V. MORGAN

§ B. JOINT AND SEVERAL LIABILITY 257both drivers for the indivisible injuries caused bythe collision. On the other hand, if two cars aredriven negligently in unrelated incidents, and oneruns over the plaintiff's leg, while the other runsover the plaintiff's arm, each defendant can claimthat the injuries are divisible, and each should beliable only for the damage caused by his or hernegligent act. For a general discussion, seePROSSER AND KEETON, § 52.BOYLES v. OKLAHOMA NATURALGAS CO.619 P.2d 613 (Okla. 1980)OPALA, JusticeThe issues presented by these appeals are: (1)Did the trial court err in sustaining OklahomaNatural Gas Company's (ONG) demurrer toplaintiff's evidence? (2) Did the trial court err inrefusing to instruct the jury that it apportionliability among the defendants in proportion to thepercentage of causal negligence it findsattributable to each? (3) Was it error to instruct thejury on defendant's violation of a local municipalordinance? (4) Did refusal of a requested juryinstruction that liability cannot be supported byone inference placed upon another constitutereversible error? (5) Did the trial court err inallowing testimony of a city mechanical inspectoras to certain custom and usage in the trade? (6) Isthe jury's verdict tainted by an inconsistency infinding both the building owner and its contractorplumbernegligent?We hold that: (1) ONG's demurrer wasproperly sustained; (2) there was no error inrefusing to instruct the jury to apportion theseveral defendants' liability; (3) the juryinstruction with respect to the ordinance was freefrom error; (4) the refusal to submit the requestedinstruction was not prejudicial and reversibleerror; (5) specific allegation of custom was not anecessary predicate for the admitted testimony asto certain trade practice; and (6) the jury verdict isnot inconsistent since there was evidentiary basisupon which the jury could find both codefendantsownerand plumber-negligent by reason ofseparate acts.A passerby [Plaintiff] was injured in anexplosion which leveled a building owned byCanteen Corporation [Owner], one of fourcodefendants. The building had been occupied as arestaurant. It was equipped with a "firesuppression system". The device, attached to thestructure's gas pipes directly above the cookingequipment, functioned in conjunction with a gasvalve that, in the event of a fire, wouldautomatically shut off the gas.Owner engaged Accurate Fire EquipmentCompany [Accurate], another codefendant, toinstall three identical fire suppression systems at adifferent location. The system that was in place inthe vacant restaurant was to be dismantled andused as one of the three to be installed. Anemployee of Accurate, who had removed the firesuppression system, did not take out the automaticgas valve which was a part of it. Later, when otheremployees of Accurate were waiting to begininstallation of the system at the new location, theywere instructed to "pick up" the missing gas valvefrom the vacant building. They then removed thevalve. In the process they left uncapped the gaspipe they had cut for this purpose. Several monthslater, during the winter, water froze in the vacantbuilding and its pipes burst. The Owner engagedCarder Plumbing Company (Carder), a thirdcodefendant, to restore heat and preventrefreezing. One of Carder's plumbers turned on thegas into the building and within an hour anexplosion occurred in which plaintiff was injured.Plaintiff brought suit against the Owner, ONG,Carder and Accurate to recover damages forinjuries sustained in the gas explosion alleged tohave been caused by defendants' negligence. Thetrial court sustained ONG's demurrer to plaintiff'sevidence and a jury verdict found against theremaining three defendants. Accurate did notappeal. Owner and Carder brought separateappeals which stand consolidated for decision.* * *ERROR IN JURY'S FAILURE TO ASSESSPERCENTAGE OF NEGLIGENCE ATTRIBUTABLE TOEACH DEFENDANTThe Owner and Carder assert error in trialcourt's refusal to instruct the jury separately toassess against each of the defendants theIILAUBACH V. MORGAN

258 6. MULTIPLE TORTFEASORSpercentage of negligence found attributable toeach. Both the Owner and Carder argue thatLaubach v. Morgan, Okl., 588 P.2d 1071 (1978),should have been applied here to the multipletortfeasors in a negligence action. If apposite,Laubach would require that the negligence of eachparty be separately assessed.Laubach was a comparative negligence case,within the meaning of 23 O.S. Supp. 1978 § 11,Repealed by Okla. Sess. L. 1979, c. 38 § 4 andreplaced by 23 O.S. Supp. 1979 § 13, in which theplaintiff was found partially at fault in producinghis injury. Here, we are concerned not withcomparative negligence, but rather with anadmittedly blame-free plaintiff seeking recoveryfrom multiple tortfeasors whose negligence is saidto have "concurred, commingled and combined" toproduce the harm.The common-law negligence liability conceptmay be described as "all or nothing" to theplaintiff. If he be blame-free "all" is due him; if hebe at fault, however slightly, "nothing" is his due.The statutory comparative negligence approachallows the victim at fault to secure some, but notall, of his damages. The raison d'être and rationaleof comparative negligence are tied, hand-and-foot,to the narrow parameters of a blameworthyplaintiff's claim. McNichols, Judicial Eliminationof Joint and Several Liability Because ofComparative Negligence - A Puzzling Choice, 32OKLA. L. REV. 1, 11 and 12 (1979). We hold thatneither the rationale nor the holding of Laubachapplies to that class of negligence litigation inwhich the plaintiff is not one among severalnegligent co-actors.Several liability, fashioned in Laubach, washeld applicable in a comparative negligencecontext where the plaintiff was found to be one ofseveral negligent co-actors. There is absolutelynothing in Laubach to negate the continued forceof the common-law rule of joint and severalliability in those negligent torts which fallcompletely outside the purview of ourcomparative negligence legislation. 1 Althoughsome of the language in Laubach appearssweeping at first blush, 2 it is to be viewed as123 O.S. Supp.1979 § 13. Our new comparativenegligence provision remains yet to be interpreted.Laubach dealt with its antecedent version.2The pertinent language in Laubach, supra note 5 atlimited to cases in which the trier is called upon tocompare between the plaintiff's want of care onthe one hand, and that of one or more defendantson the other hand. Several reasons militate infavor of this conclusion. No foundation exists forextending Laubach's proportionate-faultassessmentdoctrine to multiple negligenttortfeasors in all cases. The states which haveabrogated joint and several liability have done so -if at all - only within the context of comparativenegligence and quite limitedly at that. 3 Absent anexpress legislative abrogation, no jurisdiction hasfound it necessary completely to abolish thecommon-law liability rule. Except as modified inLaubach for comparative negligence cases, thecommon-law rule of joint and several tortfeasors'liability remained unaltered and in force when theclaim here under review arose and at the time itcame for adjudication. 4 That rule casts - not on the1074, provides: "2. Do away with the `entire liability rule'and provide multiple tortfeasors are severally liable only,...This in effect drastically changes the theory ofjoint-tortfeasors." At page 1075 the opinion states: "Jointand several liability then will only exist where, for somereason, damages cannot be apportioned by the jury." Seealso McNichols, Judicial Elimination of Joint and SeveralLiability Because of Comparative Negligence - A PuzzlingChoice, supra note 7 at 27.3Arkansas has retained the concept of joint and severalliability. Walton v. Tull, 356 S.W.2d 20, 26 (Ark. 1962);Wheeling Pipe Line, Inc. v. Edrington, 535 S.W.2d 225,226 (Ark. 1976). California also retained joint and severalliability rule, finding, along with the great majority ofjurisdictions, that it does not conflict with comparativenegligence theory. See American Motorcycle Ass'n. v.Superior Court, 578 P.2d 899, 901 (Cal. 1978). Texas'comparative negligence statute provides that eachdefendant is jointly and severally liable for the entireamount, except that a defendant whose negligence is lessthan that of the plaintiff is liable only for that portion of thejudgment which is attributable to him. Wisconsin providesfor "comparative contribution" among joint tortfeasors inproportion to the party's negligence. See Bielski v. Schulze,114 N.W.2d 105, 108 (Wis. 1962).4National Trailer Convoy, Inc. v. Oklahoma TurnpikeAuthority, Okl., 434 P.2d 238, 240 (1967); Okla. Ry. Co. v.Ivery, 201 Okl. 245, 204 P.2d 978, 982 (1949); Selby Oiland Gas Co. v. Rogers, 94 Okl. 269, 221 P. 1012, 1013(1924); Northup v. Eakes, 72 Okl. 66, 178 P. 266, 268(1919). Our newly enacted statute on contribution amongtortfeasors, Okla. Sess. L. 1978, c. 78 § 1, 12 O.S. Supp.1978 § 832, became effective October 1, 1978, which dateis subsequent to both the occurrence of the harm and therendition of the judgment in this case.AMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

§ B. JOINT AND SEVERAL LIABILITY 259blameless victim - but on each of the legallyvanquished wrongdoers the risk of an insolventtortfeasor. Because of the recognized difficulty inapportioning fault in most instances, the commonlawrule allocates liability as an integrity. In sodoing it strives to afford an injured plaintiff fulland just satisfaction of the adjudged obligation.Note, Multiple Party Litigation UnderComparative Negligence in Oklahoma - Laubachv. Morgan, 13 TULSA L. J. 266, 269 and 280(1977).In the instant case there was but a singleinjury. Implicit in the jury's verdict is its findingthat the separate and independent acts ofnegligence on the part of the codefendantsconcurred and combined to produce the harmfulresult for which damages were sought. 5 Eventhough concert among the tortfeasors was lackingand the act of one codefendant alone may not havebrought about the result, each is at common lawresponsible for the entire damage. There is nostatutory warrant for a conclusion that thecommon-law rule was to be scuttled in order toalter the legal obligation owed by negligent coactorsto a fault-free tort claimant.We hold Laubach does not apply to tortlitigation in which the injured party is not anegligent co-actor.* * *5Green v. Sellers, Okl., 413 P.2d 522, 528 (1966);W.L. Hulett Lumber Co. v. Bartlett-Collins Co., 206 Okl.93, 241 P.2d 378, 383 (1952); Oklahoma Ry. Co. v. Ivery,supra note 11.BOYLES V. OKLAHOMA NATURAL GAS CO.

260 6. MULTIPLE TORTFEASORSAMERICAN MOTORCYCLE ASS'N v.SUPERIOR COURT578 P.2d 899 (Cal. 1978)TOBRINER, JusticeThree years ago, in Li v. Yellow Cab Co.(1975) 13 Cal. 3d 804, 119 Cal. Rptr. 858, 532P.2d 1226, we concluded that the harsh and muchcriticized contributory negligence doctrine, whichtotally barred an injured person from recoveringdamages whenever his own negligence hadcontributed in any degree to the injury, should bereplaced in this state by a rule of comparativenegligence, under which an injured individual'srecovery is simply proportionately diminished,rather than completely eliminated, when he ispartially responsible for the injury. In reaching theconclusion to adopt comparative negligence in Li,we explicitly recognized that our innovationinevitably raised numerous collateral issues, "[t]hemost serious [of which] are those attendant uponthe administration of a rule of comparativenegligence in cases involving multiple parties."(13 Cal. 3d at p. 823, 119 Cal. Rptr. at p. 87, 532P.2d at p. 1239.) Because the Li litigation itselfinvolved only a single plaintiff and a singledefendant, however, we concluded that it was"neither necessary nor wise" (13 Cal. 3d at p. 826,119 Cal. Rptr. 858, 532 P.2d 1226) to address suchmultiple party questions at that juncture, and weaccordingly postponed consideration of suchquestions until a case directly presenting suchissues came before our court. The presentmandamus proceeding presents such a case, andrequires us to resolve a number of the thornymultiple party problems to which Li adverted.For the reasons explained below, we havereached the following conclusions with respect tothe multiple party issues presented by this case.First, we conclude that our adoption ofcomparative negligence to ameliorate theinequitable consequences of the contributorynegligence rule does not warrant the abolition orcontraction of the established "joint and severalliability" doctrine; each tortfeasor whosenegligence is a proximate cause of an indivisibleinjury remains individually liable for allcompensable damages attributable to that injury.Contrary to petitioner's contention, we concludethat joint and several liability does not logicallyconflict with a comparative negligence regime.Indeed, as we point out, the great majority ofjurisdictions which have adopted comparativenegligence have retained the joint and severalliability rule; we are aware of no judicial decisionwhich intimates that the adoption of comparativenegligence compels the abandonment of this longstandingcommon law rule. The joint and severalliability doctrine continues, after Li, to play animportant and legitimate role in protecting theability of a negligently injured person to obtainadequate compensation for his injuries from thosetortfeasors who have negligently inflicted theharm.Second, although we have determined that Lidoes not mandate a diminution of the rights ofinjured persons through the elimination of thejoint and several liability rule, we conclude thatthe general principles embodied in Li do warrant areevaluation of the common law equitableindemnity doctrine, which relates to the allocationof loss among multiple tortfeasors. As we explain,California decisions have long invoked theequitable indemnity doctrine in numeroussituations to permit a "passively" or "secondarily"negligent tortfeasor to shift his liability completelyto a more directly culpable party. While thedoctrine has frequently prevented a more culpabletortfeasor from completely escaping liability, therule has fallen short of its equitable heritagebecause, like the discarded contributorynegligence doctrine, it has worked in an "all-ornothing"fashion, imposing liability on the moreculpable tortfeasor only at the price of removingliability altogether from another responsible, albeitless culpable, party.Prior to Li, of course, the notion ofapportioning liability on the basis of comparativefault was completely alien to California commonlaw. In light of Li, however, we think that thelong-recognized common law equitable indemnitydoctrine should be modified to permit, inappropriate cases, a right of partial indemnity,under which liability among multiple tortfeasorsmay be apportioned on a comparative negligencebasis. As we explain, many jurisdictions whichhave adopted comparative negligence haveAMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

§ B. JOINT AND SEVERAL LIABILITY 261embraced similar comparative contribution orcomparative indemnity systems by judicialdecision. Such a doctrine conforms to Li'sobjective of establishing "a system under whichliability for damage will be borne by those whosenegligence caused it in direct proportion to theirrespective fault." (13 Cal. 3d at p. 813, 119 Cal.Rptr. at p. 864, 532 P.2d at p. 1232.)Third, we conclude that California's currentcontribution statutes do not preclude our courtfrom evolving this common law right ofcomparative indemnity. In Dole v. Dow ChemicalCompany (1972) 30 N.Y.2d 143, 331 N.Y.S.2d382, 282 N.E.2d 288, the New York Court ofAppeals recognized a similar, common law partialindemnity doctrine at a time when New York had acontribution statute which paralleled California'spresent legislation. Moreover, the Californiacontribution statute, by its own terms, expresslysubordinates its provisions to common lawindemnity rules; since the comparative indemnityrule we recognize today is simply an evolutionarydevelopment of the common law equitableindemnity doctrine, the primacy of such right ofindemnity is expressly recognized by the statutoryprovisions. In addition, the equitable nature of thecomparative indemnity doctrine does not thwart,but enhances, the basic objective of thecontribution statute, furthering an equitabledistribution of loss among multiple tortfeasors.Fourth, and finally, we explain that under thegoverning provisions of the Code of Civil Procedure,a named defendant is authorized to file across-complaint against any person, whetheralready a party to the action or not, from whomthe named defendant seeks to obtain total orpartial indemnity. Although the trial court retainsthe authority to postpone the trial of the indemnityquestion if it believes such action is appropriate toavoid unduly complicating the plaintiff's suit, thecourt may not preclude the filing of such a crosscomplaintaltogether.In light of these determinations, we concludethat a writ of mandate should issue, directing thetrial court to permit petitioner-defendant to file across-complaint for partial indemnity againstpreviously unjoined alleged concurrent tortfeasors.1. The factsIn the underlying action in this case, plaintiffGlen Gregos, a teenage boy, seeks to recoverdamages for serious injuries which he incurredwhile participating in a cross-country motorcyclerace for novices. Glen's second amendedcomplaint alleges, in relevant part, that defendantsAmerican Motorcycle Association (AMA) and theViking Motorcycle Club (Viking) theorganizations that sponsored and collected theentry fee for the race negligently designed,managed, supervised and administered the race,and negligently solicited the entrants for the race.The second amended complaint further allegesthat as a direct and proximate cause of suchnegligence, Glen suffered a crushing of his spine,resulting in the permanent loss of the use of hislegs and his permanent inability to perform sexualfunctions. Although the negligence count of thecomplaint does not identify the specific acts oromissions of which plaintiff complains, additionalallegations in the complaint assert, inter alia, thatdefendants failed to give the novice participantsreasonable instructions that were necessary fortheir safety, failed to segregate the entrants intoreasonable classes of equivalently skilledparticipants, and failed to limit the entry ofparticipants to prevent the racecourse frombecoming overcrowded and hazardous. 1AMA filed an answer to the complaint,denying the charging allegations and asserting anumber of affirmative defenses, including a claimthat Glen's own negligence was a proximate causeof his injuries. Thereafter, AMA sought leave ofcourt to file a cross-complaint, which purported tostate two causes of action against Glen's parents.The first cause of action alleges that at all relevanttimes Glen's parents (1) knew that motorcycleracing is a dangerous sport, (2) were"knowledgeable and fully cognizant" of thetraining and instruction which Glen had receivedon the handling and operation of his motorcycle,and (3) directly participated in Glen's decision toenter the race by signing a parental consent form.1Glen's second amended complaint is framed in sixcounts and names, in addition to AMA and Viking,numerous individual Viking officials and the ContinentalCasualty Company of Chicago (AMA's insurer) asdefendants. In addition to seeking recovery on the basis ofnegligence, plaintiff claims that various defendants (1)were guilty of fraud and misrepresentation in relation tothe race, (2) acted in bad faith in refusing to settle amedical reimbursement claim allegedly covered byinsurance and (3) intentionally inflicted emotional distressupon him. Only the negligence claim, however, is relevantto the present proceeding.AMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

262 6. MULTIPLE TORTFEASORSThis initial cause of action asserts that inpermitting Glen's entry into the race, his parentsnegligently failed to exercise their power ofsupervision over their minor child; moreover, thecross-complaint asserts that while AMA'snegligence, if any, was "passive," that of Glen'sparents was "active." On the basis of theseallegations, the first cause of action seeksindemnity from Glen's parents if AMA is foundliable to Glen.In the second cause of action of its proposedcross-complaint, AMA seeks declaratory relief. Itreasserts Glen's parents' negligence, declares thatGlen has failed to join his parents in the action,and asks for a declaration of the "allocablenegligence" of Glen's parents so that "the damagesawarded [against AMA], if any, [may] be reducedby the percentage of damages allocable to crossdefendants'negligence." As more fully explainedin the accompanying points and authorities, thissecond cause of action is based on an implicitassumption that the Li decision abrogates the ruleof joint and several liability of concurrenttortfeasors and establishes in its stead a new ruleof "proportionate liability," under which eachconcurrent tortfeasor who has proximately causedan indivisible harm may be held liable only for aportion of plaintiff's recovery, determined on acomparative fault basis.The trial court, though candidly critical of thecurrent state of the law, concluded that existinglegal doctrines did not support AMA's proposedcross-complaint, and accordingly denied AMA'smotion for leave to file the cross-complaint. AMApetitioned the Court of Appeal for a writ ofmandate to compel the trial court to grant itsmotion, and the Court of Appeal, recognizing therecurrent nature of the issues presented and theneed for a speedy resolution of these multipleparty questions, issued an alternative writ;ultimately, the court granted a peremptory writ ofmandate. In view of the obvious statewideimportance of the questions at issue, we ordered ahearing in this case on our own motion. All partiesconcede that the case is properly before us.2. The adoption of comparative negligencein Li does not warrant the abolition of joint andseveral liability of concurrent tortfeasors.In evaluating the propriety of the trial court'sruling, we begin with a brief review of theestablished rights of injured persons vis a visnegligent tortfeasors under current law. Underwell-established common law principles, anegligent tortfeasor is generally liable for alldamage of which his negligence is a proximatecause; stated another way, in order to recoverdamages sustained as a result of an indivisibleinjury, a plaintiff is not required to prove that atortfeasor's conduct was the sole proximate causeof the injury, but only that such negligence was aproximate cause. (See generally 4 WITKIN,SUMMARY OF CAL. LAW (8th ed. 1974) Torts, §624, pp. 2906-2907 and cases cited; REST. 2DTORTS, §§ 432, subd. (2), 439.) This result followsfrom Civil Code section 1714's declaration that"[e]very one is responsible ... for an injuryoccasioned to another by his want of ordinary careor skill...." A tortfeasor may not escape thisresponsibility simply because another act either an"innocent" occurrence such as an "act of God" orother negligent conduct may also have been acause of the injury.In cases involving multiple tortfeasors, theprinciple that each tortfeasor is personally liablefor any indivisible injury of which his negligenceis a proximate cause has commonly beenexpressed in terms of "joint and several liability."As many commentators have noted, the "joint andseveral liability" concept has sometimes causedconfusion because the terminology has been usedwith reference to a number of distinct situations.(See, e.g., PROSSER, LAW OF TORTS (4th ed. 1971)§§ 46, 47, pp. 291-299; 1 HARPER & JAMES, LAWOF TORTS (1956) § 10.1, pp. 692-709.) Theterminology originated with respect to tortfeasorswho acted in concert to commit a tort, and in thatcontext it reflected the principle, applied in boththe criminal and civil realm, that all members of a"conspiracy" or partnership are equallyresponsible for the acts of each member infurtherance of such conspiracy.Subsequently, the courts applied the "joint andseveral liability" terminology to other contexts inwhich a preexisting relationship between twoindividuals made it appropriate to hold oneindividual liable for the act of the other; commonexamples are instances of vicarious liabilitybetween employer and employee or principal andagent, or situations in which joint owners ofproperty owe a common duty to some third party.In these situations, the joint and several liabilityconcept reflects the legal conclusion that oneindividual may be held liable for the consequencesof the negligent act of another.AMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

§ B. JOINT AND SEVERAL LIABILITY 263In the concurrent tortfeasor context, however,the "joint and several liability" label does notexpress the imposition of any form of vicariousliability, but instead simply embodies the generalcommon law principle, noted above, that atortfeasor is liable for any injury of which hisnegligence is a proximate cause. Liability attachesto a concurrent tortfeasor in this situation notbecause he is responsible for the acts of otherindependent tortfeasors who may also have causedthe injury, but because he is responsible for alldamage of which his own negligence was aproximate cause. When independent negligentactions of a number of tortfeasors are each aproximate cause of a single injury, each tortfeasoris thus personally liable for the damage sustained,and the injured person may sue one or all of thetortfeasors to obtain a recovery for his injuries; thefact that one of the tortfeasors is impecunious orotherwise immune from suit does not relieveanother tortfeasor of his liability for damagewhich he himself has proximately caused.Prior to Li, of course, a negligent tortfeasor'sliability was limited by the draconian contributorynegligence doctrine; under that doctrine, anegligent tortfeasor escaped liability for injurieswhich he had proximately caused to anotherwhenever the injured person's lack of due care forhis own safety was also a proximate cause of theinjury. In Li, however, we repudiated thecontributory negligence rule, recognizing withDean Prosser that "[p]robably the true explanation[of the doctrine's development in this country was]that the courts [of the 19th century] found in thisdefense, along with the concepts of duty andproximate cause, a convenient instrument ofcontrol over the jury, by which the liabilities ofrapidly growing industry were curbed and keptwithin bounds." (13 Cal. 3d at p. 811, fn.4, 119Cal. Rptr. at p. 863, 532 P.2d at p. 1231 (quotingProsser, Comparative Negligence (1953) 41 CAL.L. REV. 1, 4)); cf. Dillon v. Legg (1968) 68 Cal. 2d728, 734-735, 69 Cal. Rptr. 72, 441 P.2d 912.)Concluding that any such rationale could nolonger justify the complete elimination of aninjured person's right to recover for negligentlyinflicted injury, we held in Li that "in all actionsfor negligence resulting in injury to person orproperty, the contributory negligence of the personinjured in person or property shall not bar recovery,but the damages awarded shall be diminishedin proportion to the amount of negligenceattributable to the person recovering." (13 Cal. 3dat p. 829, 119 Cal. Rptr. at p. 875, 532 P.2d at p.1243.)In the instant case AMA argues that the Lidecision, by repudiating the all-or-nothingcontributory negligence rule and replacing it by arule which simply diminishes an injured party'srecovery on the basis of his comparative fault, ineffect undermined the fundamental rationale of theentire joint and several liability doctrine as appliedto concurrent tortfeasors. In this regard AMA citesthe following passage from Finnegan v. RoyalRealty Co. (1950) 35 Cal. 2d 409, 433-434, 218P.2d 17, 32: "Even though persons are not actingin concert, if the results produced by their acts areindivisible, each person is held liable for thewhole.... The reason for imposing liability on eachfor the entire consequences is that there exists nobasis for dividing damages and the law is loath topermit an innocent plaintiff to suffer as against awrongdoing defendant. This liability is imposedwhere each cause is sufficient in itself as well aswhere each cause is required to produce theresult." (Emphasis added.) Focusing on theemphasized sentence, AMA argues that after Li (1)there is a basis for dividing damages, namely on acomparative negligence basis, and (2) a plaintiff isno longer necessarily "innocent," for Li permits anegligent plaintiff to recover damages. AMAmaintains that in light of these two factors it islogically inconsistent to retain joint and severalliability of concurrent tortfeasors after Li. As weexplain, for a number of reasons we cannot acceptAMA's argument.First, the simple feasibility of apportioningfault on a comparative negligence basis does notrender an indivisible injury "divisible" forpurposes of the joint and several liability rule. Aswe have already explained, a concurrent tortfeasoris liable for the whole of an indivisible injurywhenever his negligence is a proximate cause ofthat injury. In many instances, the negligence ofeach of several concurrent tortfeasors may besufficient, in itself, to cause the entire injury; inother instances, it is simply impossible todetermine whether or not a particular concurrenttortfeasor's negligence, acting alone, would havecaused the same injury. Under such circumstances,a defendant has no equitable claim vis a vis aninjured plaintiff to be relieved of liability fordamage which he has proximately caused simplybecause some other tortfeasor's negligence mayalso have caused the same harm. In other words,the mere fact that it may be possible to assignAMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

264 6. MULTIPLE TORTFEASORSsome percentage figure to the relative culpabilityof one negligent defendant as compared to anotherdoes not in any way suggest that each defendant'snegligence is not a proximate cause of the entireindivisible injury.Second, abandonment of the joint and severalliability rule is not warranted by AMA's claimthat, after Li, a plaintiff is no longer "innocent."Initially, of course, it is by no means invariablytrue that after Li injured plaintiffs will be guilty ofnegligence. In many instances a plaintiff will becompletely free of all responsibility for theaccident, and yet, under the proposed abolition ofjoint and several liability, such a completelyfaultless plaintiff, rather than a wrongdoingdefendant, would be forced to bear a portion of theloss if any one of the concurrent tortfeasors shouldprove financially unable to satisfy hisproportioned share of the damages.Moreover, even when a plaintiff is partially atfault for his own injury, a plaintiff's culpability isnot equivalent to that of a defendant. In thissetting, a plaintiff's negligence relates only to afailure to use due care for his own protection,while a defendant's negligence relates to a lack ofdue care for the safety of others. Although werecognized in Li that a plaintiff's self-directednegligence would justify reducing his recovery inproportion to his degree of fault for the accident, 2the fact remains that insofar as the plaintiff'sconduct creates only a risk of self-injury, suchconduct, unlike that of a negligent defendant, isnot tortious. (See PROSSER, LAW OF TORTS, supra,§ 65, p. 418.)Finally, from a realistic standpoint, we thinkthat AMA's suggested abandonment of the jointand several liability rule would work a serious andunwarranted deleterious effect on the practicalability of negligently injured persons to receiveadequate compensation for their injuries. One ofthe principal by-products of the joint and severalliability rule is that it frequently permits an injuredperson to obtain full recovery for his injuries evenwhen one or more of the responsible parties do nothave the financial resources to cover their liability.In such a case the rule recognizes that fairnessdictates that the "wronged party should not bedeprived of his right to redress," but that "[t]hewrongdoers should be left to work out betweenthemselves any apportionment." (Summers v. Tice(1948) 33 Cal. 2d 80, 88, 199 P.2d 1, 5.) The Lidecision does not detract in the slightest from thispragmatic policy determination.For all of the foregoing reasons, we rejectAMA's suggestion that our adoption ofcomparative negligence logically compels theabolition of joint and several liability ofconcurrent tortfeasors....2A question has arisen as to whether our Li opinion, inmandating that a plaintiff's recovery be diminished inproportion to the plaintiff's negligence, intended that theplaintiff's conduct be compared with each individualtortfeasor's negligence, with the cumulative negligence ofall named defendants or with all other negligent conductthat contributed to the injury. The California BAJICommittee, which specifically addressed this issue after Li,concluded that "the contributory negligence of the plaintiffmust be proportioned to the combined negligence ofplaintiff and of all the tortfeasors, whether or not joined asparties ... whose negligence proximately caused orcontributed to plaintiff's injury." (Use note, BAJI No.14.90 (5th ed. 1975 pocket pt.) p. 152.) We agree with thisconclusion, which finds support in decisions from othercomparative negligence jurisdictions. (See, e.g., Pierringerv. Hoger (1963) 21 Wis. 2d 182, 124 N.W.2d 106; Walkerv. Kroger Grocery & Baking Co. (1934) 214 Wis. 519, 252N.W. 721, 727-728.) In determining to what degree theinjury was due to the fault of the plaintiff, it is logicallyessential that the plaintiff's negligence be weighed againstthe combined total of all other causative negligence;moreover, inasmuch as a plaintiff's actual damages do notvary by virtue of the particular defendants who happen tobe before the court, we do not think that the damages3. Upon reexamination of the commonlaw equitable indemnity doctrine in light ofthe principles underlying Li, we concludethat the doctrine should be modified topermit partial indemnity amongconcurrent tortfeasors on a comparativefault basis.Although, as discussed above, we are notpersuaded that our decision in Li calls for afundamental alteration of the rights of injuredplaintiffs vis a vis concurrent tortfeasors throughthe abolition of joint and several liability, thequestion remains whether the broad principlesunderlying Li warrant any modification of thisstate's common law rules governing the allocationof loss among multiple tortfeasors. As we shallexplain, the existing California common lawwhich a plaintiff may recover against defendants who arejoint and severally liable should fluctuate in such amanner.AMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

§ B. JOINT AND SEVERAL LIABILITY 265equitable indemnity doctrine while amelioratinginequity and injustice in some extreme casessuffers from the same basic "all-or-nothing"deficiency as the discarded contributorynegligence doctrine and falls considerably short offulfilling Li's goal of "a system under whichliability for damage will be borne by those whosenegligence caused it in direct proportion to theirrespective fault." (13 Cal. 3d at p. 813, 119 Cal.Rptr. at p. 864, 532 P.2d at p. 1232.) Taking ourcue from a recent decision of the highest court ofone of our sister states, we conclude in line withLi's objectives that the California common lawequitable indemnity doctrine should be modifiedto permit a concurrent tortfeasor to obtain partialindemnity from other concurrent tortfeasors on acomparative fault basis.In California, as in most other Americanjurisdictions, the allocation of damages amongmultiple tortfeasors has historically been analyzedin terms of two, ostensibly mutually exclusive,doctrines: contribution and indemnification. Intraditional terms, the apportionment of lossbetween multiple tortfeasors has been thought topresent a question of contribution; indemnity, bycontrast, has traditionally been viewed asconcerned solely with whether a loss should beentirely shifted from one tortfeasor to another,rather than whether the loss should be sharedbetween the two. (See, e.g., Alisal Sanitary Dist. v.Kennedy (1960) 180 Cal. App. 2d 69, 74-75, 4Cal. Rptr. 379; Atchison, T.& S.F. Ry. Co. v.Franco (1968) 267 Cal. App. 2d 881, 886, 73 Cal.Rptr. 660.) As we shall explain, however, thedichotomy between the two concepts is moreformalistic than substantive, 3 and the commongoal of both doctrines, the equitable distribution ofloss among multiple tortfeasors, suggests a needfor a reexamination of the relationship of thesetwin concepts. (See generally Werner,Contribution and Indemnity in California (1969)57 CAL. L. REV. 490.)Early California decisions, relying on theancient law that "the law will not aid awrongdoer," embraced the then ascendantcommon law rule denying a tortfeasor any right to3As Judge Learned Hand observed more than a quarterof a century ago: "[I]ndemnity is only an extreme form ofcontribution." (Slattery v. Marra Bros. (2d Cir. 1951) 186F.2d 134, 138.)contribution whatsoever. (See, e.g., Dow v. SunsetTel. & Tel. Co. (1912) 162 Cal. 136, 121 P. 379.)In 1957, the California Legislature enacted a billto ameliorate the harsh effects of that "nocontribution" rule; this legislation did not,however, sweep aside the old rule altogether, butinstead made rather modest inroads into thecontemporary doctrine, restricting a tortfeasor'sstatutory right of contribution to a narrow set ofcircumstances. We discuss the effect of the 1957contribution legislation in more detail below; atthis point it is sufficient to note that the passage ofthe 1957 legislation had the effect of foreclosingany evolution of the California common lawcontribution doctrine beyond its pre-1957 "nocontribution" state. Over the past two decades,common law developments with respect to theallocation of loss between joint tortfeasors in thisstate have all been channeled through theequitable indemnity doctrine.* * *Because of the all-or-nothing nature of theequitable indemnity rule, courts were, from thebeginning, understandably reluctant to shift theentire loss to a party who was simply slightlymore culpable than another. As a consequence,throughout the long history of the equitableindemnity doctrine courts have struggled to findsome linguistic formulation that would provide anappropriate test for determining when the relativeculpability of the parties is sufficiently disparate towarrant placing the entire loss on one party andcompletely absolving the other.A review of the numerous California cases inthis area reveals that the struggle has largely beena futile one. (Compare and contrast, e.g., Gardnerv. Murphy (1975) 54 Cal. App. 3d 164, 168-171,126 Cal. Rptr. 302; Niles v. City of San Rafael(1974) 42 Cal. App. 3d 230, 237-240, 116 Cal.Rptr. 733; Kerr Chemicals, Inc. v. Crown Cork &Seal Co. (1971) 21 Cal. App. 3d 1010, 1014-1017,199 Cal. Rptr. 162; Pearson Ford Co. v. FordMotor Co. (1969) 273 Cal. App. 2d 269, 271-278,78 Cal. Rptr. 279; Aerojet General Corp. v. D.Zelinsky & Sons (1967) 249 Cal. App. 2d 604,607-612, 57 Cal. Rptr. 701; Herrero v. Atkinson(1964) 227 Cal. App. 2d 69, 73-78, 38 Cal. Rptr.490;...As one Court of Appeal has charitably stated:"The cases are not always helpful in determiningwhether equitable indemnity lies. The test[s]AMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

266 6. MULTIPLE TORTFEASORSutilized in applying the doctrine are vague. Someauthorities characterize the negligence of theindemnitor as "active," "primary," or "positive,"and the negligence of the indemnitee as "passive,""secondary," or "negative." [Citations.] Otherauthorities indicate that the application of thedoctrine depends on whether the claimant'sliability is "primary," "secondary," "constructive,"or "derivative." [Citations.] These formulationshave been criticized as being artificial and aslacking the objective criteria desirable forpredictability in the law. [Citations.]" (Atchison,T.& S.F. Ry. Co. v. Franco, supra, 267 Cal. App.2d 881, 886, 73 Cal. Rptr. 660, 664.)Indeed, some courts, as well as someprominent commentators, 4 after reviewing thewelter of inconsistent standards utilized in theequitable indemnity realm, have candidlyeschewed any pretense of an objectively definableequitable indemnity test....[The court also addressed complaints by amicicuriae that adoption of apportioned liability wouldundermine public policy favoring settlements. Thecourt concluded "that a plaintiff's recovery fromnonsettling tortfeasors should be diminished onlyby the amount that the plaintiff has recovered in agood faith settlement," rather than reducing theamount according to the settling tortfeasor'sproportion of responsibility. The implications ofthis position are considered below in JusticeClark's dissent. - ed.]4Dean Prosser was at a loss in attempting to state theapplicable standard: "Out of all this, it is extremelydifficult to state any general rule or principle as to whenindemnity will be allowed and when it will not. It has beensaid that it is permitted only where the indemnitor hasowed a duty of his own to the indemnitee; that it is basedon a "great difference" in the gravity of the fault of the twotortfeasors; or that it rests upon a disproportion ordifference in character of the duties owed by the two to theinjured plaintiff. Probably none of these is the completeanswer, and, as is so often the case in the law of torts, noone explanation can be found which will cover all thecases. Indemnity is a shifting of responsibility from theshoulders of one person to another; and the duty toindemnify will be recognized in cases where communityopinion would consider that in justice the responsibilityshould rest upon one rather than the other. This may bebecause of the relation of the parties to one another, andthe consequent duty owed; or it may be because of asignificant difference in the kind or quality of theirconduct." (Fns. omitted.) (PROSSER, LAW OF TORTS, supra,§ 52, p. 313.)6. ConclusionIn Li v. Yellow Cab Co., supra, this courtexamined and abandoned the time-worncontributory negligence rule which completelyexonerated a negligent defendant whenever aninjured plaintiff was partially at fault for theaccident, recognizing with Dean Prosser theindefensibility of a doctrine which "places uponone party the entire burden of a loss for which twoare, by hypothesis, responsible." (13 Cal. 3d at p.810, fn. 3, 119 Cal. Rptr. at p. 862, 532 P.2d at1230 (quoting PROSSER, LAW OF TORTS, supra, §67, p. 433).)In the instant case we have concluded that theforce of Li's rationale applies equally to the allocationof responsibility between two or morenegligent defendants and requires a modificationof this state's traditional all-or-nothing commonlaw equitable indemnity doctrine. Again, weconcur with Dean Prosser's observation in arelated context that "[t]here is obvious lack ofsense and justice in a rule which permits the entireburden of a loss, for which two defendants were ...unintentionally responsible, to be shouldered ontoone alone, ... while the latter does scot free."(PROSSER, LAW OF TORTS, supra, § 50, p. 307.)From the crude all-or-nothing rule of traditionalindemnity doctrine, and the similarly inflexibleper capita division of the narrowly circumscribedcontribution statute, we have progressed to themore refined stage of permitting the jury toapportion liability in accordance with thetortfeasors' comparative fault.Accordingly, we hold that under the commonlaw equitable indemnity doctrine a concurrenttortfeasor may obtain partial indemnity fromcotortfeasors on a comparative fault basis.Let a peremptory writ of mandate issuedirecting the trial court (1) to vacate its orderdenying AMA leave to file its proposed crosscomplaint,and (2) to proceed in accordance withthe views expressed in this opinion. Each partyshall bear its own costs.BIRD, C.J., and MOSK, RICHARDSON,MANUEL and SULLIVAN (Retired AssociateJustice of the Supreme Court sitting underassignment by the Chairperson of the JudicialCouncil), JJ., concur.CLARK, Justice, dissentingAMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

§ B. JOINT AND SEVERAL LIABILITY 267IRepudiating the existing contributorynegligence system and adopting a system ofcomparative negligence, this court in Li v. YellowCab Co. (1975) 13 Cal. 3d 804, 119 Cal. Rptr.858, 532 P.2d 1226, repeatedly like the tolling bellenunciated the principle that the extent of liabilitymust be governed by the extent of fault. Thus, thecourt stated, "the extent of fault should govern theextent of liability" (id., at p. 811, 119 Cal. Rptr. atp. 863, 532 P.2d at p. 1231), "liability for damagewill be borne by those whose negligence caused itin direct proportion to their respective fault" (id.,at p. 813, 119 Cal. Rptr. at p. 864, 532 P.2d at p.1232), and "the fundamental purpose of (the ruleof pure comparative negligence) shall be to assignresponsibility and liability for damage in directproportion to the amount of negligence of each ofthe parties" (id., at p. 829, 119 Cal. Rptr. at p. 875,532 P.2d at p. 1243). And in a cacophony ofemphasis this court explained that the "basicobjection to the doctrine (of contributorynegligence) grounded in the primal concept that ina system in which liability is based on fault, theextent of fault should govern the extent of liabilityremains irresistible to reason and all intelligentnotions of fairness." (Id., at p. 811, 119 Cal. Rptr.at p. 863, 532 P.2d at p. 1231.)Now, only three years later, the majority ofmy colleagues conclude that the Li principle is notirresistible after all. Today, in the first decision ofthis court since Li explaining the operation of theLi principle, they reject it for almost all casesinvolving multiple parties.The majority reject the Li principle in twoways. First, they reject it by adopting joint andseveral liability holding that each defendantincluding the marginally negligent one will beresponsible for the loss attributable to hiscodefendant's negligence. To illustrate, if weassume that the plaintiff is found 30 percent atfault, the first defendant 60 percent, and a seconddefendant 10 percent, the plaintiff under themajority's decision is entitled to a judgment for 70percent of the loss against each defendant, and thedefendant found only 10 percent at fault may haveto pay 70 percent of the loss if his codefendant isunable to respond in damages.The second way in which the majority rejectLi's irresistible principle is by its settlement rules.Under the majority opinion, a good faithsettlement releases the settling tortfeasor fromfurther liability, and the "plaintiff's recovery fromnonsettling tortfeasors should be diminished onlyby the amount that the plaintiff has actuallyrecovered in a good faith settlement, rather thanby an amount measured by the settling tortfeasor'sproportionate responsibility for the injury." (Ante,p. 199 of 146 Cal. Rptr. ) The settlement rulesannounced today may turn Li's principle upsidedown the extent of dollar liability may end up ininverse relation to fault.Whereas the joint and several liabilityrules violate the Li principle when one or moredefendants are absent or unable to respond indamages, the settlement rules will ordinarilypreclude effecting the majority's principle in caseswhen all defendants are involved in the litigationand are solvent. To return to my 30-60-10illustration and further assuming both defendantsare solvent, the plaintiff is ordinarily eager tosettle quickly to avoid the long delay incident totrial. Further, he will be willing to settle witheither defendant because under the majority'ssuggested rules, he may then pursue the remainingdefendant for the balance of the recoverable loss(70 percent) irrespective whether the remainingdefendant was 10 percent at fault or 60 percent atfault. The defendants' settlement postures willdiffer substantially. Realizing the plaintiff is eagerfor quick recovery and is capable of pursuing thecodefendant, the defendant 60 percent liable forthe loss will be prompted to offer a sumsubstantially below his share of fault, probablypaying 20 to 40 percent of the loss. The defendantonly 10 percent at fault will be opposed to suchsettlement, wishing to limit his liability. Tocompete with his codefendant in settlement offershe will be required to offer substantially in excessof his 10 percent share of the loss, againfrustrating the Li principle that the extent ofliability should be governed by the extent of fault.Should he fail to settle, the 10 percent at faultdefendant runs the risk that his codefendant willsettle early for perhaps half of his own liability,while the lesser negligent person must eventuallypay the remainder, not only frustrating the Liprinciple but turning it upside down. In any event,it is extremely unlikely he can settle for his 10percent share. 55In addition, the policy in favor of settlement will befrustrated by the majority's rule that the plaintiff's recoveryagainst nonsettling tortfeasors should be diminished onlyAMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

268 6. MULTIPLE TORTFEASORSQuestions and Notes1. The rule of joint and several liabilityreceived severe criticism by the proponents of tortreform. As of 1986, fifteen states had modified therule of joint and several liability. See PROSSER &KEETON, § 84 (1988 Supp.). Similar issues areraised in the next section on joint tortfeasors.2. An excellent resource for resolvingcomparative negligence issues is V. SCHWARTZ,COMPARATIVE NEGLIGENCE (4th ed. 2002, withannual supplements).3. Another resource you may wish to consultis DeWolf, Several Liability and the Effect ofSettlement on Claim Reduction, 23 GONZ. L.REV. 37, 38-45 (1987/88).by the amount recovered in a good faith settlement ratherthan by settling tortfeasor's proportionate responsibility.(Ante, p. 604.) As the majority recognize: "Few thingswould be better calculated to frustrate (section 877's)policy, and to discourage settlement of disputed tortclaims, than knowledge that such a settlement lackedfinality and would lead to further litigation with one's jointtortfeasors, and perhaps further liability." (Id.) Settlementby one tortfeasor is not going to compel the othertortfeasor to withdraw his cross-complaint for total orpartial indemnity. Rather there will be a claim of bad faithbecause if the jury awards the plaintiff all of the damagessought and concludes that the settling tortfeasor shouldbear the lion's share of the responsibility for the laws, thesettling tortfeasor would have escaped for a small fractionof his actual liability. This alone, although notdeterminative, would indicate bad faith. (River GardenFarms, Inc. v. Superior Court (1973) 26 Cal. App. 3d 986,997, 103 Cal. Rptr. 498 ("price is the immediate signal forthe inquiry into good faith").)AMERICAN MOTORCYCLES ASS’N V. SUPERIOR COURT

§ B. JOINT AND SEVERAL LIABILITY 269§ C. The Effect of SettlementIntroductory Note. When the plaintiffenters into a settlement with only one defendant(as distinguished from settling with all of them),there must be a determination of the amount bywhich the liability of the remaining defendant(s) isreduced. One possibility is simply to deduct thedollar amount (sometimes called in the statute the“consideration”) received by the plaintiff inexchange for the release that the plaintiff gives tothe settling defendant. Typically a defendant willconsider this inadequate. The settling defendantmay be primarily responsible for the plaintiff‟sinjury, but be unable to pay more than a modestamount. If the plaintiff is permitted to recovereverything from the non-settling defendant exceptwhat the settling defendants have already paid, the“last one standing” may get hit with adisproportionate share of the liability. Instead,many jurisdictions have adopted a differentsystem, in which the reduction of the plaintiff‟sclaim is in proportion to the percentage share offault as allocated by the jury. Thus, if thedefendant settles with Defendant A for $50,000,and later recovers a judgment against Defendant Bafter establishing damages in the amount of$500,000, the liability of Defendant B will bedetermined by deducting Defendant A‟s share ofthe liability. For example, if the jury determinesthat Defendant A was 60% at fault in causing theplaintiff‟s injury, Defendant B would owe$500,000 minus 60% of the damages, or a netjudgment against Defendant B of $200,000.Contrast that result with the previous method(sometimes called the “dollar method”), whichwould have resulted in a judgment againstDefendant B of $450,000.The following case describes the resultunder a “percentage share” approach, but withsome unusual facts.WASHBURN v. BEATT EQUIPMENTCOMPANY120 Wash.2d 246, 840 P.2d 860 (1992)BRACHTENBACH, Justice.This appeal by defendant is from a judgmentrendered upon special jury verdicts. The plaintiffsare Norman Washburn and his wife Sharon. Mr.Washburn was extensively burned andpermanently injured when a standby propane fuelsystem caught fire and exploded. The juryawarded plaintiff 12 $6 million and his wife $2million.Plaintiffs cross-appeal the calculation of theamount of judgment against defendant, BeattEquipment Company, which was reduced to a totalof $5,670,000. We affirm except to modify theamount of the judgment, for reasons explainedhereafter.We briefly summarize the defendant'scontentions. (1) Defendant's principal argumenton liability is that plaintiffs' action is barred by astatute of repose. The statute of repose does notprotect a manufacturer. The jury was instructed onthe definition of "manufacturer". That instructionwas proposed by defendant. The jury, by specialverdict, found as a matter of fact that defendantwas a manufacturer, as defined by defendant.Further, by special verdict, the jury found thatdefendant's product was not reasonably safe, asdefined in an instruction to which no exceptionwas taken. (2) Defendant claims an abuse ofdiscretion in admitting certain photographs. (3)Defendant attacks the size of the verdicts. (4)Defendant claims error in a pretrial proceduralruling.On October 15, 1986, plaintiff NormanWashburn and a fellow Boeing employee, ScottieHolmes, were at a Boeing/Kent building to test astandby propane fuel system. The propane systemhad been in place since its construction andinstallation by defendant in 1969, but had neverbeen put to regular use. Plaintiff turned on thepropane and saw there was no pressure showingon the gauge. Before he could investigate,"everything just blew up." Verbatim Report ofProceedings (VRP) vol. 3, at 159.The building caught fire. Automobiles in the12When we refer to plaintiff in the singular, it is inreference to Norman Washburn.WASHBURN V. BEATT EQUIPMENT COMPANY

270 6. MULTIPLE TORTFEASORSadjacent parking lot caught fire and exploded.Fire was shooting out of the ground. There was awall of fire. VRP vol. 3, at 88, 160. Plaintiff andHolmes were both on fire; Holmes wascompletely aflame. Plaintiff "had fire on his head,his hair, his back." VRP vol. 3, at 91. Plaintiffrolled on the ground, but Holmes ran in circles.Plaintiff ran to help Holmes but caught on fireagain. Skin was falling off both of them. Plaintiffhelped put out the fire on Holmes and yelled forsomeone to turn off the propane to prevent thestorage tank from exploding. VRP vol. 3, at160-63.Holmes died 10 hours later. Plaintiff, withburns on 70 percent of his body, was hospitalizedfrom October 15 to December 24. He underwentsix surgeries during that confinement, and fouradditional surgeries over the next 16 months. Hisinjuries will be described in the discussion of thedamages award.The defendant Beatt Equipment Companywas known as Mid-Mountain Contractors when itcontracted to construct the pipeline system. Itspecialized in pipeline excavation andconstruction in the 11 western states. It hadexperience in installing gas pipelines, having doneabout $150 million of work in Washington Statealone. Defendant's president agreed thatdefendant held itself out as an expert in installingpipelines. VRP vol. 5, at 305. Defendant becameinvolved in creation of the standby heating systemwhen a subcontract was awarded to it byPetrolane, which had a contract with Boeing toinstall a standby propane fuel system at its Kentfacility. Defendant was to supply all the pipingmaterial, do various finishing processes, and burythe pipeline. Exhibit 26.There was substantial evidence that defendantdid not comply with contract specifications anddid not meet industry standards. One experttestified, without objection, that these failures bydefendant caused the explosion. VRP vol. 6, at215. There was expert testimony that the pipe wassignificantly thinner than called for in thespecifications. VRP vol. 6, at 196; vol. 7, at 323.The pipe was not properly prepared before it waswelded, wrapped and coated. As a result corrosionwas inevitable. VRP vol. 7, at 322, 337-38. Thecoating which is applied to the welded andwrapped joints is critical to protection againstcorrosion. The specifications called for a coal tarenamel; defendant used cheaper, less durable andmore permeable asphalt coating, and applied athickness roughly a third less than specified. VRPvol. 5, at 273-83. The thinner coating would"definitely decrease the life of the coating." VRPvol. 5, at 282-83.A coatings expert testified, without objection,that the improper coating material, applied at lessthickness than specified, contributed to thecorrosion which caused the explosion. VRP vol.5, at 283.The coating was damaged before the pipe wasburied. VRP vol. 6, at 204. The backfill materialdid not meet specifications; consequently chunksof asphalt material damaged the coating. This wasa very important defect. VRP vol. 6, at 201-02,205. The experts testified that the installation wassubstandard, and that the variations from thespecifications and industry standards were"[g]reatly significant." VRP vol. 6, at 199, 211.The experts testified, without objection, that thesedeficiencies were the proximate cause of theexplosion.* * *Share of Verdict to Be PaidPrior to trial three defendants settled and werereleased by plaintiffs. Petrolane, Inc., paid$780,000 in settlement, Buckeye Gas ProductsCompany paid $520,000, and Washington NaturalGas paid $210,000. As required by RCW4.22.070(1), the jury in this case apportioned faultamong all entities causing plaintiffs' damages.The jury found that defendant Beatt was 80percent at fault, and that Petrolane, Inc., was 20percent at fault. The jury determined that BuckeyeGas Products Company, Washington Natural Gas,and other entities (expressly including Boeing)were not at fault.In a cross appeal, plaintiffs contend that thetrial court erred in calculating the amount of thejudgment against defendant Beatt. This issuearises because there is a fault-free plaintiff, anat-fault nonsettling defendant, and both at-faultand fault-free settling defendants. It is a complexissue of first impression under RCW 4.22.070.The trial court entered judgment against defendantBeatt by calculating 80 percent of the total verdictof $8 million, with a result of $6,400,000, andthen reducing that result by amounts paid bysettling fault-free entities, $730,000, for a netamount of $5,670,000.Initially, defendant contends that plaintiffs'WASHBURN V. BEATT EQUIPMENT COMPANY

§ C. THE EFFECT OF SETTLEMENT 271argument should not be considered since it wasnot presented to the trial court. "The appellatecourt may refuse to review any claim of errorwhich was not raised in the trial court." RAP2.5(a). Arguments or theories not presented to thetrial court will generally not be considered onappeal. Hansen v. Friend, 118 Wash.2d 476, 485,824 P.2d 483 (1992); In re Marriage of Tang, 57Wash. App. 648, 655, 789 P.2d 118 (1990).Plaintiffs agree that they did not argue theirinterpretation of relevant statutes to the trial court,but maintain that the trial court recognized theinterpretation as being a possible interpretation ofthe statute. Plaintiffs urge this court to considerthe issue in that the purpose of argument is toapprise the court of an issue, that the trial courthere recognized the issue, and that the bench andbar need this court's interpretation on this difficultissue.While new arguments are generally notconsidered on appeal, the purpose of RAP 2.5(a) ismet where the issue is advanced below and thetrial court has an opportunity to consider and ruleon relevant authority. Bennett v. Hardy, 113Wash.2d 912, 917, 784 P.2d 1258 (1990). In orderto decide how much defendant Beatt must pay, itis necessary to construe RCW 4.22.070. Therecord shows that plaintiffs clearly objected to thejudgment and the trial judge's comments show hewas aware of the construction of RCW 4.22.070now advanced by plaintiffs. Moreover, despiteplaintiffs' concession that they did not argue theirpresent interpretation of the statute to the trialcourt, part of the argument they now make wasadvanced to the trial court (regarding whether thetrial court erred by allowing a credit, or offset,against the judgment for the amount paid bysettling fault-free entities). Clerk's Papers, at1005-14. We conclude the argument wasadequately presented to the trial court; we willreview the issue.Washington's rule before the tort reform act of1986 was joint and several liability of concurrentand successive tortfeasors. Peck, Washington'sPartial Rejection and Modification of the CommonLaw Rule of Joint and Several Liability, 62 WASH.L. REV. 233, 235-36 (1987). Where liability wasjoint and several, each tortfeasor was liable for theentire harm and the injured party could sue one orall of the tortfeasors to obtain a full recovery.Seattle-First Nat'l Bank v. Shoreline Concrete Co.,91 Wash.2d 230, 234-36, 588 P.2d 1308 (1978).The rule was codified at RCW 4.22.030, whichprior to the tort reform act of 1986 provided that"[i]f more than one person is liable to a claimanton an indivisible claim for the same injury, deathor harm, the liability of such persons shall be jointand several." See Laws of 1981, ch. 27, § 11.The joint and several liability rule developedwhen another common law rule provided thatcontributory negligence on the part of the plaintiff,no matter how slight, was a complete bar torecovery. "Conceptually, the question waswhether a totally innocent plaintiff should bepermitted to recover the full amount of his or herdamages from a wrongdoer whose conduct hadconcurred with that of another wrongdoer toproduce a single and indivisible injury or causallyunallocable harm." Peck, 62 WASH. L. REV. at236.At the common law, contribution was notallowed between joint tortfeasors; however, thisrule was increasingly subject to criticism, and in1981 the right to contribution was established inWashington with the basis for contribution beingthe comparative fault of the tortfeasors. RCW4.22.040, .050, .060. However, where there wasno joint and several liability, there was no right tocontribution. RCW 4.22.050; George v.Parke-Davis, 107 Wash.2d 584, 601, 733 P.2d 507(1987); Glass v. Stahl Specialty Co., 97 Wash.2d880, 886-87, 652 P.2d 948 (1982).The rule that plaintiffs' contributorynegligence was a complete bar to recovery, likethe no-contribution rule, was also subject tocriticism. In 1973 comparative negligence wasadopted in Washington, under a "pure"comparative negligence scheme which allows aplaintiff to recover some damages even ifplaintiff's fault is greater than that of defendant's.Peck, 62 WASH. L. REV. 233, 235-37(summarizing development of the law).Largely due to the adoption of thecomparative negligence rule, an argumentdeveloped against joint and several liability.Given that plaintiff's negligence was no longer abar to recovery, it was argued that it was unjust toimpose joint and several liability on a tortfeasorwhose wrong combined with that of plaintiff andothers to cause the harm. "In other words,responsibility for harm done should be distributedin proportion to the fault of all of the partiesinvolved and not governed by concepts ofcausation." Peck, 62 WASH. L. REV. at 238.In addition to this argument, concerns aboutaffordable liability insurance were voiced to theWASHBURN V. BEATT EQUIPMENT COMPANY

272 6. MULTIPLE TORTFEASORSLegislature. See Laws of 1986, ch. 305, § 100. Asa result, RCW 4.22.030 was amended to providethat joint and several liability is the rule forliability on an indivisible claim where there areconcurrent and successive tortfeasors "[e]xcept asotherwise provided in RCW 4.22.070 ...". RCW4.22.070 was enacted as part of the tort reform actof 1986.Thus, to decide how much of the $8 millionverdict defendant Beatt must pay, we mustexamine RCW 4.22.070. Our goal is to construethe statute to give effect to the intent of theLegislature. Yakima v. International Ass'n of FireFighters, Local 469, 117 Wash.2d 655, 669, 818P.2d 1076 (1991). We look for intent as it isexpressed in the language of the statute. DraperMach. Works, Inc. v. Department of NaturalResources, 117 Wash.2d 306, 313, 815 P.2d 770(1991). Statutes should be read as a whole.Avlonitis v. Seattle Dist. Court, 97 Wash.2d 131,138, 641 P.2d 169, 646 P.2d 128 (1982).Particularly in this case, the sections of RCW4.22.070 must be carefully read together becauseterms of art found in some sections are explainedin other sections.RCW 4.22.070(1) and (1)(b) provide:(1) In all actions involving fault of morethan one entity, the trier of fact shall determine thepercentage of the total fault which is attributableto every entity which caused the claimant'sdamages, including the claimant or personsuffering personal injury or incurring propertydamage, defendants, third-party defendants,entities released by the claimant, entities immunefrom liability to the claimant and entities with anyother individual defense against the claimant.Judgment shall be entered against each defendantexcept those who have been released by theclaimant or are immune from liability to theclaimant or have prevailed on any other individualdefense against the claimant in an amount whichrepresents that party's proportionate share of theclaimant's total damages. The liability of eachdefendant shall be several only and shall not bejoint except:....(b) If the trier of fact determines that theclaimant or party suffering bodily injury orincurring property damages was not at fault,the defendants against whom judgment isentered shall be jointly and severally liable forthe sum of their proportionate shares of theclaimants [sic] total damages.From this part of RCW 4.22.070, it is clearthat several liability is now intended to be thegeneral rule. 13 The statute evidences legislativeintent that fault be apportioned and that generallyan entity be required to pay that entity'sproportionate share of damages only. The statutealso evidences legislative intent that certainentities' share of fault not be at all recoverable by aplaintiff; for example, the proportionate shares ofimmune parties.However, under RCW 4.22.070(1)(b), jointand several liability exists where there is afault-free plaintiff. Significantly, however, theform of joint and several liability which existswhere there is a fault-free plaintiff is not, underRCW 4.22.070, the same as the joint and severalliability which existed prior to the tort reform actof 1986. Where, prior to the tort reform act of1986, "pure" joint and several liability enabled aplaintiff to sue one tortfeasor and recover all of hisor her damages from one of multiple tortfeasors,RCW 4.22.070(1) and (1)(b) do not permit that.Under RCW 4.22.070(1)(b), only defendantsagainst whom judgment is entered are jointly andseverally liable and only for the sum of theirproportionate shares of the total damages. Adefendant against whom judgment is entered isspecifically defined by RCW 4.22.070(1) as "eachdefendant except those who have been released bythe claimant or are immune from liability to theclaimant or have prevailed on any other individualdefense ...". Thus, settling, released defendants donot have judgment entered against them within themeaning of RCW 4.22.070(1), and therefore arenot jointly and severally liable defendants.The only jointly and severally liable defendanthere is defendant Beatt. Petrolane, Inc., is not ajointly and severally liable defendant because itwas released.RCW 4.22.070(2) provides:13If a defendant is jointly and severallyliable under one of the exceptions listed inWhile RCW 4.22.030 suggests that RCW 4.22.070 isan exception to a general rule, RCW 4.22.070 is in fact anexception that has all but swallowed the general rule.Harris, Washington's 1986 Tort Reform Act: Partial TortSettlements After the Demise of Joint and Several Liability,22 GONZ. L. REV. 67, 73 (1986-1988).WASHBURN V. BEATT EQUIPMENT COMPANY

§ C. THE EFFECT OF SETTLEMENT 273subsections (1)(a) or (1)(b) of this section,such defendant's rights to contributionagainst another jointly and severally liabledefendant, and the effect of settlement byeither such defendant, shall be determinedunder RCW 4.22.040, 4.22.050, and4.22.060.Defendant claims that RCW 4.22.070(2)applies here and directs that RCW 4.22.060 beapplied. RCW 4.22.060(2) provides that a claimof a releasing person against other persons isreduced by the amount of the settlement ifreasonable. Defendant argues for application ofthis provision for a credit, or offset, against what anonsettling defendant has to pay of a total verdict.Under RCW 4.22.070(2), however, ifdefendants are jointly and severally liable undersubsection (1)(a) or (1)(b), then those defendantshave rights of contribution as to each other, RCW4.22.040, .050, and the effect of a settlement bysuch a jointly and severally liable defendant is tobe determined under RCW 4.22.060. By its terms,RCW 4.22.070 restricts credits, or offsets, byamounts paid by settling defendants to amountspaid by jointly and severally liable settlingdefendants. In other words, where there is afault-free plaintiff, RCW 4.22.070(1), (1)(b) and(2) direct application of RCW 4.22.060 only ifthere are jointly and severally liable defendants.Thus, under the plain language of the statute theeffect of settlement statute (RCW 4.22.060) doesnot apply in the circumstances here because thereare no settling jointly and severally liabledefendants.Plaintiffs argue, however, that RCW4.22.070(2) is internally inconsistent with RCW4.22.070(1)(b). They contend that by referring tojointly and severally liable settling defendants,RCW 4.22.070(2) is inconsistent with that part ofsubsection (1)(b) which speaks only of joint andseveral liability with respect to defendants againstwhom judgment is entered.This argument simply overlooks the plainlanguage of subsection (2). That subsectionspeaks of defendants who are jointly or severallyliable under either RCW 4.22.070(1)(a) or (1)(b).If liability is under (1)(a) (not the case here),liability is premised on parties who "were actingin concert or when a person was acting as an agentor servant of the party." Liability under subsection(1)(a) is joint and several. With this in mind, it iseasy to see why RCW 4.22.070(2) refers to thepossibility of jointly and severally liable settlingdefendants. Where liability is premised onsubsection (1)(a), one of two parties acting inconcert, or in agency situations, can settle whilestill being a jointly and severally liable defendant.Further, plaintiffs appear to overlook thepossibility of RCW 4.22.070(2) applying topostjudgment settlements.There is thus no inconsistency between RCW4.22.070(2) and subsection (1)(b), contrary toplaintiffs' position, and it is clearly possible togive meaningful effect to all the statutorylanguage.How much of the total verdict must defendantBeatt pay? Under RCW 4.22.070(1) judgment isentered against a defendant "in an amount whichrepresents that party's proportionate share of theclaimant's total damages." The jury founddefendant 80 percent at fault. Beatt must pay 80percent of the total verdict. There are no otherjointly and severally liable defendants (thoseagainst whom judgment has been entered).Defendant Beatt is entitled to no credit or offsetfor any amounts paid by any settling entities,whether fault-free or at-fault, because none ofthose entities are jointly and severally liabledefendants within the meaning of the expresslanguage of RCW 4.22.070. RCW 4.22.070(2)does not apply, and thus does not direct that RCW4.22.040, .050, or .060 is to be applied. Had therebeen more than one defendant against whomjudgment was entered according to RCW4.22.070(1), then, as among those defendants,there would have been joint and several liability.If any settling defendants were jointly andseverally liable, then RCW 4.22.070(2) wouldhave been applicable.As a policy matter, defendant argues that ifthere is no reduction from defendant'sproportionate share for amounts paid by settlingentities, plaintiff may recover more than plaintiff'sactual damages, in contravention of policyfavoring only one full recovery for plaintiff.We note, however, first, that a plaintiff suingonly one defendant is in the same position. If theplaintiff settles for more than what a trier of factmight ultimately determine total damages are,plaintiff has more than "one full recovery".Similarly, a plaintiff suing only one defendant mayreceive less than total damages as a result of thesettlement, also a possibility under our holdinghere. While plaintiff has the possibility ofWASHBURN V. BEATT EQUIPMENT COMPANY

274 6. MULTIPLE TORTFEASORSobtaining a seeming windfall, plaintiff also bearsthe burden of the possibility of less than fullrecovery. Unlike the law existing before the tortreform act of 1986, under which a solvent jointlyand severally liable tortfeasor might be required tobear the burden of insolvency of other tortfeasors,the law now puts a heavier burden on the plaintiffwho settles with an entity for an amount less thanthat entity's share of fault as determined by thetrier of fact.The truth is, very few cases result in plaintiffobtaining exactly one full recovery, no more andno less, regardless of the method of crediting, oroffsetting, used.Second, defendant is not harmed and cannotcomplain that it is being asked to pay more than itsshare of damages resulting from its share of fault.See Duncan v. Cessna Aircraft Co., 665 S.W.2d414, 431 (Tex.1984).Amicus Washington State Trial LawyersAssociation (WSTLA) argues that settlementsshould be encouraged, and that they will beencouraged if the sum of the proportionate sharesin RCW 4.22.070(1)(b) includes the shares ofsettling at-fault entities, with judgment againstnonsettling defendant(s) offset by the amount ofany settlement with at-fault entities. WSTLAreasons that potentially fault-free plaintiffs will beinclined to settle because they will know inadvance of trial the consequences of settlementand will not bear the entire risk of an adversesettlement. WSTLA also reasons that sincenonsettling defendants will bear the risk of beingresponsible for the proportionate shares of at-faultsettling entities, nonsettling defendants will have astake in a reasonableness hearing in much thesame way as before RCW 4.22.070 was enacted.For three reasons, this argument isunconvincing. First, RCW 4.22.070(1) providesthat "[j]udgment shall be entered against eachdefendant except those who have been released bythe claimant ...". (Italics ours.) RCW4.22.070(1)(b) provides that if the plaintiff isfound to be fault-free, "the defendants againstwhom judgment is entered shall be jointly andseverally liable for the sum of their proportionateshares of the claimants [sic ] total damages."Under these provisions, the proportionate share ofa released entity is not part of the sum ofproportionate shares referenced in RCW4.22.070(1)(b). See Peck, 62 WASH. L. REV. 233,243; Harris, Washington's 1986 Tort Reform Act:Partial Tort Settlements After the Demise of Jointand Several Liability, 22 GONZ. L. REV. 67, 91(1986-1988).Second, WSTLA's argument appears to putthe cart before the horse, arguing the necessity ofdefendant's involvement in reasonablenesshearings without demonstrating the necessity ofthe hearings themselves. We do not address thelatter issue, but note that WSTLA'a policyargument assumes their necessity. Deciding thenecessity of reasonableness hearings must awaitanother day.Third, while it can be said in advance of trialthat a plaintiff may be potentially fault free, thatplaintiff may in fact be found by the trier of fact tobe partially at fault. Should that be the case, and ifRCW 4.22.070(1)(a) and (3) are inapplicable, thenliability in the case of a single indivisible harmwill be several only. In such circumstances aplaintiff will bear the risk of any adversesettlement (just as when there is only onedefendant, as explained above) with considerableuncertainty about the ultimate recovery followinga trial. Given such uncertainty built into RCW4.22.070's "general rule" of several liability, andthe fact that the question of plaintiff's fault is notdetermined by a trier of fact until close of trial, wehave considerable doubt that the Legislatureintended that the statute be construed according tothe policy argued by WSTLA, particularly in theface of statutory language which contradicts thatproposed construction. See generally Harris, 22GONZ.L.REV. 82 (Legislature has shown byprovisions of RCW 4.22.070 "that it is notconcerned with claimant uncertainty regarding theeffects of partial settlement").We remand with directions to the trial court tomodify the judgment entered against Beatt.* * *DORE, C.J., and UTTER, ANDERSEN,SMITH, DURHAM and JOHNSON, JJ., concur.DOLLIVER, Justice (concurring) (omitted).WASHBURN V. BEATT EQUIPMENT COMPANY

§ A. APPLYING THE CORRECT LIMITATION PERIOD 275Chapter 7Statutes of LimitationIntroductionOne of the most important defenses is that theplaintiff's claim was not filed within the statutoryperiod. This issue is sometimes covered, at least inpart, in a civil procedure course. See JAMES &HAZARD, CIVIL PROCEDURE, § 4.16. However, thestudent of torts should be aware that in addition tothe procedural issues there are peculiarities withinparticular fields of tort law where the statute hasbeen specifically modified as part of a "tortreform" package. For example, product liabilityand medical malpractice reform statutes containspecific provisions for modification of the statuteof limitations applying to such claims. SeeChapters Nine and Ten.In general, there are three important issues inresolving a statute of limitations case: (1) Whatlimitations period applies to this cause of action?(2) When did the limitation period accrue? and (3)Has the limitation period been tolled for anyreason?§ A. Applying the CorrectLimitation PeriodDICKENS v. PURYEAR302 N.C. 437, 276 S.E.2d 325, 335 (1981)EXUM, JusticePlaintiff's complaint is cast as a claim forintentional infliction of mental distress. It wasfiled more than one year but less than three yearsafter the incidents complained of occurred.Defendants moved for summary judgment beforeanswer was due or filed. Much of the factualshowing at the hearing on summary judgmentrelated to assaults and batteries committed againstplaintiff by defendants. Defendants' motions forsummary judgment were allowed on the groundthat plaintiff's claim was for assault and battery;therefore it was barred by the one-year statute oflimitations applicable to assault and battery. G.S.1-54(3).Thus this appeal raises two questions. First,whether defendants, by filing motions forsummary judgment before answer was due orfiled, properly raised the affirmative defense of thestatute of limitations. Second, whether plaintiff'sclaim is barred by the one-year statute oflimitations applicable to assault and battery. Wehold that defendants properly raised the limitationsdefense but that on its merits plaintiff's claim isnot altogether barred by the one-year statutebecause plaintiff's factual showing indicatesplaintiff may be able to prove a claim forintentional infliction of mental distress a claimwhich is governed by the three-year statute oflimitations. G.S. 1-52(5). We further hold thatsummary judgment was, nevertheless,appropriately entered as to the femme defendantinasmuch as plaintiff has made no showingsufficient to indicate he will be able to prove aclaim against her.The facts brought out at the hearing onsummary judgment may be briefly summarized:For a time preceding the incidents in questionplaintiff Dickens, a thirty-one year old man,shared sex, alcohol and marijuana with defendants'daughter, a seventeen year old high school student.On 2 April 1975 defendants, husband and wife,lured plaintiff into rural Johnston County, NorthCarolina. Upon plaintiff's arrival defendant EarlPuryear, after identifying himself, called out todefendant Ann Puryear who emerged from besidea nearby building and, crying, stated that she"didn't want to see that SOB." Ann Puryear thenleft the scene. Thereafter Earl Puryear pointed apistol between plaintiff's eyes and shouted "Ya'llcome on out." Four men wearing ski masks andarmed with nightsticks then approached fromWASHBURN V. BEATT EQUIPMENT COMPANY

276 7. STATUTES OF LIMITATIONbehind plaintiff and beat him into semiconsciousness.They handcuffed plaintiff to apiece of farm machinery and resumed striking himwith nightsticks. Defendant Earl Puryear, whilebrandishing a knife and cutting plaintiff's hair,threatened plaintiff with castration. During four orfive interruptions of the beatings defendant EarlPuryear and the others, within plaintiff's hearing,discussed and took votes on whether plaintiffshould be killed or castrated. Finally, after sometwo hours and the conclusion of a finalconference, the beatings ceased. Defendant EarlPuryear told plaintiff to go home, pull histelephone off the wall, pack his clothes, and leavethe state of North Carolina; otherwise he would bekilled. Plaintiff was then set free. 45Plaintiff filed his complaint on 31 March1978. It alleges that defendants on the occasionjust described intentionally inflicted mentaldistress upon him. He further alleges that as aresult of defendants' acts plaintiff has suffered"severe and permanent mental and emotionaldistress, and physical injury to his nerves andnervous system." He alleges that he is unable tosleep, afraid to go out in the dark, afraid to meetstrangers, afraid he may be killed, suffering fromchronic diarrhea and a gum disorder, unableeffectively to perform his job, and that he has lost$1000 per month income.On 28 April 1978 Judge Preston by orderextended the time in which defendants would berequired to file responsive pleadings or motionsuntil twenty days after the Court of Appealsdecided a case then pending before that court. 46Defendants, acting pursuant to this order, filed noanswer. On 7 September and 15 November 1978defendants filed, respectively, motions forsummary judgment. The motions made noreference to the statute of limitations nor did theycontest plaintiff's factual allegations. Judge45This same occurrence gave rise to a criminalconviction of defendant Earl Puryear for conspiracy tocommit simple assault. See State v. Puryear, 30 N.C. App.719, 228 S.E.2d 536, appeal dismissed, 291 N.C. 325, 230S.E.2d 678 (1976).46The order provided, in pertinent part: "Defendants areallowed until twenty (20) days following the filing of adecision by the North Carolina Court of Appeals in Byrd v.Hodges, 77 CVS 4422, Wake County, which case ispresently on appeal to that Court, to file responsivepleadings or motions herein."Braswell, after considering arguments of counsel,plaintiff's complaint, plaintiff's deposition andevidence in the criminal case arising out of thisoccurrence, 47 concluded that plaintiff's claim wasbarred by G.S. 1-54(3), the one-year statute oflimitations applicable to assault and battery. On 29March 1979 he granted summary judgment infavor of both defendants.IWe first address plaintiff's contention thatdefendants' motions for summary judgment wereprocedurally defective. Plaintiff argues initiallythat defendants' failure to file answer was fatal,procedurally, to the trial court's allowing themotions on statute of limitations grounds. Wedisagree.* * *Here plaintiff was not surprised by thelimitations defense and had full opportunity toargue and present evidence relevant to thelimitations question. Plaintiff's complaint is cast interms of the tort of intentional infliction of mentaldistress rather than assault and battery. Thisdemonstrates plaintiff's awareness that the statuteof limitations was going to be an issue. Plaintiffdid present evidence and briefs on the questionbefore Judge Braswell. Thus, as the Court ofAppeals said, "this affirmative defense was clearlybefore the trial court." Therefore defendants'failure expressly to mention this defense in theirmotions will not be held to bar the court's grantingthe motions on the limitations ground.We turn now to the merits of defendants'motions for summary judgment. Defendantscontend, and the Court of Appeals agreed, that thisis an action grounded in assault and battery.Although plaintiff pleads the tort of intentionalinfliction of mental distress, the Court of Appealsconcluded that the complaint's factual allegationsand the factual showing at the hearing onsummary judgment support only a claim forassault and battery. The claim was, therefore,barred by the one-year period of limitationsapplicable to assault and battery. Plaintiff, on theother hand, argues that the factual showing on the47See n.1, supra.IIDICKENS V. PURYEAR

§ A. APPLYING THE CORRECT LIMITATION PERIOD 277motion supports a claim for intentional inflictionof mental distress[,] a claim which is governed bythe three-year period of limitations. 48 At least,plaintiff argues, his factual showing is such that itcannot be said as a matter of law that he will beunable to prove such a claim at trial. We agreewith plaintiff's position.To resolve the question whether defendantsare entitled to summary judgment on the ground ofthe statute of limitations we must examine boththe law applicable to the entry of summaryjudgment and the law applicable to the torts ofassault and battery and intentional infliction ofmental distress. We think it better to begin with adiscussion of applicable tort law.ANorth Carolina follows common lawprinciples governing assault and battery. Anassault is an offer to show violence to anotherwithout striking him, and a battery is the carryingof the threat into effect by the infliction of a blow.Hayes v. Lancaster, 200 N.C. 293, 156 S.E. 530(1931); Ormond v. Crampton, 16 N.C. App. 88,191 S.E.2d 405, cert. denied, 282 N.C. 304, 192S.E.2d 194 (1972). The interest protected by theaction for battery is freedom from intentional andunpermitted contact with one's person; the interestprotected by the action for assault is freedom from48Although defendants argue that even the tort ofintentional infliction of mental distress is governed by theone-year statute of limitations, we are satisfied that it isnot. The one-year statute, G.S. 1- 54(3), applies to "libel,slander, assault, battery, or false imprisonment." As we goto some length in the opinion to demonstrate, the tort ofintentional infliction of mental distress is none of thesethings. Thus the rule of statutory construction embodied inthe maxim, expressio unius est exclusio alterius, meaningthe expression of one thing is the exclusion of another,applies. See Appeal of Blue Bird Taxi Co., 237 N.C. 373,75 S.E.2d 156 (1953). No statute of limitations addressesthe tort of intentional infliction of mental distress by name.It must, therefore, be governed by the more general threeyearstatute of limitations, G.S. 1-52(5), which applies to"any other injury to the person or rights of another, notarising on contract and not hereafter enumerated." Even ifwe had substantial doubt about which statute of limitationsapplies, and we do not, the rule would be that the longerstatute is to be selected. See, e.g., Payne v. Ostrus, 50 F.2d1039 (8th Cir. 1931); Matthews v. Travelers Indemnity Ins.Co., 245 Ark. 247, 432 S.W.2d 485 (1968); Scovill v.Johnson, 190 S.C. 457, 3 S.E.2d 543 (1939); Shew v. CoonBay Loafers, Inc., 76 Wash. 2d 40, 455 P.2d 359 (1969);see generally 51 AM. JUR. 2D Limitation of Actions § 63(1970).apprehension of a harmful or offensive contactwith one's person. McCracken v. Sloan, 40 N.C.App. 214, 252 S.E.2d 250 (1979); see alsoPROSSER, LAW OF TORTS §§ 9, 10 (4th ed. 1971)(hereinafter "PROSSER"). The apprehensioncreated must be one of an immediate harmful oroffensive contact, as distinguished from contact inthe future. As noted in State v. Ingram, 237 N.C.197, 201, 74 S.E.2d 532, 535 (1953), in order toconstitute an assault there must be:[A]n overt act or an attempt, or theunequivocal appearance of an attempt,with force and violence, to do someimmediate physical injury to the person ofanother....... The display of force or menace ofviolence must be such to cause thereasonable apprehension of immediatebodily harm. Dahlin v. Fraser, 206 Minn.476 (288 N.W. 851). (Emphasis supplied.)See also State v. Roberts, 270 N.C. 655,155 S.E.2d 303 (1967); State v. Johnson,264 N.C. 598, 142 S.E.2d 151 (1965).A mere threat, unaccompanied by an offer orattempt to show violence, is not an assault. State v.Daniel, 136 N.C. 571, 48 S.E. 544 (1904); State v.Milsaps, 82 N.C. 549 (1880). The damagesrecoverable for assault and battery include thosefor plaintiff's mental disturbance as well as forplaintiff's physical injury. Trogdon v. Terry, 172N.C. 540, 90 S.E. 583 (1916); Hodges v. Hall, 172N.C. 29, 89 S.E. 802 (1916); Bedsole v. AtlanticCoast Line R.R. Co., 151 N.C. 152, 65 S.E. 925(1909).Common law principles of assault and batteryas enunciated in North Carolina law are also foundin the RESTATEMENT (SECOND) OF TORTS (1965)(hereinafter "THE RESTATEMENT"). As noted in §29(1) of THE RESTATEMENT, "[t]o make the actorliable for an assault he must put the other inapprehension of an imminent contact." (Emphasissupplied.) The comment to § 29(1) states: "Theapprehension created must be one of imminentcontact, as distinguished from any contact in thefuture. `Imminent' does not mean immediate, inthe sense of instantaneous contact.... It meansrather that there will be no significant delay."Similarly, § 31 of THE RESTATEMENT provides that"[w]ords do not make the actor liable for assaultunless together with other acts or circumstancesthey put the other in reasonable apprehension ofan imminent harmful or offensive contact with hisperson." (Emphasis supplied.) The comment to §DICKENS V. PURYEAR

278 7. STATUTES OF LIMITATION31 provides, in pertinent part:a. Ordinarily mere words,unaccompanied by some act apparentlyintended to carry the threat into execution,do not put the other in apprehension of animminent bodily contact, and so cannotmake the actor liable for an assault underthe rule stated in § 21 [the section whichdefines an assault]. For this reason it iscommonly said in the decisions that merewords do not constitute an assault, or thatsome overt act is required. This is trueeven though the mental discomfort causedby a threat of serious future harm on thepart of one who has the apparent intentionand ability to carry out his threat may befar more emotionally disturbing thanmany of the attempts to inflict minorbodily contacts which are actionable asassaults. Any remedy for words which areabusive or insulting, or which createemotional distress by threats for thefuture, is to be found under §§ 46 and 47[those sections dealing with the interest infreedom from emotional distress].Illustration:1. A, known to be a resolute anddesperate character, threatens to waylay Bon his way home on a lonely road on adark night. A is not liable to B for anassault under the rule stated in § 21. Amay, however, be liable to B for theinfliction of severe emotional distress byextreme and outrageous conduct, underthe rule stated in § 46. (Emphasissupplied.)Again, as noted by PROSSER, § 10, p. 40,"[t]hreats for the future ... are simply not presentbreaches of the peace, and so never have fallenwithin the narrow boundaries of [assault]." Thusthreats for the future are actionable, if at all, not asassaults but as intentional inflictions of mentaldistress.The tort of intentional infliction of mentaldistress is recognized in North Carolina. Stanbackv. Stanback, 297 N.C. 181, 254 S.E.2d 611 (1979)."[L]iability arises under this tort when adefendant's `conduct exceeds all bounds usuallytolerated by decent society' and the conduct`causes mental distress of a very serious kind.'" Id.at 196, 254 S.E.2d at 622, quoting PROSSER, § 12,p. 56. In Stanback plaintiff alleged that defendantbreached a separation agreement between theparties. She further alleged, according to ouropinion in Stanback, "that defendant's conduct inbreaching the contract was `wilful, malicious,calculated, deliberate and purposeful' ... [and] that`she has suffered great mental anguish andanxiety' as a result of defendant's conduct inbreaching the agreement ... [and] that defendantacted recklessly and irresponsibly and `with fullknowledge of the consequences which wouldresult....'" Id. at 198, 254 S.E.2d at 622-23. Weheld in Stanback that these allegations were"sufficient to state a claim for what has becomeessentially the tort of intentional infliction ofserious emotional distress. Plaintiff has allegedthat defendant intentionally inflicted mentaldistress." Id. at 196, 254 S.E.2d at 621-22.The tort alluded to in Stanback is defined inTHE RESTATEMENT § 46 as follows:One who by extreme and outrageousconduct intentionally or recklessly causessevere emotional distress to another issubject to liability for such emotionaldistress, and if bodily harm to the otherresults from it, for such bodily harm.The holding in Stanback was in accord withTHE RESTATEMENT definition of the tort ofintentional infliction of mental distress. We nowreaffirm this holding.There is, however, troublesome dictum inStanback that plaintiff, to recover for this tort,"must show some physical injury resulting fromthe emotional disturbance caused by defendant'salleged conduct" and that the harm she sufferedwas a "foreseeable result." Id. at 198, 254 S.E.2dat 623. Plaintiff in Stanback did not allege that shehad suffered any physical injury as a result ofdefendant's conduct. We noted in Stanback,however, that "physical injury" had been given abroad interpretation in some of our earlier cases,e.g., Kimberly v. Howland, 143 N.C. 398, 403-04,55 S.E. 778, 780 (1906), where the Court said,The nerves are as much a part of thephysical system as the limbs, and in somepersons are very delicately adjusted, andwhen `out of tune' cause excruciatingagony. We think the general principles ofthe law of torts support a right of actionfor physical injuries resulting fromnegligence, whether wilful or otherwise,none the less strongly because theDICKENS V. PURYEAR

§ A. APPLYING THE CORRECT LIMITATION PERIOD 279physical injury consists of a wreckednervous system instead of lacerated limbs.We held in Stanback that plaintiff's "allegationthat she suffered great mental anguish and anxietyis sufficient to permit her to go to trial upon thequestion of whether the great mental anguish andanxiety (which she alleges) has caused physicalinjury." Stanback v. Stanback, supra, 297 N.C. at199, 254 S.E.2d at 623. We held, further, thatplaintiff's allegation that "defendant acted with fullknowledge of the consequences of his actions ...sufficiently indicated that the harm she sufferedwas a foreseeable result of his conduct." Id. at198, 254 S.E.2d at 623.After revisiting Stanback in light of the earlierauthorities upon which it is based and consideringan instructive analysis of our cases in the area byProfessor and former Dean of the University ofNorth Carolina Law School, Robert G. Byrd, 49 weare satisfied that the dictum in Stanback was notnecessary to the holding and in some respectsactually conflicts with the holding. We nowdisapprove it.If "physical injury" means something morethan emotional distress or damage to the nervoussystem, it is simply not an element of the tort ofintentional infliction of mental distress. As noted,plaintiff in Stanback never alleged that she hadsuffered any physical injury, yet we held that shehad stated a claim for intentional infliction ofmental distress. In Wilson v. Wilkins, 181 Ark. 137,25 S.W.2d 428 (1930), defendants came to thehome of the plaintiff at night and accused him ofstealing hogs. They told him that if he did notleave their community within 10 days they "wouldput a rope around his neck." Defendants' threatscaused the plaintiff to remove his family from thearea. Plaintiff testified that he was afraid theywould kill him if he did not leave and that hesuffered great mental agony and humiliationbecause he had been accused of something ofwhich he was not guilty. In sustaining a juryverdict in favor of plaintiff, the Arkansas SupremeCourt rejected defendants' contention that plaintiffwas required to show some physical injury beforehe could recover. The Court said, 181 Ark. 139, 25S.W.2d at 428:49The [defendants] rely upon the rule ...See generally Byrd, Recovery for Mental Anguish inNorth Carolina, 58 N.C. L. REV. 435 (1980).that in actions for negligence there can beno mental suffering where there has beenno physical injury.The rule is well settled in this state,but it has no application to willful andwanton wrongs and those committed withthe intention of causing mental distressand injured feelings. Mental sufferingforms the proper element of damages inactions for willful and wanton wrongs andthose committed with the intention ofcausing mental distress.Similarly, the question of foreseeability doesnot arise in the tort of intentional infliction ofmental distress. This tort imports an act which isdone with the intention of causing emotionaldistress or with reckless indifference to thelikelihood that emotional distress may result. Adefendant is liable for this tort when he "desires toinflict severe emotional distress ... (or) knows thatsuch distress is certain, or substantially certain, toresult from his conduct ... (or) where he actsrecklessly ... in deliberate disregard of a highdegree of probability that the emotional distresswill follow" and the mental distress does in factresult. RESTATEMENT § 46, Comment i, p. 77."The authorities seem to agree that if the tort iswilful and not merely negligent, the wrong-doer isliable for such physical injuries as mayproximately result, whether he could haveforeseen them or not." Kimberly v. Howland,supra, 143 N.C. at 402, 55 S.E. at 780.We are now satisfied that the dictum inStanback arose from our effort to conform theopinion to language in some of our earlier casesthe holdings of which led ultimately to ourrecognition in Stanback of the tort of intentionalinfliction of mental distress.The earliest of these cases is Kirby v. JulesChain Stores Corp., 210 N.C. 808, 188 S.E. 625(1936). This case involved a bill collector whoused highhanded collection tactics against plaintiffdebtor. In an effort to collect the debt defendantsaid to plaintiff, "By G , you are like all the rest ofthe damn deadbeats. You wouldn't pay when youcould.... If you are so damn low you won't pay, Iguess when I get the sheriff and bring him downhere you will pay then." Plaintiff, who waspregnant, became emotionally distraught and herevidence tended to show that her distress causedher child to be prematurely stillborn. This Courtsustained a verdict and judgment for the plaintiff.The Court recognized that earlier cases permittingDICKENS V. PURYEAR

280 7. STATUTES OF LIMITATIONrecovery under such circumstances required thatthere be a forcible trespass. Without decidingwhether a forcible trespass existed in the casebefore it the Court concluded that "[t]he gravamenof plaintiff's cause of action is trespass to theperson. (Citation omitted.) This may result froman injury either willfully or negligently inflicted."210 N.C. at 810, 188 S.E. at 626. The Court saidfurther, 210 N.C. at 812, 813, 188 S.E. at 627-28:"It is no doubt correct to say thatfright alone is not actionable, Arthur v.Henry, (157 N.C. 438, 73 S.E. 211) supra,but it is faulty pathology to assume thatnervous disorders of serious proportionsmay not flow from fear or fright. Hickeyv. Welch, 91 Mo. App., 4; 17 C.J., 838.Fear long continued wears away one'sreserve." `As a general rule, damages formere fright are not recoverable; but theymay be recovered where there is somephysical injury attending the cause of thefright, or, in the absence of physicalinjury, where the fright is of suchcharacter as to produce some physical ormental impairment directly and naturallyresulting from the wrongful act'SUTTON, J., in Candler v. Smith, 50 Ga.App., 667, 179 S.E., 395.If it be actionable willfully ornegligently to frighten a team by blowinga whistle, Stewart v. Lumber Co., (146N.C. 47, 59 S.E. 545) supra, or by beatinga drum, Loubz v. Hafner, (12 N.C. 185)supra, thereby causing a run-away andconsequent damage, it is not perceivedupon what logical basis of distinction thepresent action can be dismissed as in caseof nonsuit. Arthur v. Henry, supra.Kirby, rightly or wrongly, has been read torequire some physical injury in addition toemotional distress. See PROSSER § 12, p. 59, n.19.Statements that "fright" alone is not actionableand that the harm suffered must be a foreseeableresult of defendant's conduct appear in other casesrelied on in Stanback, all of which, in turn, rely onKirby. These are: Crews v. Finance Co., 271 N.C.684, 157 S.E.2d 381 (1967) (highhanded debtcollection efforts; held, plaintiff could recover forresulting nervousness, acute angina, and highblood pressure); Slaughter v. Slaughter, 264 N.C.732, 142 S.E.2d 683 (1965) (defendant, son ofplaintiff, exploded firecrackers outside his homewhere plaintiff was a guest with the purpose offrightening his children who were in the roomwith plaintiff; held, plaintiff could recover for afractured left hip suffered when she fell as a resultof becoming emotionally upset at the noise);Langford v. Shu, 258 N.C. 135, 128 S.E.2d 210(1962) (plaintiff, defendant's next door neighbor,frightened by defendant's practical joke, a"mongoose box," stumbled while fleeing the box,fell and tore a cartilage in her knee; held, plaintiffcould recover for damages to her knee); Martin v.Spencer, 221 N.C. 28, 18 S.E.2d 703 (1942)(defendant directed verbal abuse at plaintiff andengaged in altercation with plaintiff's brother in adispute over a boundary; held, plaintiff couldrecover for a miscarriage which, according to herevidence, resulted from "fright occasioned by theconduct of the defendant."); Sparks v. ProductsCorp., 212 N.C. 211, 193 S.E. 31 (1937) (held,plaintiff could recover for "shock and injury to hernerves, resulting in loss of weight, nervousness,periodical confinement in bed, and other ailments"caused by defendant's blasting operation whichhurled a rock through the roof of plaintiff's home).Although these earlier cases, except forSparks v. Products Corp., did permit recoveryunder circumstances similar to those to which themodern tort of intentional infliction of mentaldistress is directed, the cases did not actually cometo grips with the tort as it is now recognized byPROSSER and THE RESTATEMENT and as werecognized it in Stanback. These earlier cases wereconcerned with a broader concept of liability thanthe relatively narrow one now known asintentional infliction of mental distress. They wereconcerned with permitting recovery for injury,physical and mental, intentionally or negligentlyinflicted. The opinion in Kirby consistently refersto injuries which result from either wilful ornegligent conduct. Crews, which relied on Kirby,dealt with intentional actions of a bill collector.The opinion, however, relied on § 436 of THERESTATEMENT. This section deals with negligentinfliction of mental distress which results inphysical harm. Compare RESTATEMENT § 46,particularly Comment a, p. 72, with § 436. To theextent, then, that these earlier cases required some"physical injury" 50 apart from mere mental or50A strong argument can be made that even these earlierdecisions did not intend to make "physical injury" anessential element of the claims asserted. When the Courtsaid that "mere fright" was not actionable it was probablyDICKENS V. PURYEAR

§ A. APPLYING THE CORRECT LIMITATION PERIOD 281emotional distress and, in addition, talked in termsof foreseeability, they did so in the context ofnegligently inflicted injuries and not in the contextof the tort, as it is now recognized, of intentionalinfliction of mental distress. This Court inWilliamson v. Bennett, 251 N.C. 498, 112 S.E.2d48 (1960) denied recovery for a serious nervousdisorder unaccompanied by physical injury,allegedly caused by defendant's negligentoperation of an automobile. Denial, however, wason the ground that the connection between therelatively minor accident and plaintiff's conditionwas too tenuous and too "highly extraordinary" topermit recovery. The Court noted, however, id. at503, 112 S.E.2d at 51:This cause involves mental distressand invasion of emotional tranquility. Itconcerns itself with fear and resultantneurasthenia allegedly caused by ordinarynegligence. In so far as possible we shallavoid consideration of those situationswherein fright, mental suffering andnervous disorder result from intentional,wilful, wanton or malicious conduct.(Emphasis original.)Stanback, then, should not be read as grafting"physical injury" and "foreseeability"requirements on the tort of intentional infliction ofmental distress. Neither should it be read asgrafting the requirements of this tort on othertheories of recovery for mental and emotionaldistress dealt with in our earlier cases. We leavethose theories where they lay before Stanback.Stanback, in effect, was the first formalrecognition by this Court of the relatively recenttort of intentional infliction of mental distress.This tort, under the authorities already cited,consists of: (1) extreme and outrageous conduct,(2) which is intended to cause and does cause (3)severe emotional distress to another. The tort mayalso exist where defendant's actions indicate areckless indifference to the likelihood that theywill cause severe emotional distress. Recoverymay be had for the emotional distress so causedand for any other bodily harm which proximatelyresults from the distress itself.attempting to distinguish not between physical injury andemotional disturbance but rather between momentary orminor fright and serious emotional or nervous disorders.But see Williamson v. Bennett, infra, in text.BWe now turn to some principles governing theentry of summary judgment. The movant mustclearly demonstrate the lack of any triable issue offact and entitlement to judgment as a matter oflaw. Pitts v. Pizza, Inc., 296 N.C. 81, 249 S.E.2d375 (1978). The record is considered in the lightmost favorable to the party opposing the motion.Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379(1975). "[A]ll inferences of fact from the proofsproffered at the hearing must be drawn against themovant and in favor of the party opposing themotion." Page v. Sloan, 281 N.C. 697, 706, 190S.E.2d 189, 194 (1972), quoting 6 MOORE'SFEDERAL PRACTICE P 56.15(3) at 2337 (2d ed.1971).In ruling on summary judgment, a court doesnot resolve questions of fact but determineswhether there is a genuine issue of material fact.Zimmerman v. Hogg & Allen, 286 N.C. 24, 209S.E.2d 795 (1974). An issue is material "if thefacts alleged are such as to constitute a legaldefense or are of such nature as to affect the resultof the action, or if the resolution of the issue is soessential that the party against whom it is resolvedmay not prevail." Kessing v. Mortgage Corp., 278N.C. 523, 534, 180 S.E.2d 823, 830 (1971). Thus adefending party is entitled to summary judgment ifhe can show that claimant cannot prove theexistence of an essential element of his claim, Bestv. Perry, 41 N.C. App. 107, 254 S.E.2d 281(1979), or cannot surmount an affirmative defensewhich would bar the claim.Summary judgment is, furthermore, a deviceby which a defending party may force the claimantto produce a forecast of claimant's evidencedemonstrating that claimant will, at trial, be ableto make out at least a prima facie case or that hewill be able to surmount an affirmative defense.Under such circumstances claimant need notpresent all the evidence available in his favor butonly that necessary to rebut the defendant'sshowing that an essential element of his claim isnon-existent or that he cannot surmount anaffirmative defense. See Moore v. Fieldcrest Mills,Inc., 296 N.C. 467, 470, 251 S.E.2d 419, 421(1979); see generally Louis, "Federal SummaryJudgment Doctrine: A Critical Analysis," 83 YALELAW JOURNAL, 745 (1974).CThe question, then, is whether in light of theprinciples applicable to motions for summaryDICKENS V. PURYEAR

282 7. STATUTES OF LIMITATIONjudgment and those applicable to the torts ofassault and battery and intentional infliction ofmental distress, the evidentiary showing ondefendants' motions for summary judgmentdemonstrates as a matter of law the non-existenceof a claim for intentional infliction of mentaldistress. Stated another way, the question iswhether the evidentiary showing demonstrates as amatter of law that plaintiff's only claim, if any, isfor assault and battery. If plaintiff, as a matter oflaw, has no claim for intentional infliction ofmental distress but has a claim, if at all, only forassault and battery, then plaintiff cannot surmountthe affirmative defense of the one-year statute oflimitations and defendants are entitled to summaryjudgment on the ground of the statute.Although plaintiff labels his claim one forintentional infliction of mental distress, we agreewith the Court of Appeals that "[t]he nature of theaction is not determined by what either party callsit...." Hayes v. Ricard, 244 N.C. 313, 320, 93S.E.2d 540, 545-46 (1956). The nature of theaction is determined "by the issues arising on thepleading and by the relief sought," id., and by thefacts which, at trial, are proved or which, onmotion for summary judgment, are forecast by theevidentiary showing.Here much of the factual showing at thehearing related to assaults and batteries committedby defendants against plaintiff. The physicalbeatings and the cutting of plaintiff's hairconstituted batteries. The threats of castration anddeath, being threats which created apprehension ofimmediate harmful or offensive contact, wereassaults. Plaintiff's recovery for injuries, mental orphysical, caused by these actions would be barredby the one-year statute of limitations.The evidentiary showing on the summaryjudgment motion does, however, indicate thatdefendant Earl Puryear threatened plaintiff withdeath in the future unless plaintiff went home,pulled his telephone off the wall, packed hisclothes, and left the state. The Court of Appealscharacterized this threat as being "an immediatethreat of harmful and offensive contact. It was apresent threat of harm to plaintiff...." 45 N.C. App.at 700, 263 S.E.2d at 859. The Court of Appealsthus concluded that this threat was also an assaultbarred by the one-year statute of limitations.We disagree with the Court of Appeals'characterization of this threat. The threat was notone of imminent, or immediate, harm. It was athreat for the future apparently intended to andwhich allegedly did inflict serious mental distress;therefore it is actionable, if at all, as an intentionalinfliction of mental distress. Wilson v. Wilkins,supra, 181 Ark. 137, 25 S.W.2d 428;RESTATEMENT § 31, Comment a, pp. 47-48.The threat, of course, cannot be consideredseparately from the entire episode of which it wasonly a part. The assaults and batteries, construingthe record in the light most favorable to theplaintiff, were apparently designed to give addedimpetus to the ultimate conditional threat of futureharm. Although plaintiff's recovery for injury,mental or physical, directly caused by the assaultsand batteries is barred by the statute of limitations,these assaults and batteries may be considered indetermining the outrageous character of theultimate threat and the extent of plaintiff's mentalor emotional distress caused by it. 51Having concluded, therefore, that the factualshowing on the motions for summary judgmentwas sufficient to indicate that plaintiff may be ableto prove at trial a claim for intentional infliction ofmental distress, we hold that summary judgmentfor defendants based upon the one-year statute oflimitations was error and we remand the matter forfurther proceedings against defendant Earl Puryearnot inconsistent with this opinion.* * *For the reasons stated the decision of theCourt of Appeals affirming summary judgment infavor of Earl Puryear is reversed. The claimagainst Earl Puryear is remanded to that court withinstructions that it be remanded to Wake SuperiorCourt for further proceedings not inconsistent withthis opinion. The decision of the Court of Appealsaffirming summary judgment in favor of AnnPuryear is affirmed.REVERSED IN PART.AFFIRMED IN PART.51We note in this regard plaintiff's statement in hisdeposition that "[i]t is not entirely (the future threat) whichcaused me all of my emotional upset and disturbance that Ihave complained about. It was the ordeal from beginningto end." If plaintiff is able to prove a claim for intentionalinfliction of mental distress it will then be the difficult, butnecessary, task of the trier of fact to ascertain the damagesflowing from the conditional threat of future harm.Although the assaults and batteries serve to color and giveimpetus to the future threat and its impact on plaintiff'semotional condition, plaintiff may not recover damagesflowing directly from the assaults and batteries themselves.DICKENS V. PURYEAR

§ A. APPLYING THE CORRECT LIMITATION PERIOD 283MEYER, J., did not participate in theconsideration and decision of this case.al.§ B. Accrual of the Cause ofActionESTATES OF HIBBARD v. GORDON, et118 Wash. 2d 737, 826 P.2d 690 (1992)SMITH, JusticeThe State of Washington (State) petitioned forreview of a decision of the Court of Appeals,Division Two, which reversed a dismissal onsummary judgment in the State's favor by thePierce County Superior Court. 60 Wash. App. 252,803 P.2d 1312. We granted review. The Statecontends that respondents are not aggrieved by thetrial court's order and that they therefore had nostanding to appeal to the Court of Appeals. Itfurther contends that the statute of limitations hasrun on plaintiff's original complaint and that the"discovery rule" does not apply to extend theapplicable 3-year statute of limitations. We reversethe Court of Appeals.Plaintiff in the trial court was Ms. Heidi L.Hibbard (Hibbard), appearing on her own behalfand as personal representative of the estate of herparents, Robert G. and Maxine Hibbard,deceased. 1 Defendants in the trial court were PugetSound National Bank (Bank), the original personalrepresentative of the Hibbards' estate; and E.M.Murray and the law firm of Gordon, Thomas,Honeywell, Malanca, Peterson and O'Hern(Gordon Thomas), attorneys for the personalrepresentative. The defendants were served withthe original summons and complaint on December2, 1983. A second amended complaint adding theState as a defendant was filed by Ms. Hibbard onFebruary 10, 1986.The primary question in this case is whetherthe "discovery rule" applies and whether the 3-year statute of limitations barred Ms. Heidi L.1Estates of Robert G. and Maxine Hibbard, Deceased,and Heidi L. Hibbard v. Gordon, Thomas, Honeywell,Malanca, Peterson and O'Hern, et al., Pierce County cause84-2-00651-5 (Feb. 3, 1984).Hibbard's claims against the State of Washington.Because we answer "no" to the first prong of thatquestion and "yes" to the second prong, it is notnecessary for us to address the further questionwhether Respondents Bank and Gordon Thomashad standing to appeal to the Court of Appeals thetrial court's summary judgment order dismissingthe State from the lawsuit filed by Ms. Hibbard.On December 6, 1977, Larry W. Knoxmurdered Robert G. and Maxine Hibbard andallegedly raped their daughter, Ms. Heidi L.Hibbard. 2 Knox was on probation for burglary andhad been treated at Western State Hospital andreleased 7 months prior to the December incident.On December 12, 1977, the Bank was appointedpersonal representative of the Hibbard estate andGordon Thomas was retained as attorneys for theestate. Probate was closed on March 4, 1980.In the fall of 1983, Ms. Hibbard read anewspaper account of this court's decision inPetersen v. State. 3 She consulted an attorney inOctober 1983. The estate of her parents was thenreopened and Ms. Hibbard was appointed aspersonal representative. 4On November 23, 1983, Ms. Hibbard filed aclaim with the State for personal injuries arisingout of her rape by Larry W. Knox on December 6,1977. The State denied her claim for the reasonthat it exceeded the statute of limitations,"pursuant to R.C.W. 26.28.015." 5 On December 2,2Larry W. Knox pleaded "guilty" and was convicted ofthe murders on May 2, 1978. However, the record does notindicate whether rape charges were filed against him.3Petersen v. State, 100 Wash. 2d 421, 671 P.2d 230(1983). Ms. Cynthia Petersen was injured when herautomobile was struck by a vehicle driven by Larry W.Knox. It was revealed in the case that Knox was onprobation for burglary and had been committed to WesternState Hospital where he was treated by Dr. Alva E. Miller.Dr. Miller, aware of Knox's drug abuse and dangerousbehavior, released him from Western State Hospital 5 daysbefore the accident.450.5Pierce County cause 84-2-00651-5. Clerk's Papers, atThis is obviously an erroneous statutory reference, butis not a matter of contention.DICKENS V. PURYEAR

284 7. STATUTES OF LIMITATION1983, Ms. Hibbard served the Bank with asummons and complaint and filed her lawsuit inthe Pierce County Superior Court on February 3,1984. 6 Gordon Thomas was made a defendantprior to consolidation of these actions on February3, 1986. Ms. Hibbard claimed that the Bank andGordon Thomas acted negligently in failing tobring suit against the State and Larry W. Knox. 7The Bank moved for summary judgment,asking dismissal of the action based upon thestatute of limitations. On January 17, 1986,visiting judge Karen B. Conoley, Kitsap CountySuperior Court, in an oral decision denied theBank's motion because there remained an issueconcerning the date Ms. Hibbard knew all theelements of her cause of action against the Bank. 8At this point, the Bank and Gordon Thomas askedthat the State be joined as a party.On January 17, 1986, Ms. Hibbard filed aclaim with the State for the wrongful death of herparents. On February 10, 1986, she filed a secondamended complaint for damages in the PierceCounty Superior Court, adding the State as aparty. 9 The complaint acknowledged that the 3-year statute of limitations had expired onDecember 6, 1980, but asked for judgment againstthe State in the event the court determined that thestatute of limitations had not run against it for its"tortious and outrageous conduct."On July 27, 1987, the State filed a summaryjudgment motion for dismissal based on the statute650.7Pierce County cause 84-2-00651-5. Clerk's Papers, atAn unsigned, unacknowledged and undated"affidavit" by Ms. Hibbard, with the typewritten date"September CC 1985," is part of the record before us. Thedocument cannot be considered in that form.8Pierce County cause 84-2-00651-5. No order for thisruling is in the file. Nor does the file indicate an appeal ofthe ruling by any party. REPORT OF PROCEEDING, vol. I, at2.9Pierce County cause 84-2-00651-1. Ms. Hibbardclaimed that the State knew or should have known thatKnox had violent propensities and that it was negligent inits failure to protect her parents from being murdered byKnox and her from being raped by him She claimeddamages for "emotional distress, personal humiliation,pain, suffering, emotional trauma, and loss of love,companionship, care and guidance of her parents." Clerk'sPapers, at 32-38.of limitations. 10 Gordon Thomas filed amemorandum opposing the State's motion. 11 OnAugust 4, 1987, the Bank filed a motion forsummary judgment, adopting the State'sarguments and contending that the claims againstthe Bank were also barred if the claims against theState were barred by the statute of limitations. 12On September 11, 1987, visiting judge DavidE. Foscue, Grays Harbor County Superior Court,granted the State's motion, but denied the Bank'smotion. In his memorandum decision datedSeptember 11, 1987, Judge Foscue ruled that thestatute of limitations expired on December 6,1980, on the claims against the State and that the"discovery rule" did not apply. However, JudgeFoscue concluded that a genuine issue of materialfact remained concerning the date the cause ofaction accrued against the Bank. 13 The Bank andGordon Thomas filed notices of appeal. However,Ms. Hibbard did not appeal.On December 30,1988, the Court of Appeals,Division Two, certified the appeal to this court.This court declined certification on January 31,1989, and returned the case to the Court ofAppeals. An order confirming appealability wassigned on March 9, 1989.On August 22, 1989, in reversing the trialcourt, the Court of Appeals determined that the"discovery rule" applied and that there was anissue of fact whether Ms. Hibbard should haveknown of her cause of action against the Statewithin the allowable statute of limitations period.The State filed a motion for reconsideration. 1410Pierce County cause 84-2-00651-5. Clerk's Papers, at1. The memorandum in support of the motion for summaryjudgment cites RCW 4.16.080(2), which provides:The following actions shall be commenced withinthree years:(1) An action for taking, detaining, or injuringpersonal property, including an action for the specificrecovery thereof, or any other injury to the person orrights of another not hereinafter enumerated[.]111213Clerk's Papers, at 62-67.Clerk's Papers, at 42-57.Pierce County cause 84-2-00651-5. The ordergranting summary judgment was signed October 5, 1987.Clerk's Papers, at 84-86.14The record does not indicate the disposition of thisESTATES OF HIBBARD V. GORDON, ET AL.

§ B. ACCRUAL OF THE CAUSE OF ACTION 285Following this court's decision in Gevaart v.Metco Constr., Inc., 15 the Court of Appeals issuedan order calling for an answer, withdrew itsopinion and set the case for reargument.On January 14, 1991, after reargument, theCourt of Appeals again reversed the trial court. 16The majority (ALEXANDER, J.) held that thediscovery rule applied and that there remained aquestion of fact whether Ms. Hibbard knew orshould have known of the State's allegednegligence within the allowable statute oflimitations period. The dissent (REED, J.)concluded that the Bank and Gordon Thomas hadno standing to appeal the State's dismissal 17 andthat the "discovery rule" did not apply in the case.On February 13, 1991, the State petitionedthis court for review, which we granted on May 8,1991.Two orders were entered in this case by thetrial court: an order granting the State's motion forsummary judgment of dismissal, whichdetermined the issues between Plaintiff Hibbardand the State, and an order denying the Bank'smotion for summary judgment of dismissal, whichdetermined the issue between Plaintiff Hibbardand the Bank. Plaintiff, Ms. Heidi L. Hibbard, wasmotion.15111 Wash. 2d 499, 760 P.2d 348 (1988), where thiscourt held that, under the discovery rule, a cause of actionaccrues when the injured party knows or should know, bythe exercise of due diligence, all the facts necessary toestablish the elements of the party's claim.16In re Estates of Hibbard, 60 Wash. App. 252, 803P.2d 1312 (1991).17The majority assumed that the parties had agreed thatthe Bank and Gordon Thomas were aggrieved parties:Only an aggrieved party may appeal to this court.RAP 3.1. The parties have not addressed the right ofGordon, Murray, and Puget Sound to appeal the trialcourt's dismissal of Heidi and the estate's cause ofaction against the State. The claims of Heidi and theestate against Gordon, Murray, and Puget Sound failif the court finds that the action against the State wasnot time barred. Therefore, we can only assume thatthe parties agree that Gordon, Murray, and PugetSound are aggrieved parties because their pecuniaryrights are substantially affected by the trial court'sdismissal of the case against the State. See Cooper v.Tacoma, 47 Wash. App. 315, 734 P.2d 541 (1987)."(Italics ours.) Hibbard, at 256 n.2, 803 P.2d 1312.not a party to any appeal in this case.In ruling on the summary judgment motions,the trial court followed our established rule that:A summary judgment motion can begranted only when there is no genuineissue as to any material fact, and themoving party is entitled to judgment as amatter of law.... The court must considerthe facts in the light most favorable to thenonmoving party, and the motion shouldbe granted only if, from all the evidence,reasonable persons could reach but oneconclusion.... 18Additionally, we follow the rule that"[w]hen reviewing an order of summaryjudgment, this court engages in the sameinquiry as the trial court." 19Inasmuch as Plaintiff Hibbard did not appealany of the rulings in this case, there is actually notbefore this court any basis for reviewing thedecision of the trial court on summary judgmentbetween her and the State. However, the Court ofAppeals having spoken on the rulings by the trialcourt, we must necessarily direct our attention tothe principal question whether the "discovery rule"applies in this case between Ms. Hibbard and theState.The general rule in ordinary personal injuryactions is that a cause of action accrues at the timethe act or omission occurs. 20 "In certain torts, ...injured parties do not, or cannot, know they havebeen injured; in [those] cases, a cause of actionaccrues at the time the plaintiff knew or shouldhave known all of the essential elements of thecause of action." This is an exception to thegeneral rule and is known as the "discoveryrule." 21This court first adopted the discovery rule in18Marincovich v. Tarabochia, 114 Wash. 2d 271, 274,787 P.2d 562 (1990) (citing Highline Sch. Dist. 401 v. Portof Seattle, 87 Wash. 2d 6, 15, 548 P.2d 1085 (1976);Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030(1982)).1920Marincovich, at 274.White v. Johns-Manville Corp., 103 Wash. 2d 344,348, 693 P.2d 687, 49 A.L.R.4th 955 (1985).21White, at 348, 693 P.2d 687.ESTATES OF HIBBARD V. GORDON, ET AL.

286 7. STATUTES OF LIMITATIONRuth v. Dight. 22 That was a medical malpracticecase in which a plaintiff, alleging that her doctorhad negligently left a surgical sponge in herabdomen, brought an action against the doctor 23years after he had performed surgery on her.During those 23 years, plaintiff had sought thehelp of various physicians who treated her forrecurrent pain. However, the sponge was notdiscovered until she underwent exploratorysurgery just a year before she filed suit.The court recognized the practical and policyconsiderations underlying statutes of limitations,observing that stale claims may be spurious andgenerally rely on untrustworthy evidence. Thecourt further observed that society benefits when itcan be assured that a time comes when one isfreed from the threat of litigation. The court alsorecognized the remedial goal of the justice system,stating that "when an adult person has a justiciablegrievance, [that person] usually knows it and thelaw affords [the person] ample opportunity toassert it in the courts," 23 but that that goal isbalanced by recognition that compelling one toanswer a stale claim is in itself a substantialwrong. The court resolved these competinginterests - where neither party is responsible forthe delay in discovery of the asserted action - bytolling the statute of limitations and by preservingthe remedy. Thus, this court has held that inmedical malpractice cases asserting negligence inleaving foreign substances or articles in a surgicalwound and which remain in the body after thewound has been closed, "the statute of limitations(RCW 4.16.080(2)), commences to run when thepatient discovers or, in the exercise of reasonablecare for [the patient's] own health and welfare,should have discovered the presence of the foreignsubstance or article in [the patient's] body." 24After Ruth v. Dight, supra, this court in Gazijav. Nicholas Jerns Co. 25 extended the discoveryrule to an action for negligent cancellation of aninsurance policy, characterizing the extension a"judicial policy determination." The courtdetermined that application of the discovery rule2275 Wash. 2d 660, 453 P.2d 631 (1969).was warranted because of the fiduciaryrelationship between plaintiff policyholder anddefendant insurance company. 26 Plaintiff in Gazijahad no way of knowing his insurance policy hadbeen canceled. He relied on a fiduciaryrelationship and was not aware of the negligent actuntil after the limitation period had expired. Thecourt then concluded that plaintiff "respondent'scause of action accrued when he first sufferedactual loss and had the first opportunity by theexercise of reasonable diligence to discover he hadan actionable claim for unauthorized cancellationof the `floater' policy," and that the cause of actionwas not barred by the statute of limitations. 27Even with extended application of thediscovery rule, this court continues to emphasizethe exercise of due diligence by the injured party.In Gevaart v. Metco Constr., Inc., 28 this court heldthat a negligent design and construction claim wasbarred by the statute of limitations. Plaintiff, whileascending the stairs to her condominiumresidence, upon reaching the downward-slopingtop step, lost her balance and fell backward. Thecourt concluded that since plaintiff knew the stepsloped, she could by the exercise of due diligencehave determined not only that the step did notconform to code, but also that the slope was aconstruction defect. We affirmed the Court ofAppeals.* * *Although there has been increased applicationof the discovery rule by this court, we still followthe reasoning of Ruth v. Dight. 29 Application of therule is limited to claims in which the plaintiffscould not have immediately known of their26Gazija, at 221, 543 P.2d 338. The discovery rule hassince been applied to other similar professionalrelationships. See Peters v. Simmons, 87 Wash. 2d 400,552 P.2d 1053 (1976) (attorney); Kundahl v. Barnett, 5Wash. App. 227, 486 P.2d 1164 (1971) (surveyor); Hunterv. Knight, Vale & Gregory, 18 Wash. App. 640, 571 P.2d212 (1977) (accountant), review denied, 89 Wash. 2d 1021(1978); Hermann v. Merrill Lynch, Pierce, Fenner &Smith, Inc., 17 Wash. App. 626, 564 P.2d 817 (1977)(stockbroker).23Ruth, at 665, 453 P.2d 631.27Gazija, at 223, 543 P.2d 338.24Ruth, at 667-68, 453 P.2d 631.28111 Wash. 2d 499, 760 P.2d 348 (1988).2586 Wash. 2d 215, 543 P.2d 338 (1975).2975 Wash. 2d 660, 453 P.2d 631 (1969).ESTATES OF HIBBARD V. GORDON, ET AL.

§ B. ACCRUAL OF THE CAUSE OF ACTION 287injuries due to professional malpractice,occupational diseases, self-reporting orconcealment of information by the defendant.Application of the rule is extended to claims inwhich plaintiffs could not immediately know ofthe cause of their injuries.* * *Recognizing our prior decisions and thepolicy behind the discovery rule, we concludethat, in this case, a correct formulation of the ruleis that a cause of action accrues when a claimantknows, or in the exercise of due diligence shouldhave known, all the essential elements of the causeof action, specifically duty, breach, causation anddamages. 30Neither Ms. Heidi L. Hibbard nor the Estatesof Robert G. and Maxine Hibbard, Deceased,plaintiffs in the trial court, have appealed from orsought review of the adverse action against them.They are therefore not parties to the action in theCourt of Appeals or before this court. 31We reverse the Court of Appeals and affirmthe decision of the trial court which found that the"discovery rule" did not apply to the State in thiscase and that the negligence action against theState was barred by the three-year statute oflimitations, which began to run on December 6,1977, the date Ms. Hibbard's parents weremurdered and she was allegedly raped.DORE, C.J., ANDERSON, Acting C.J., andUTTER, BRACHTENBACH, DOLLIVER,DURHAM and JOHNSON, JJ., concur.30Gevaart v. Metco Constr. Inc., 111 Wash. 2d 499, 760P.2d 348 (1988). See also Ruth v. Dight, 75 Wash. 2d 660,453 P.2d 631; Ohler v. Tacoma Gen. Hosp., 92 Wash. 2d507, 598 P.2d 1358 (1979).31Gevaart v. Metco Constr., Inc., 111 Wn. 2d 499, 760P.2d 348 (1988). See also Ruth v. Dight, 75 Wn. 2d 660,453 P.2d 631 (1969); Ohler v. Tacoma Gen. Hosp., 92 Wn.2d 507, 598 P.2d 1358 (1979).ESTATES OF HIBBARD V. GORDON, ET AL.

288 7. STATUTES OF LIMITATIONPFEIFER v. CITY OF BELLINGHAM112 Wash. 2d 562, 772 P.2d 1018 (1989)UTTER, JusticeHolly Pfeifer brought an action against IslandConstruction Company for injuries suffered whenshe had to jump from a burning building. IslandConstruction claims it was not liable because theconstruction statute of repose barred the action.Appellant contends that the statute of repose doesnot cover builder/vendors when the cause ofaction is based on the sellers' concealing a known,dangerous condition during the sale. The trialcourt granted summary judgment in favor of thebuilder/vendors based on the statute of repose. Wereverse. Because sellers incur separate liability,actions based on the sale are not covered by thestatute of repose for construction.The parties debate some of the essential facts.Island Construction Company completed buildingthe Willowwood condominium complex in 1979.Island Construction hired Michael Kohl to modifystock plans to ensure compliance with municipalcodes. M. Kohl prequalified his plans byconsulting with Bellingham Building Departmentand Fire Department personnel. IslandConstruction does not contest that Mr. Kohl'splans were altered before they were submitted tothe City of Bellingham for approval. Mr. Kohlclaims that the alterations resulted in cheaperconstruction, a dangerous structure, andnoncompliance with City codes.The altered plans changed the finish grade ofthe terrain surrounding building D, allowing thebuilding to be classified as a 2-story, rather than a3-story, structure. Two-story structures requireonly one stairwell and fewer fire protectiondesigns. Mr. Kohl states that the building wasultimately constructed as a 3-story structure, whileIsland Construction contends it is a 2-storystructure with a basement.The Bellingham Building Department issued abuilding permit, inspected the project duringconstruction, and, on June 12, 1979, issued a finalcertificate of occupancy certifying that thecomplex complied with the applicable codes andordinances.Island Construction and its principals sold thecondominium units to individual buyers in 1979.During 1986, Holly Pfeifer leased unit 302 inbuilding D from one of the original owners.On June 2, 1986, a fire, which began in unit102D, spread quickly through building D,allegedly due to the lack of required fire stops and2-hour fire walls. Because fire blocked the onlyexit, appellant jumped from her third storywindow. As a result, she suffered physical andemotional injuries.Ms. Pfeifer brought a negligence actionagainst, among others, the City of Bellingham andIsland Construction Company with its principals,the Masseys and the Bedfords (IslandConstruction). The City and Island Constructioncross-claimed against each other. Ms. Pfeifer filedan amended complaint against Island Constructionalleging negligent and intentional concealment f adangerous condition and consumer protection actviolations.The trial court granted the City's motion forsummary judgment, concluding that both thepublic duty doctrine and R.C.W. 4.16.300, thestatute of repose for construction, barred Ms.Pfeifer's action. Similarly, the trial court grantedIsland Construction's motion for summaryjudgment based on R.C.W. 4.16.300.We accepted direct review but, finding ourrecent public duty doctrine cases controlling,granted the City's motion to dismiss claims againstit. The remaining issue is whether the constructionstatute of repose, R.C.W. 4.16.300-.320, barsaction against a seller, who is also the builder, forconcealment of a dangerous construction defectwhen the plaintiff is personally injured.Ms. Pfeifer bases her claim against IslandConstruction as a seller, not a builder, under theRESTATEMENT (SECOND) OF TORTS, § 353 (1965):(1) A vendor of land who conceals orfails to disclose to his vendee anycondition, whether natural or artificial,which involves unreasonable risk topersons on the land, is subject to liabilityto the vendee and others upon the landwith the consent of the vendee or hissubvendee for physical harm caused bythe condition after the vendee has takenpossession, if(a) the vendee does not know orhave reason to know of the conditionor the risk involved, andESTATES OF HIBBARD V. GORDON, ET AL.

§ B. ACCRUAL OF THE CAUSE OF ACTION 289(b) the vendor knows or hasreason to know of the condition, andrealizes or should realize the riskinvolved, and has reason to believethat the vendee will not discover thecondition or realize the risk.(2) If the vendor actively conceals thecondition, the liability stated inSubsection (1) continues until the vendeediscovers it and has reasonableopportunity to take effective precautionsagainst it. Otherwise the liabilitycontinues only until the vendee has hadreasonable opportunity to discover thecondition and to take such precautions.The principles stated in 353 provide an"accepted post-sale theory" of recovery in thisstate. See Wilson v. Thermal Energy, Inc., 21Wash. App. 153, 155, 583 P.2d 679 (1978); seealso Obde v. Schlemeyer, 56 Wash. 2d 449, 353P.2d 672 (1960). Therefore, the cause of action ispart of the common law, using the term in itsbroader sense, of Washington. "Absent anindication that the legislature intends a statute tosupplant common law, the courts should not giveit that effect." 2A J. SUTHERLAND, STATUTORYCONSTRUCTION § 50.01, at 422 (4th ed. 1984).Island Construction argues that the theory ofrecovery is immaterial: Ms. Pfeifer has no causeof action because R.C.W. 4.16.300-.320 clearlybars all claims against builders that do not accruewithin 6 years of substantial completion ofconstruction or termination of certain services.The injury occurred in 1986, more than 6 yearsafter completion in 1979. A proviso allows claimsagainst an owner who is in possession of thebuilding when the injury occurs. However, IslandConstruction had sold all of the units by 1979.The pertinent parts of the construction statutein effect at the time of the injury read as follows:RCW 4.16.300 through 4.16.320 shallapply to all claims or causes of action ofany kind against any person, arising fromsuch person having constructed, altered orrepaired any improvement upon realproperty, or having performed orfurnished any design, planning, surveying,architectural or construction orengineering services, or supervision orobservation of construction, oradministration of construction contractsfor any construction, alteration or repair ofany improvement upon real property.RCW 4.16.300.All claims or causes of action as setforth in R.C.W. 4.16.300 shall accrue, andthe applicable statute of limitation shallbegin to run only during the period withinsix years after substantial completion ofconstruction, or during the period withinsix years after the termination of theservices enumerated in R.C.W. 4.16.300,whichever is later.... Any cause of actionwhich has not accrued within six yearsafter such substantial completion ofconstruction ... shall be barred: Provided,That this limitation shall not be assertedas a defense by any owner, tenant or otherperson in possession and control of theimprovement at the time such cause ofaction accrues. RCW 4.16.310.This court has used a 3-step approach inconstruing the statute. First, the court mustdetermine the statute's scope, whether it applies atall. If the statute applies, the cause of action mustaccrue within 6 years of substantial completion. Ifthe cause of action accrues, then the party mustfile suit within the appropriate statute oflimitations for that cause of action. Del GuzziConstr. Co. v. Global Northwest Ltd., 105 Wash.2d 878, 882-883, 719 P.2d 120 (1986).The debate centers around the first step,scope. Both parties frame arguments based onstatutory construction, policy, and Washington'sconstitution. Island Construction contends that thestatute bars recovery for the following reasons: 1)Pfeifer's claim arises from construction of thebuilding and the statute bars claims of any kindagainst any person involved in construction; 2) thestatute would be meaningless if a builder could notsell his product without losing the protection ofthe statute; and 3) construing the statute to applyonly to builders who do not sell the propertywould be unconstitutional.Pfeifer counters that the statute is notapplicable for several reasons: 1) her claim arisesfrom the concealment during the sale, not from theconstruction itself, and the statute does not coversales and marketing activity; 2) exemptingvendors from coverage would not render thestatute meaningless; and 3) if the statute isinterpreted to cover only sellers who were alsoinvolved in construction, it would fail as speciallegislation prohibited by article 2, section 28(17)of the Washington State Constitution.PFEIFER V. CITY OF BELLINGHAM

290 7. STATUTES OF LIMITATIONThe "arising from" statutory languageprovides the key for resolving the statutoryconstruction dispute. Island Construction'sargument that the statute bars all claims of anykind against any person "involved" in constructionis inaccurate. On its face the statute bars onlyclaims "arising from" the enumerated activities.The "all claims of any kind against any person"language is qualified by the requirement that theseclaims "arise from" certain activities.In addressing a similar builders' statute ofrepose, a New Mexico appellate court found thatthe language required an activity analysis. Howellv. Burk, 90 N.M. 688, 568 P.2d 214 (Ct. App.),cert. denied, Albuquerque v. Howell, 91 N.M. 3,569 P.2d 413 (1977). The language in Howellprovided benefits to "`any person performing orfurnishing the construction or the design,planning, supervision, inspection or administrationof construction ... and on account of suchactivity....'" 568 P.2d at 223. The Howell courtconcluded that summary judgment wasappropriate to the extent that the defendant wassued as an installer of glass, but it wasinappropriate where he was sued as amanufacturer or seller. 568 P.2d at 223.Logic supports this analysis. Had IslandConstruction been only the seller but not thebuilder, the statute would offer no protectionagainst an action for concealment of a knowndangerous condition during sale. A seller who alsohappens to be the builder should not be shieldedfrom liability. Selling and building involvedifferent activities. The statute shields builders. Ifbuilders also engage in the activity of selling, theyshould face the liability of sellers. A primarypurpose of the limitation is to protect contractorsfrom the "possibility of being held liable for theacts of others." Jones v. Weerhaeuser Co., 48Wash. App. 894, 899, 741 P.2d 75 (1987). Theprotection is based on the premise that the longerthe owner possesses the improvement, "the morelikely it is that the damage was the owner's fault orthe result of natural forces." 48 Wash. App. at 899,741 P.2d 75. These considerations do not applywhen a seller conceals a known dangerouscondition that the buyer has no reason to discover.In two cases, this court has indicated that anactivities analysis is appropriate. "RCW 4.16.310applies to all claims of [sic] causes of actionarising from the activities covered." (Seconditalics ours.) New Meadows Holding Co. v.Washington Water Power Co., 102 Wash. 2d 495,500, 687 P.2d 212 (1984). This court has alsoemphasized activities as a means of definingpersons covered by the statute. Condit v. LewisRefrigeration Co., 101 Wash. 2d 106, 110, 676P.2d 466 (1984) (the statute protects those whoseactivities relate to the structural aspects of thebuilding).Island Construction argues that as long as itworked on structural aspects, it is a person who iscovered by the statute. The argument misses thefocal point of the analysis: the focus is onactivities. If the claim arises from those activities,the person is covered; if it does not, he is notcovered. Here the claim arises from concealmentduring sale - the activity of selling is not covered.Island Construction errs in contending thatSmith v. Showalter, 47 Wash. App. 245, 734 P.2d928 (1987) requires a contrary result. There, theplaintiffs alleged only negligent installation ofwiring, failure to meet building codes, and lack ofproper inspection. 47 Wash. App. at 247, 734 P.2d928. They did not bring suit against the defendantsas sellers, alleging concealment of a knowndangerous condition. The statute bars actionsagainst a builder/seller where a plaintiff allegesonly negligence against the defendant in hiscapacity as builder.Island Construction also argues that the statutebars recovery even if the defendant has violatedanother statute. Yakima Fruit & Cold Storage Co.v. Central Heating & Plumbing Co., 81 Wash. 2d528, 532, 503 P.2d 108 (1972). In Yakima Fruit,the defendant had performed work it was notlicensed to do. However, in terms of an activityanalysis, Yakima Fruit is not in point; the plaintiffsued the defendant as a builder, not as a seller.As a final point in its statutory constructionargument, Island Construction points out that theonly proviso in R.C.W. 4.16.310 prevents ownersor those in possession of the property at the timethe cause of action accrues from using the statuteof repose defense, and argues that by implication,an owner/builder who no longer owns the propertyis protected. The proviso should not be expandedbecause provisos are strictly construed; only casesfalling within the specific terms of a proviso areexempted from the statute. Seattle v. WesternUnion Tel. Co., 21 Wash. 2d 838, 850, 153 P.2d859 (1944).The proviso argument fails for two reasons.First, the proviso is consistent with the underlyingpremise noted above, that the statute is designed toprotect builders from being held liable for the actsPFEIFER V. CITY OF BELLINGHAM

§ B. ACCRUAL OF THE CAUSE OF ACTION 291of others. If we were to accept IslandConstruction's argument, we would reject thatpremise. Second, by applying an activity analysis,there is no need to expand the proviso. If the causeof action arises from the sale, then no proviso isneeded because the statute is inapplicable.As a policy matter, we reject the respondents'contentions that accepting a builder/sellerdistinction would gut the statute. The proofrequired for a case brought against a seller under §353 is greater than that required for merenegligence. The statute would still protectbuilder/sellers charged with negligence.The constitutional arguments of both parteslack merit. Article 2, section 28(17) of theWashington State Constitution prohibits "special"legislation limiting civil or criminal actions."Special" laws apply only to particular personsrather than to all natural members of a class.Wenatchee v. Boundary Review Bd., 39 Wash.App. 249, 251, 693 P.2d 135 (1984). "[T]o survivea challenge as special legislation, any exclusionsfrom a statute's applicability ... must be rationallyrelated to the purpose of the statute." Seattle v.State, 103 Wash. 2d 663, 675, 694 P.2d 641(1985). It could be rational for the Legislature todistinguish between sellers who improve propertyand those who do not when the purpose of thestatute is to provide protection to those whoimprove property. However, it is equally rationalto impose the duties of a seller on those builderswho also sell their property.Resolving this case on the basis of statutoryconstruction, we find the statute inapplicablebecause it does not protect the activity of selling.We need not address the argument advanced byamicus curiae urging us to create an exception tothe statute for a cause of action based onintentional or fraudulent concealment. We reversethe trial court and remand for further proceedings.PEARSON,BRACHTENBACH,DOLLIVER, DORE, ANDERSEN and SMITH,JJ., concur.DURHAM, Justice (dissenting)The majority's analysis of the constructionstatute of repose effectively repeals it, contrary toestablished rules of statutory interpretation andplain sense. Thus, I dissent.Pursuant to R.C.W. 4.16.310, a builder isprotected from any cause of action arising out ofdefective construction unless it accrues within 6years of the substantial completion ofconstruction, or the termination of the builder'sactivities, whichever comes later. It is undisputedthat the builder in this case, Island ConstructionCompany, completed the condominium at issuehere in 1979, and the plaintiff's cause of action didnot accrue until a fire in 1986. Therefore, if thestatute of repose applies, it bars the plaintiff'sclaims.The construction statute of repose applies to awide range of claims:[The statute of repose] shall apply toall claims or causes of action of any kindagainst any person, arising from suchperson having constructed, altered orrepaired any improvement upon realproperty, or having performed orfurnished any design, planning,surveying, architectural or construction orengineering services, or supervision orobservation of construction, oradministration of construction contractsfor any construction, alteration or repairof any improvement upon real property....RCW 4.16.300.The majority holds that this statute protectsbuilders from claims alleging defects inconstruction, but not from claims alleging a failureto disclose those defects when the property is soldto others. The majority bases this interpretation onthe absence of any language in the statuteexpressly extending protection to builders forfailing to disclose their own construction defects.Where this analysis breaks down is in itsfailure to realistically measure its impact. As therecord demonstrates, residential constructioncommonly takes two forms. In "spec"construction, a builder constructs an improvementon "speculation" that a buyer can later be found topurchase the property. In custom construction,another party has already contracted to purchasethe property. In "virtually 100%" of "spec"construction, and in "typically one-half" of thecustom projects, the builder owns the propertyduring the construction process. 1,2 Moreover,1Gevaart v. Metco Constr., Inc., 111 Wn. 2d 499, 760P.2d 348 (1988). See also Ruth v. Dight, 75 Wn. 2d 660,453 P.2d 631 (1969); Ohler v. Tacoma Gen. Hosp., 92 Wn.2d 507, 598 P.2d 1358 (1979).2In custom project, the builder's ownership serves toPFEIFER V. CITY OF BELLINGHAM

292 7. STATUTES OF LIMITATIONgeneral contractors often have ownership interestseven in larger commercial construction projects.Most construction projects, therefore, involvebuilders owning the property for subsequent resale.When a builder/owner is involved, any claimthat the builder defectively constructed a project isjust as easily framed as a claim that the builderfailed to disclose those defects when he sold theproperty after construction was complete. 3 Thus,the majority's analysis allows plaintiffs in mostcases to avoid operation of the statute by simplyrecasting their allegations of defectiveconstruction as allegations of inadequatedisclosure.The majority attempts to downplay the effectof its holding with the curious statement that eventhough the statute of repose does not apply tobuilder/sellers in this case, it "would still protectbuilder/sellers charged with negligence." Majority,at 1023. The statute, however, contains nolanguage suggesting a distinction for negligenceclaims. Apparently, the majority conjured up thisexplanation in an attempt to assign meaning to astatute that will have little use after today'sdecision.This court should not attribute to theLegislature an intent to so severely restrict whatwas obviously intended to be a statute of sweepingapplication. "A statute is a solemn enactment ofthe state acting through its legislature and it mustbe assumed that this process achieves an effectiveand operative result." 2A N. SINGER, STATUTORYCONSTRUCTION § 45.12, at 54 (4th ed. 1984) (andcases cited therein). A statute must be given areasonable interpretation so as to give effect to itspurpose and avoid absurd results. Pasco v. Napier,109 Wash. 2d 769, 773, 755 P.2d 170 (1988); 2AN. SINGER, at § 45.12.Analysis of the statute's purpose reveals that adefendant who builds and sells an improvementshould be treated in the same manner as one whoonly builds the improvement. Statutes of reposeassist and simplify the construction financing.3The present case serves as a good example. Pfeifer'soriginal complaint in this case predicated IslandConstruction Company's liability solely on its activities ofbuilding and inspecting the condominium. Pfeifer lateramended her complaint, however, to add a claim thatIsland Construction Company actively concealed, or failedto disclose, these defects to the buyer.are designed to avoid placing undue burdens onpotential defendants by limiting the applicabilityof the discovery rule; liability attaches only forthose causes of action that accrue within a certainperiod of time after the defendant has acted. 4 SeeGazija v. Nicholas Jerns Co., 86 Wash. 2d 215,222 n.2, 543 P.2d 338 (1975); R.C.W. 4.16.310.The policy is to protect defendants from having todefend against stale claims, because such claimsare more likely to be spurious and supported byuntrustworthy evidence, and the defendant oftenhas not been in control of the improvement for anumber of years. See Gazija, at 222, 543 P.2d 338;New Meadows Holding Co. v. Washington WaterPower Co., 34 Wash. App. 25, 29, 659 P.2d 1113(1983), aff'd in part, rev'd in part, 102 Wash. 2d495, 687 P.2d 212 (1984). The builder's lack ofcontrol over the premises is important because"[t]he longer the owner has possession of theimprovement, the more likely it is that the damagewas the owner's fault or the result of naturalforces." Jones v. Weyerhaeuser Co., 48 Wash. App.894, 899, 741 P.2d 75 (1987).These expressions of legislative policy areserved equally when the defendant is abuilder/seller as when the defendant is only abuilder. In each instance, the defendant isburdened with litigating stale claims relating toalleged defects in the defendant's constructionactivity. That one claim involves defectiveconstruction and the other involves failure todisclose those defects does not affect the burdenon the defendant in having to defend himself fromtardy claims. Because the two claims are sointimately related, and because one claim can soeasily be transformed into the other, no distinctionshould be drawn between the two in applying theconstruction statute of repose. The majority'slimitation of the statute simply cannot be squaredwith a reasonable interpretation of legislativeintent. 54A cause of action "accrues" under this statute "`at thetime the plaintiff knew or should have known all of theessential elements of the cause of action.'" Del GuzziConstr. Co. v. Global Northwest Ltd., 105 Wash. 2d 878,884, 719 P.2d 120 (1986) (quoting White v.Johns-Manville Corp., 103 Wash. 2d 344, 348, 693 P.2d687, 49 A.L.R.4th 955 (1985)).5My dissent should not be taken as a criticism of themajority's holding that the construction statute of reposecalls for an activity analysis. I differ from the majority,however, in concluding that the Legislature intendedPFEIFER V. CITY OF BELLINGHAM

§ B. ACCRUAL OF THE CAUSE OF ACTION 293By deciding that the statute should apply, Ineed to address the argument raised by amicuscuriae calling for a judicially created exception toR.C.W. 4.16.310 for fraudulent concealment. Thiscourt long ago stated that absent "a statute makingconcealment an exception to the statute oflimitations, the court cannot create one." Reeves v.John Davis & Co., 164 Wash. 287, 295, 2 P.2d 732(1931) (citing Cornell v. Edsen, 78 Wash. 662, 139P. 602 (1914)). This statement is equallyapplicable in the context of a statute of repose.Although the proposed exception might makesense as a matter of policy, the argument raised byamicus should be addressed to the Legislature, notthis court.The trial court's summary judgment in favorof Island Construction Company should beaffirmed.CALLOW, C.J., concurs.builders to be protected in both their selling and buildingactivities when the two activities are so intimately related.PFEIFER V. CITY OF BELLINGHAM

294 7. STATUTES OF LIMITATION§ C. Tolling of the LimitationPeriodSTRAHLER v. ST. LUKE'S HOSPITAL706 S.W.2d 7 (Mo. banc 1986)BILLINGS, JudgeThis appeal challenges the constitutionality ofMissouri's medical malpractice statute oflimitations, § 516.105, RSMo 1978, as it applies tominors. We ordered the case transferred to thisCourt prior to opinion by the court of appealsbecause of the constitutional issue. MO. CONST.art. V, § 10. We reverse the dismissal of plaintiff'spetition and remand the case for furtherproceedings.On September 23, 1982, plaintiff Carol A.Strahler, then nineteen years old, filed a singlecount petition for damages in the Circuit Court ofJackson County. Plaintiff's petition alleged thatwhen she was a fifteen year old minor, defendantDr. Sandow and four other named defendants hadprovided her with careless and negligent medicaltreatment and that as a direct and proximate resultof defendants' negligence, she suffered thecomplete amputation of her right leg above theknee.Defendants moved to dismiss the action onthe ground that plaintiff's common law cause ofaction was barred by § 516.105, RSMo 1978,because a suit of this kind must be brought withintwo years from the date of the complained ofactionable wrong and plaintiff did not bring suituntil four years after the alleged malpractice.Plaintiff appeals from the trial court's orderdismissing her medical malpractice action againstdefendant Dr. Sandow. 1Section 516.105 is as follows:Actions against health careproviders (medical malpractice.) - Allactions against physicians, hospitals,dentists, registered or licensed practical1The four other defendants who were named in thepetition have reached a settlement with plaintiff and are nolonger parties to this action.nurses, optometrists, podiatrists,pharmacists, chiropractors, professionalphysical therapists, and any other entityproviding health care services and allemployees of any of the foregoing actingin the course and scope of theiremployment, for damages formalpractice, negligence, error or mistakerelated to health care shall be broughtwithin two years from the date ofoccurrence of the act of neglectcomplained of, except that a minor 2 underthe full age of ten years shall have untilhis twelfth birthday to bring action, andexcept that in cases in which the act ofneglect complained of its introducing andnegligently permitting any foreign objectto remain within the body of a livingperson, the action shall be brought withintwo years from the date of the discoveryof such alleged negligence, or from thedate on which the patient in the exerciseof ordinary care should have discoveredsuch alleged negligence, whichever datefirst occurs, but in no event shall anyaction for damages for malpractice, error,or mistake be commenced after theexpiration of ten years from the date ofthe act of neglect complained of.Although plaintiff has propounded a numberof constitutional arguments, 3 the dispositivechallenge that she raises to the constitutionality of2In Missouri a minor, or infant, in connection with thecommencement of a civil action, is defined as any personwho has not attained the age of eighteen years. Section507.115, RSMo 1978. And, when a minor sustains injuriesdue to another's negligence, he acquires his ownindependent common law cause of action, separate anddistinct from any his parents may acquire from thetortfeasor's negligent acts. See generally, Evans v. FarmersElevator Co. 347 Mo. 326, 147 S.W.2d 593 (1941).3Plaintiff has also advanced state and federal equalprotection and due process arguments as well as the theorythat § 516.105, RSMo 1978, constitutes a special or locallaw in violation of article 3, § 40 of our state constitution.Our disposition of plaintiff's challenge to § 516.105, RSMo1978, under MO. CONST., art. I, § 14 eliminates thenecessity of reaching the merits of these otherconstitutional points.STRAHLER V. ST. LUKE’S HOSPITAL

§ C. TOLLING OF THE LIMITATION PERIOD 295§ 516.105, RSMo 1978, is that it violates themandate of MO. CONST. art. I, § 14, whichguarantees to every Missouri citizen "that thecourts of justice shall be open to every person, andcertain remedy afforded for every injury toperson...."We begin our analysis by pointing out thatalthough our federal Constitution is an importantand frequently relied upon source of individualrights, our state Constitution is also a reservoir ofpersonal rights and liberties - some of which arenot enumerated in or accorded protection by ourfederal Constitution. Article I, section 14 is onesuch provision in our state Constitution whichgrants to the people of Missouri an expressconstitutional guarantee not enumerated in ourfederal Constitution. But see Logan v. ZimmermanBrush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L.Ed. 2d 265 (1982); Boddie v. Connecticut, 401U.S. 371, 91 S. Ct. 780, 28 L. Ed. 2d 113 (1971).In State ex rel. Cardinal Glennon MemorialHospital v. Gaertner, 583 S.W.2d 107 (Mo. banc1979), we found Missouri's statutorily mandatedProfessional Liability Review Board, §§ 538.010-.080, RSMo 1978, violative of MO. CONST. art. I,§ 14 because it imposed an unduly burdensomeprecondition on a litigant's right of access to thecourts. State ex rel. Cardinal Glennon v. Gaertner,583 S.W.2d at 110. Our holding in CardinalGlennon simply reaffirmed the principle that MO.CONST. art. I, § 14 is a part of this State's organiclaw and that it was intended to give constitutionalprotection to a litigant's ability to gain access toMissouri's courts. See generally, DeMay v. LibertyFoundry Co., 327 Mo. 495, 37 S.W.2d 640 (1931);see also State ex rel. National Refining Co., v.Seehorn, 344 Mo. 547, 127 S.W.2d 418 (1939).The language contained in MO. CONST. art. I, § 14is not simply advisory in nature: it gives expressconstitutional protection to a litigant's right ofaccess to our court system.Here, plaintiff contends that § 516.105, RSMo1978 - in violation of MO. CONST. art. I, § 14 -unconstitutionally devitalizes and effectivelyextinguishes her common law right and practicalopportunity to seek legal redress for injuriessustained through defendant's alleged negligentmedical treatment. Defendant, however, arguesthat § 516.105, RSMo 1978, does not contraveneMO. CONST. art. I, § 14 because plaintiff, who wasfifteen years of age at the time of the allegedmalpractice, could have recruited a next friend tobring suit and was thus able to institute an actionin her own right under Missouri law.In Missouri, a person who is under the legaldisability of minority still lacks capacity toinstitute, in his own right, a civil lawsuit. See Scottv. Royston, 223 Mo. 568, 123 S.W. 454 (1909);see, e.g., Martin v. Martin, 539 S.W.2d 756 (Mo.App. 1976) (an award of child support is made tothe custodial parent for the benefit of children whobecause of minority lack legal status to bring suitdirectly). Rule 52.02(a) requires that "civil actionsby minors ... be commenced and prosecuted onlyby a duly appointed guardian ... or by a next friendappointed for him...." This legal principle is alsocodified in statutory form and is found at §§507.110-.120, RSMo 1978.Defendant suggests that Rule 52.02(c) servesto relieve a minor who is at least fourteen years ofage of the legal disability of minority. To thecontrary, Rule 52.02(c) provides only that in thecase of a minor who is fourteen or older,appointment of a next friend can be made withoutnotice to the persons with whom the minorresides, and it can be accomplished without formalapplication to the court. The minor, however, muststill have a next friend who agrees in writing toserve as such. This provision of Rule 52 simplydoes not imbue a minor who is at least fourteenyears old with the legal capacity necessary tomaintain a civil action in his own right. 4It should not escape notice that although thepresent case involves a fifteen year old minor, §4Defendant also cites Rule 52.02(m) and our decisionin Concerned Parents v. Caruthersville School District 18,548 S.W.2d 554 (Mo. banc 1977), as additional authorityfor the proposition that appellant was free to initiate herown law suit as a fifteen year old minor.In Concerned Parents, we determined only that the minorplaintiffs' failure to comply with our rules governingappointment of a next friend proved to be harmless underRule 52.02(m) because it was shown that the minors'interests had been adequately protected. We note that theadult plaintiffs, though not formally appointed, were thenatural guardians of the minor plaintiffs and were also realparties in interest. We also instructed the parties to complywith the rule upon remand. Concerned Parents, supra, at558, n.3. Rule 52.02(m) provides only that the failure toappoint a next friend will not render a proceeding invalid ifit is determined that the interests of the minor wereadequately protected. Application of this rule contemplatesa minor gaining entry to the courtroom. In the present case,however, the rule would have no application because theminor was barred from ever getting inside the courthousedoors.STRAHLER V. ST. LUKE’S HOSPITAL

296 7. STATUTES OF LIMITATION516.105, RSMo 1978, applies with equal force toall minors past the ripe old age of ten. 5 We thinkdefendant's contention that plaintiff should notnow be heard to complain because she was free to"initiate her own suit" plainly ignores thedisabilities and limitations that childhood, familialrelationships, and our legal system place upon aminor of tender years - who has little if anyunderstanding of the complexities of our legalsystem.The many value-laden issues to which thiscontroversy gives rise were eloquently distilledand put into sharp relief by a commentator writingin a recent edition of the Journal of LegalMedicine:State legislatures reacted in the 1970'sto a perceived crisis in medicalmalpractice insurance by enacting thesetypes of limitations provisions. Whilesuch provisions no doubt go somedistance in alleviating the problems ofmalpractice insurers and health careproviders, they do so only at a high cost.Their effect is to bar the malpractice suitsof minors without regard to the validity oftheir claims or the fact that the minors arewholly innocent in failing to timely pursuetheir claims. Such a result seems tounfairly penalize the blameless minor inorder to protect the potentially negligenthealth care provider. (emphasis added).Andrews, Infant Tolling Statutes inMedical Malpractice Cases: StateConstitutional Challenges, 5 J. LEGALMEDICINE, 469 (1984).The fact of the matter is that for most minorsthe opportunity to pursue a common law cause ofaction for injuries sustained from medicalmalpractice is one that is inextricably linked to thediligence and willingness of their parents to act ina responsible and timely manner. When faced witha controversy involving very similar legal issues,the Texas Supreme Court concluded that "it isneither reasonable nor realistic to rely uponparents, who may themselves be minors, or who5In this connection we note that under the operation of§ 516.105, RSMo 1978, minors under the full age of tenhave until two years after their tenth birthday to file anaction of this kind. See McLeran v. St. Luke's Hospital ofKansas City, 687 S.W.2d 892, 893 (Mo. banc 1985).may be ignorant, lethargic, or lack concern, tobring a malpractice lawsuit action within the timeprovided...." Sax v. Votteler, 648 S.W.2d 661, 667(Tex. 1983). In this connection, we think it isequally unreasonable to expect a minor, whoseparents fail to timely vindicate his legal rights, toindependently seek out another adult willing toserve as a next friend. Such an expectation wouldignore the realities of the family unit and thelimitations of youth.The Sax case involved a similarly restrictive,though not identical, medical malpracticelimitations period 6 which ran against minors, whounder Texas law lacked the capacity to bring theirown lawsuits. 7 The Texas Supreme Court held thatthe statute ran afoul of the state's constitutionaldue process clause and open courts provision. Thecourt employed a test that balanced the litigant'sright to redress and the extent to which this right6The Texas statute read as follows:Notwithstanding any other law, no claim against aperson or hospital covered by a policy of professionalliability insurance covering a person licensed topractice medicine or podiatry or certified toadminister anesthesia in this state or a hospitallicensed under the Texas Hospital Licensing Law, asamended (Art. 4437f, Vernon's Texas Civil Statutes),whether for breach of express or implied contract ortort, for compensation for a medical treatment orhospitalization may be commenced unless the actionis filed within two years of the breach or the tortcomplained of or from the date the medical treatmentthat is the subject of the claim or the hospitalizationfor which the claim is made is completed, except thatminors under the age of six years shall have until theireighth birthday in which to file or have filed on theirbehalf, such claim. Except as herein provided, thissection applies to all persons regardless of minority orother legal disability. TEXAS INS. CODE ANN. art. 5.82(Vernon 1975) (repealed 1977).7Texas is not the only jurisdiction which has held astate medical malpractice limitations statuteunconstitutional as applied to minors. See Barrio v. SanManuel Div., Magma Copper, 143 Ariz. 101, 692 P.2d 280(1984) (statute unconstitutional under Arizona's stateconstitutional guarantee against abolition of thefundamental right to recover damages by way of acommon law action); Carson v. Maurer, 120 N.H. 925,424 A.2d 825 (1980) (statute violates state constitutionbecause it contravenes equal protection principles);Schwan v. Riverside Methodist Hosp., 6 Ohio St. 3d 300,452 N.E.2d 1337 (1983) (statute declared unconstitutionalunder state equal protection analysis).STRAHLER V. ST. LUKE’S HOSPITAL

§ C. TOLLING OF THE LIMITATION PERIOD 297had been burdened against the legislative purposeof the statute and the method employed by thelegislature to reach the ends desired. Afterapplying this test, the Texas Supreme Court heldthe statute to be an arbitrary and unreasonableexercise of legislative power as it pertains tominors because the statute "effectively abolishes aminor's right to bring a well-established commonlaw cause of action without providing a reasonablealternative." Sax v. Votteler, 648 S.W.2d at 667.Turning to the present case, we fullyappreciate the legislative purpose intended by §516.105, RSMo 1978, and we are unwilling todenominate it as being illegitimate, but we thinkthe method employed by the legislature to battleany escalating economic and social costsconnected with medical malpractice litigationexacts far too high a price from minor plaintiffslike Carol Strahler and all other minors similarlysituated. For minor plaintiffs like Carol Strahler,the cure selected by the legislature would prove noless pernicious than the disease it was intended toremedy.The requirement that "[c]ivil actions byminors may be commenced and prosecuted onlyby a duly appointed guardian of such minor ..."(emphasis added), acts as an impediment to aminor's access to the courts. See Rule 52.02(a) and§ 507.110. That right of access is "an aspect of theright to petition the government ... explicitlypreserved in the constitution of Missouri." State exrel. Cardinal Glennon Memorial Hosp. v.Gaertner, 583 S.W.2d at 110.Recognizing that a minor lacks the legalcapacity to bring an action in his own right as wellas the difficulties which generally surround aminor's ability to vindicate, by his own initiative,his legal rights, our statutes of limitationsapplicable to personal injury suits havetraditionally been tolled for minors. Section516.170, RSMo Cum. Supp. 1984. Theprosecution of an action by a guardian or nextfriend is an option available to the minor; failureof a next friend to bring the action during minoritydoes not, however, destroy the cause of action,generally speaking. Nor for that matter does therunning of a statute of limitations technically"destroy" a minor plaintiff's right of action: itmerely bars the maintenance of the action andleaves the injured party without a remedy. Seegenerally, Herrman v. Dixon, 285 S.W.2d 716(Mo. App. 1956). Thus, the general tollingprovisions of § 516.170 preserve the cause ofaction for a minor and safeguard the minor'sconstitutionally guaranteed right of access to thecourts - even if parents, guardians or others havingcustody of a child fail to protect the child's legalrights.The statutory limitation period, as applied tominors, violates their right of access to our courts 8under MO. CONST. art. I, § 14 and renders vacantthe guarantee contained in this constitutionalprovision which declares in no uncertain terms"that the courts of justice shall be open to everyperson, and certain remedy afforded for everyinjury to person...." To the extent that it deprivesminor medical malpractice claimants the right toassert their own claims individually, makes themdependent on the actions of others to assert theirclaims, and works a forfeiture of those claims ifnot asserted within two years, the provisions of §516.105 are too severe an interference with aminors' state constitutionally enumerated right ofaccess to the courts to be justified by the state'sinterest in remedying a perceived medicalmalpractice crisis.Our society takes great pride in the fact thatthe law remains forever at the ready to "jealouslyguard" the rights of minors. Section 516.105,RSMo 1978 arbitrarily and unreasonably deniesthem a set of rights without providing anyadequate substitute course of action for them tofollow. We consider § 516.105, RSMo 1978, as itpertains to minors, a statutory aberration which8According to defendant, the result we reach today isforeclosed by our decision in Laughlin v. Forgrave, 432S.W.2d 308 (Mo. 1968). Our decision in Laughlin,however, does not speak to the issues raised in the presentcase - because in Laughlin we decided only that themedical malpractice statute of limitations in force at thattime, § 516.140, RSMo 1959, was not tolled until thedamage complained of was discovered.In the course of our decision we also reaffirmed theunquestioned right of the legislature to enact statutes oflimitations, but we also noted in the same breath that thelegislature is not empowered to create a statute oflimitations which would be "unreasonable" - that is onewhich would infringe upon an enumerated constitutionalright. Though we found the operation of the particularstatute of limitations in Laughlin to be harsh and ourdecision distasteful, we nevertheless concluded that theplaintiff failed to demonstrate how the statute wasconstitutionally infirm. In the present case, however, theplaintiff has succeeded at this task. Our holding inLaughlin does not remedy the constitutional infirmitypresent in § 516.105, RSMo 1978.STRAHLER V. ST. LUKE’S HOSPITAL

298 7. STATUTES OF LIMITATIONruns afoul of our state Constitution and weaccordingly hold it constitutionally infirm.The judgment is reversed and the caseremanded to the circuit court for furtherproceedings. 9HIGGINS, C.J., and RENDLEN, J., concur.ROBERTSON, J., concurs in separate opinionfiled.BLACKMAR, DONNELLY andWELLIVER, JJ., dissent in separate opinionsfiled.ROBERTSON, J., concurring. (opinionomitted)BLACKMAR, Judge, dissentingTwo assumptions necessarily underlie thestatute in issue, as follows: (1) parents, guardians,or others having custody of children may bedepended upon to protect the children's legalrights, and (2) a child of the age of 10 and above isable to advise his custodian of any physicalproblems which might indicate a need for inquiryas to possible medical malpractice.These assumptions are not unreasonable, andthe legislature is entitled to make them inbalancing the interests of claimants anddefendants, while drafting a statute of limitation.The statutes of limitation on wrongful deathactions, 1 and on securities claims, 2 have been heldto run against minors. Any protection, then, mustnecessarily come from parents or guardians. Anysuggested distinction between actions created bystatute and those existing at common law islacking in constitutional substance. The matter isone for legislative choice.* * *DONNELLY, Judge, dissenting. (opinionomitted)WELLIVER, Judge, dissentingI respectfully dissent.The obvious flaw in the principal opinion liesin the ease with which it reaches its conclusionwithout constitutional analysis and without theapplication of a constitutional test or standard.Under the guise of construing our StateConstitution, a majority of this Court hasemasculated the legislature's latest effort to dealwith the malpractice crisis and the crisis ofescalating medical costs. This they have donewhile the legislature was considering furtherlimitation and restriction of the existing law ofmalpractice. Such action is reminiscent of theLochner era, as it came to be known, 1 when stateand federal courts acted like super-legislatures instriking down legislation not consistent with theirown views.* * *9The dissent of WELLIVER, J., conjures up and thenknocks down the dual straw men of due process and equalprotection. The dissent of DONNELLY, J., creates a thirddiversion. As we carefully note this case is narrowly ruledunder the open courts guarantee found in Mo. Const. art. I,§ 14. Questions concerning limiting the amount ofrecovery, "caps", and other statute of limitations relating tominors are not before us in this case.1See, e.g. Crane v. Riehn, 568 S.W.2d 525 (Mo. banc1978) (superseded by statute as stated in State ex rel.Research Medical Center v. Peters, 631 S.W.2d 938 (Mo.App. 1982)); Kausch v. Bishop, 568 S.W.2d 532 (Mo. banc1978); Edmonsond v. Lakeside Hospital, 562 S.W.2d 361(Mo. banc 1978) (all holding minors to the provisions ofthe former Missouri wrongful death statute whichprevented minors from bringing suit more than one yearfollowing the death of a parent if a parent of the decedentwas alive).2Buder v. Merrill Lynch, Pierce, Fenner & Smith, 486F. Supp. 56 (E.D. Mo.1980), aff'd., 644 F.2d 690 (8th Cir.1981).1See generally A. PAUL, CONSERVATIVE CRISIS & THERULE OF LAW: ATTITUDES OF BAR & BENCH, 1870-1895(1976); B. SIEGAN, ECONOMIC LIBERTIES AND THECONSTITUTION (1980); Currie, The Constitution in theSupreme Court: The Protection of Economic Interests," 52U. CHI. L. REV. 324 (1985).STRAHLER V. ST. LUKE’S HOSPITAL

PART IIIMODIFICATION OF DUTY BYSTATUS AND RELATIONSHIPS

300 PART III: MODIFICATION OF DUTY BY STATUS AND RELATIONSHIPSIntroductionIn Chapter One we looked at two majortheories by which a defendant can be made liablefor a plaintiff's injuries: negligence and strictliability. I noted at that time that the question of"duty" is a deceptively difficult one. In thischapter we return to the issue of duty, and seek toanswer the question in the abstract, "How do weknow whether a defendant owes a duty of care to aplaintiff, and what that duty is?" Our earlierapproximation of that question was that most ofthe time the defendant must use reasonable carefor the plaintiff's safety. That is true of the vastmajority of cases. However, several qualificationsmust be made:(1) sometimes the nature of the relationshipbetween defendant and plaintiff requires amodification of that standard. For example, specialrules apply in premises liability (Chapter Eight),product liability (Chapter Nine) and ProfessionalNegligence cases (Chapter Ten).(2) Sometimes a defendant can escape liabilitybecause she can successfully claim that she wasunder no duty to use reasonable care at all. Thesecases include rescuers, agencies responsible forprotection of the public (police, fire, etc.). Thequestion in those cases is when a defendant'sfailure to act is actionable under negligenceprinciples.In an earlier edition of this book I gave thissection the subtitle "The (Ir)relevance of Contract"because tort law is strangely unaffected by thefrequency with which tort law grows out of whatare essentially contractual relationships. Productsliability, medical malpractice, slip-and-fall,airplane crash, and other kinds of cases can belooked at as an outgrowth of some kind ofagreement between the plaintiff and the defendant:the landowner invites a visitor; the buyer agrees topurchase a product; the patient agrees to be treatedby the doctor. This is a luxury we do not alwayshave in tort law. In fact, one might argue that tortlaw ought to defer to contract law except in thosesituations where contract is unavailable: where theparties have no opportunity to bargain ahead oftime for who will bear the risks of injury arisingfrom their potential "collision." Thus, tort law isideally suited for intersection collisions, where theparties have no means of bargaining with eachother over who should bear what risks; butcontract would be ideally suited for doctor/patientor owner/visitor or seller/buyer relationships,where the parties have a much better (if stillimperfect 52 ) opportunity to decide. 53 Althoughcontract principles were to a large extent displacedby tort law in the 20th century, tort law continuesto reflect the origin of many important principlesin the law of contracts. Moreover, in decidingwhat duty of care to impose upon the defendant,courts may very well look at the kind ofrelationship that was formed prior to the injury.In a previous edition of this casebook, Iincluded an excerpt from a book that was hot offthe press when I was a first-year law student, but Inow shudder to think that it is more than thirtyyears old. Grant Gilmore wrote THE DEATH OFCONTRACT in the belief that “what is happening isthat „contract‟ is being reabsorbed into themainstream of „tort.‟” However, he acknowledgedthat there is a cyclical quality to trends in society,including law, and that the retreat from contractinto tort might be part of a cycle that would intime reverse itself. He pointed to the existence of“classical periods” being followed by “romantic”periods: “The romantics spurn the exquisitelystated rules of the preceding period; they52One justification for tort law's refusal to defer tocontract law is that in many "contractual" relationships thepotential plaintiff has only limited opportunity to make aninformed decision. The fine print on the back of a parkinglot stub should not be allowed to prevent the car ownerfrom recovering for negligent handling of his car by thelot. A similar argument is made where the consumer buys alawnmower or the patient checks into the hospital. Thisargument is well illustrated by the Henningsen case, infra§ 6B. Of course, even in contract law the language of thecontract is not always followed mechanically; there isalways U.C.C. § 2-302, preventing unconscionability.However, at some point the consumer must be given ameasure of freedom to structure the relationship, even if itmay mean the acceptance of a large measure of the risk.53Many of these issues are discussed in Atiyah, MedicalMalpractice and the Contract/Law Boundary, 49 L. &CONTEMP. PROB. 287 (Spring 1986); and Law, A ConsumerPerspective on Medical Malpractice, 49 L. & CONTEMP.PROB. 305 (Spring 1986).

INTRODUCTION 301experiment, they improvise; they deny theexistence of any rules; they churn around in anecstasy of self-expression. At the height of aromantic period, everything is confused,sprawling, formless and chaotic - as well asfrequently, extremely interesting. Then, theromantic energy having spent itself, there is a newclassical reformulation - and so the rhythmscontinue.”Twenty years after the publication ofGilmore‟s book, one commentator called his book“a huge success”: Robert A. Hillman, The Triumphof Gilmore’s THE DEATH OF CONTRACT, 90 N.W.U. L. REV. 32 (1995).Questions and Notes1. If your client has been damaged by someaction of the defendant, how do you know whetheryou should bring an action based upon breach of atort duty or breach of a contract?2. For another historical overview, seeSwanton, The Convergence of Tort and Contract,12 SYDNEY L. REV. 40 (1989).

Chapter 8Premises Liability§ A. The Status Distinctions1. Are the Status Distinctions Desirable?YOUNCE v. FERGUSON106 Wash. 2d 658, 724 P.2d 991 (1986)GOODLOE, JusticeIn this case, we determine whether thecommon law classifications of entrants as invitees,licensees, or trespassers should continue to bedeterminative of the standard of care owed by anowner or occupier of land and whether the statusof the entrant in this case was correctlydetermined. We answer both questionsaffirmatively and affirm the trial court.Appellant Lisa Younce appeals the dismissalof respondents Charles, Thelma, and Dean Strunkfrom the suit. Lisa was injured when a car drivenby Tamera Ferguson ran into her on a parcel ofStrunk property, where a high school graduation"kegger" party was being held.Dean Strunk, the son of Charles and ThelmaStrunk, was a member of the 1977 Evergreen HighSchool graduating class. Class members planned agraduation party to follow commencementexercises on June 7, 1977. Tickets to the partywere sold for $4.00 to purchase beer, food, andmusic. Dean made arrangements to and did buy 15kegs of beer from a local tavern for the party withticket proceeds. The party was originallyscheduled to be held on another class member'sproperty, but during the commencement exercisesit was generally agreed that the party would bemoved to the Strunk property on 109th Avenue.The 109th Avenue property was the largest ofeight parcels of land that Charles and ThelmaStrunk had under lease for farming purposes. Theproperty was located 6 miles or 8-9 minutesdriving time from the Strunk residence. Dean andhis younger brother, Brad, took care of familyduties at the property.Following commencement exercises, Deanwent home, changed clothes, and transported thekegs to the 109th Avenue property. Charles andThelma returned home from the commencementexercises around 10:20 p.m. to 10:30 p.m. Fromabout 11 p.m. to 11:10 p.m., four or five carloadsof people arrived at the Strunk residence askingthe location of the party. The Strunks also receiveda phone call from someone looking for the site.More than one inquirer advised the Strunks thatthe party was on Strunk property. Charles Strunkdrove to 4 parcels within 1 mile of the familyresidence to see if there was a party, testifying hewould have run the kids off the property if he hadfound them. He did not, however, check the 109thAvenue property.When Dean arrived at the 109th Avenueproperty around 11 p.m. with the kegs, 100-400minors were present, including graduating seniors,school mates, students from other schools, andother minors not attending school. Brad wascollecting tickets, directing cars to parking areas,and advising cars' occupants of the kegs' location.Tamera Ferguson, a minor, paid for attendancewhen she arrived. Lisa Younce, a minor, arrivedaround 11:30 p.m. with Judy Bock, who hadpreviously bought two tickets for their admission.Lisa and Judy had had one mixed drink beforearriving. They mixed another after arriving butLisa did not drink it.When the accident occurred, at approximately12:15 a.m., drinking had been going on at the sitefor at least an hour, but the party attendees werewell behaved. There had been no excessivedrinking except for Dean and Tamera, who bothadmitted they were intoxicated from alcoholconsumed at the party site. No automobile hadbeen driven through the area where partyattendees were standing. Lisa was standing in adimly lit grassy and gravel area near the main barnand approximately 150 feet away from the kegs.YOUNCE V. FERGUSON

§ A. THE STATUS DISTINCTIONS 303Lisa was hit from behind by a Volkswagen drivenby Tamera. The car hit her in the right knee andknocked her to the ground. Lisa was not under theinfluence of or affected by alcohol at the time shewas hit. Tamera left or was taken from the scene.Lisa was taken to the hospital. Charles and ThelmaStrunk were notified of the accident. They went tothe 109th Avenue property with cooking utensilsand prepared hamburgers from 1:30 a.m. to 5:30a.m. when the kegs were emptied and the lastattendees left.Dean and Lisa both knew that when minorsdrink they become intoxicated, and when theybecome intoxicated they will drive. Charles andThelma Strunk knew that minors drink at partiesLisa sued Tamera. The trial court found thatTamera had negligently injured Lisa and enteredjudgment for $69,543.31. Tamera did not appear attrial and has not appealed.Lisa also sued the Strunks. Her first theoryalleged negligence per se based on a violation ofR.C.W. 26.28.080 (selling or furnishingintoxicating liquor to a minor). Based on the caseof Hulse v. Driver, 11 Wash. App. 509, 524 P.2d255 (1974), the trial court dismissed this portionof the plaintiff's complaint with prejudice. Thisissue has not been appealed, and no argument hasbeen presented. Lisa's second theory which is thebasis of the entire appeal relates to the commonlaw classifications between invitee, licensee, andtrespasser and the duty of care owed by the owneror occupier of land.The trial court found that liability on the partof the Strunks depended upon Lisa's status on theproperty. The court found Lisa was a social guest,and therefore only a licensee. Applying the duty ofcare applicable to licensees and articulated inRESTATEMENT (SECOND) OF TORTS § 332 (1965),the trial court found the duty had not beenbreached. The Strunks were dismissed withprejudice. The court explained in its memorandumopinion, however, that if Lisa had been an inviteeand the duty of care therefore had been one ofreasonable care under all the circumstances, thecourt would have concluded that the Strunks hadbreached their duty to Lisa. The court also noted,however, that this was a case where Lisa couldappreciate the dangers or conditions of thepremises. Lisa appealed. The case is before thiscourt on an administrative transfer from the Courtof Appeals, Division Two.Two issues must be addressed. First, we mustdecide whether in a claim for injury against anowner or occupier of land, the standard of careowed should continue to turn upon the commonlaw distinctions between invitee, licensee, andtrespasser, or whether such distinctions should bereplaced by a negligence standard of reasonablecare under all the circumstances. Because weretain the common law classifications, we mustalso decide whether Lisa Younce was properlycharacterized as a licensee or whether she shouldhave been characterized as an invitee.Lisa argues that the common law distinctionsof invitee, licensee, and trespasser should nolonger determine the applicable standard of careowed by an owner or occupier of land inWashington. She urges they be abandoned andreplaced by a standard of reasonable care under allthe circumstances. See 16 GONZ. L. REV. 479(1981). Washington relies upon and has adoptedmany of the definitions and corresponding dutiesoutlined in RESTATEMENT (SECOND) OF TORTS(1965). Egede-Nissen v. Crystal Mt., Inc., 93Wash. 2d 127, 131-32, 606 P.2d 1214 (1980).In Egede-Nissen we acknowledged pastquestioning of the common law classificationscheme, see Ward v. Thompson, 57 Wash. 2d 655,660, 359 P.2d 143 (1961) ("timeworndistinctions"); Mills v. Orcas Power & Light Co.,56 Wash. 2d 807, 820, 355 P.2d 781 (1960)("ancient categories"), but decided that we werenot ready then to totally abandon the traditionalcategories and adopt a unified standard. Egede-Nissen, 93 Wash. 2d at 131, 606 P.2d 1214. Westill are not ready and reaffirm use of common lawclassifications to determine the duty of care owedby an owner or occupier of land.A recent annotation, Annot., Modern Status ofRules Conditioning Landowner's Liability UponStatus of Injured Party as Invitee, Licensee, orTrespasser, 22 A.L.R.4TH 294 (1983), outlines thecurrent positions of the different jurisdictions onthis issue. Retention of the common lawclassifications continues to be the majorityposition.Nine jurisdictions have abolished use of thecommon law classifications of invitees, licensees,and trespassers as determinative of thelandowner's or land occupier's duty of care. SeeAnnot., at 301-307; Rowland v. Christian, 69 Cal.2d 108, 443 P.2d 561, 70 Cal. Rptr. 97, 32A.L.R.3d 496 (1968); Pickard v. City & Cy. ofHonolulu, 51 Hawaii 134, 452 P.2d 445 (1969);Mile High Fence Co. v. Radovich, 175 Colo. 537,489 P.2d 308 (1971); Smith v. Arbaugh'sYOUNCE V. FERGUSON

304 8. PREMISES LIABILITYRestaurant, Inc., 152 U.S. App. D.C. 86, 469 F.2d97 (D.C. Cir. 1972); Mariorenzi v. Joseph Diponte,Inc., 114 R.I. 294, 333 A.2d 127 (1975); Ouellettev. Blanchard, 116 N.H. 552, 364 A.2d 631 (1976);Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868,386 N.Y.S.2d 564 (1976); Cates v. BeauregardElec. Coop., Inc., 328 So. 2d 367 (La. 1976);Webb v. Sitka, 561 P.2d 731 (Alaska 1977);Hudson v. Gaitan, 675 S.W.2d 699 (Tenn. 1984).The typical analysis in these cases includesnoting that England, where the distinctionsoriginated, has abolished them by statute.Occupiers' Liability Act, 1957, 5 and 6 Eliz. 2, ch.31. The cases also note that the United StatesSupreme Court refused to adopt the rules relatingto the liability of a possessor of land for the law ofadmiralty. Kermarec v. Compagnie GeneraleTransalantique, 358 U.S. 625, 630-31, 79 S. Ct.406, 409-10, 3 L. Ed. 2d 550 (1959).The cases rejecting the classifications list thesubtleties and subclassifications created in theirrespective jurisdictions. The opinions explain thatit is difficult to justify a system with so manyexceptions and that while the distinctions werejustified in feudal times, they are not justified inmodern society. As explained in Rowland, 69 Cal.2d at page 118, 443 P.2d 561, 70 Cal. Rptr. 97, thefirst case to reject the classifications:A man's life or limb does not becomeless worthy of protection by the law nor aloss less worthy of compensation underthe law because he has come upon theland of another without permission orwith permission but without a businesspurpose. Reasonable people do notordinarily vary their conduct dependingupon such matters, and to focus upon thestatus of the injured party as a trespasser,licensee, or invitee in order to determinethe question whether the landowner has aduty of care, is contrary to our modernsocial mores and humanitarian values.The common law rules obscure ratherthan illuminate the proper considerationswhich should govern determination of thequestion of duty.Rowland then announced the standard fordetermining the liability of the possessor of landwould be "whether in the management of hisproperty he has acted as a reasonable man in viewof the probability of injury to others, and, althoughthe plaintiff's status as a trespasser, licensee, orinvitee may in the light of the facts giving rise tosuch status have some bearing on the question ofliability, the status is not determinative." Rowland,at 119, 443 P.2d 561, 70 Cal. Rptr. 97. Theprinciple is generally referred to as the reasonablecare under all of the circumstances standard.Six jurisdictions have abolished thedistinction between licensee and invitee. SeeAnnot., at 307-10; Peterson v. Balach, 294 Minn.161, 199 N.W.2d 639 (1972); Mounsey v. Ellard,363 Mass. 693, 297 N.E.2d 43 (1973); Wood v.Camp, 284 So. 2d 691 (Fla. 1973) (extendingreasonable care to social guests or invitedlicensees but retaining distinction for uninvitedlicensees and trespassers); Antoniewicz v.Reszczynski, 70 Wis. 2d 836, 236 N.W.2d 1(1975); O'Leary v. Coenen, 251 N.W.2d 746 (N.D.1977); Poulin v. Colby College, 402 A.2d 846(Me. 1979). The rationales for abandoning thedistinction between invitee and licensee are thesame as the rationales given by the casesabolishing the distinction between all threeclassifications. The reason given for not extendingthe standard of reasonable care to trespassers isthat even in modern society it is significant that atrespasser does not come upon property under acolor of right o that a trespasser was not involvedin the case where the distinction between licenseeand invitee was abolished.However, the majority of jurisdictions havenot rejected the classifications. See Annot., at 310-12. Some have directly confronted the issue ofwhether to abandon the distinctions and havedeclined to do so. Whaley v. Lawing, 352 So. 2d1090 (Ala. 1977); Bailey v. Pennington, 406 A.2d44 (Del. 1979); Huyck v. Hecla Mining Co., 101Idaho 299, 612 P.2d 142 (1980); Hessler v. Cole, 7Ill. App. 3d 902, 289 N.E.2d 204 (1972);Gerchberg v. Loney, 223 Kan. 446, 576 P.2d 593(1978); Murphy v. Baltimore Gas & Elec. Co., 290Md. 186, 428 A.2d 459 (1981) (choose not toabandon at least with respect to trespassers);Astleford v. Milner Enters., Inc., 233 So. 2d 524(Miss. 1970); Steen v. Grenz, 167 Mont. 279, 538P.2d 16 (1975); Buchanan v. Prickett & Son, Inc.,203 Neb. 684, 279 N.W.2d 855 (1979); Moore v.Denune & Pipic, Inc., 26 Ohio St. 2d 125, 269N.E.2d 599 (1971); Sutherland v. Saint FrancisHosp., Inc., 595 P.2d 780 (Okla. 1979); Buchholzv. Steitz, 463 S.W.2d 451 (Tex. Civ. App. 1971);Tjas v. Proctor, 591 P.2d 438 (Utah 1979);Yalowizer v. Husky Oil Co., 629 P.2d 465, 22A.L.R.4th 285 (Wyo. 1981). Some withoutYOUNCE V. FERGUSON

§ A. THE STATUS DISTINCTIONS 305directly confronting the issue, or by deferring to ahigher appellate court, continue to adhere to thecommon law classifications. Nicoletti v. Westcor,Inc., 131 Ariz. 140, 639 P.2d 330 (1982); Ramseyv. Mercer, 142 Ga. App. 827, 237 S.E.2d 450(1977); Barbre v. Indianapolis Water Co., 400N.E.2d 1142 (Ind. App. 1980); Champlin v.Walker, 249 N.W.2d 839 (Iowa 1977); Davis v.Jackson, 604 S.W.2d 610 (Mo. App. 1980); Caroffv. Liberty Lumber Co., 146 N.J. Super. 353, 369A.2d 983 (1977); Andrews v. Taylor, 34 N.C. App.706, 239 S.E.2d 630 (1977); Taylor v. Baker, 279Or. 139, 566 P.2d 884 (1977); Crotty v. ReadingIndus., Inc., 237 Pa. Super. 1, 345 A.2d 259(1975); Copeland v. Larson, 46 Wis. 2d 337, 174N.W.2d 745 (1970).The reasons proffered for continuing thedistinctions include that the distinctions have beenapplied and developed over the years, offering adegree of stability and predictability and that aunitary standard would not lessen the confusion.Furthermore, a slow, piecemeal developmentrather than a wholesale change has beenadvocated. Some courts fear a wholesale changewill delegate social policy decisions to the jurywith minimal guidance from the court. SeeHawkins, Premises Liability After Repudiation ofthe Status Categories: Allocation of Judge andJury Functions UTAH L. REV. 15 (1981). Also, it isfeared that the landowner could be subjected tounlimited liability.We find these reasons to be compelling. Asnoted by the Kansas court in Gerchberg, 223 Kan.at pages 450-51, 576 P.2d 593: "The traditionalclassifications were worked out and the exceptionswere spelled out with much thought, sweat andeven tears". We are not ready to abandon them fora standard with no contours. It has been arguedthat jury instructions can provide adequateguidance. In fact, amicus has suggested and othercourts have found that the following factorsshould be considered by the jury: (1) thecircumstances under which the entrant was on theproperty; (2) the foreseeability of the injury ordamage given the type of condition involved; (3)the nature of the property and its uses; (4) thefeasibility of either correcting the condition on theproperty or issuing appropriate warnings; and (5)such other factors as may be relevant in theparticular case. These factors are similar to theconcerns being addressed by the currentRESTATEMENT rules and caselaw. We do notchoose to erase our developed jurisprudence for ablank slate. Common law classifications continueto determine the duty owed by an owner oroccupier of land in Washington.Lisa argues alternatively that, if the commonlaw classifications are retained, she wasincorrectly characterized as a licensee at trial. Lisaargues that she should have been characterized asan invitee under the facts of this case. Lisa's statuson the property determines the standard of careowed her by the Strunks.In McKinnon v. Washington Fed. Sav. & LoanAss'n, 68 Wash. 2d 644, 650, 414 P.2d 773 (1966),this court adopted the RESTATEMENT (SECOND) OFTORTS § 332 (1965) definition of invitee. Aninvitee is owed a duty of ordinary care.Section 332 defines an invitee as follows:(1) An invitee is either a publicinvitee or a business visitor.(2) A public invitee is a person who isinvited to enter or remain on land as amember of the public for a purpose forwhich the land is held open to the public.(3) A business visitor is a person whois invited to enter or remain on land for apurpose directly or indirectly connectedwith business dealings with the possessorof the land.A licensee is defined as "a person who isprivileged to enter or remain on land only byvirtue of the possessor's consent." RESTATEMENT,§ 330. A licensee includes a social guest, that is, aperson who has been invited but does not meet thelegal definition of invitee. In Memel v. Reimer, 85Wash. 2d 685, 689, 538 P.2d 517 (1975), this courtreplaced the willful and wanton misconductstandard of care toward licensees with a duty toexercise reasonable care toward licensees wherethere is a known dangerous condition on theproperty which the possessor can reasonablyanticipate the licensee will not discover or will failto realize the risks involved. Memel specificallyadopted the standard of care for licensees outlinedin RESTATEMENT, § 342:A possessor of land is subject toliability for physical harm caused tolicensees by a condition on the land if, butonly if,(a) the possessor knows or hasreason to know of the condition andshould realize that it involves anunreasonable risk of harm to suchlicensees, and should expect that theyYOUNCE V. FERGUSON

306 8. PREMISES LIABILITYwill not discover or realize thedanger, and(b) he fails to exercise reasonablecare to make the condition safe, or towarn the licensees of the conditionand the risk involved, and(c) the licensees do not know orhave reason to know of the conditionand the risk involved. (Italics ours.)Memel, at 689, 691, 538 P.2d 517.The possessor fulfills his duty by making thecondition safe or warning of its existence.Lisa contends that she was a member of thepublic on the land for a purpose for which the landis held open and therefore is an invitee. Wedisagree. The facts of this case do not parallel thefacts of other cases where the plaintiff was foundto be a public invitee. In McKinnon, a federalsavings and loan association posted a sign sayingit had meeting rooms available for public use. Theplaintiff in McKinnon was part of a Girl Scoutgroup using the room for Scout meetings. InFosbre v. State, 70 Wash. 2d 578, 424 P.2d 901(1967), the plaintiff was injured at a recreationalarea on a National Guard fort. The area had beenimproved and maintained for use by NationalGuard families of which plaintiff was a member.In these "invitee" cases, "the occupier, by hisarrangement of the premises or other conduct, hasled the entrant to believe that the premises wereintended to be used by visitors, as members of thepublic, for the purpose which the entrant waspursuing, and that reasonable care was taken tomake the place safe for those who enter for thatpurpose." (Italics ours.) McKinnon, 68 Wash. 2d at649, 414 P.2d 773. See W. PROSSER, TORTS § 61,at 388-89 (4th ed. 1971); RESTATEMENT, § 332,commente d.This implied assurance helps to distinguishbetween invitees and social guests, who areconsidered licensees. As explained in commenth(3) to RESTATEMENT, § 330:The explanation usually given by thecourts for the classification of socialguests as licensees is that there is acommon understanding that the guest isexpected to take the premises as thepossessor himself uses them, and does notexpect and is not entitled to expect thatthey will be prepared for his reception, orthat precautions will be taken for hissafety, in any manner in which thepossessor does not prepare or takeprecautions for his own safety, or that ofthe members of his family.Under the facts of this case, it is hard toimagine how the Strunks could have prepared orcould have been expected to prepare a dairy farmfor a kegger.We are not persuaded by Lisa's argument thatpayment of a $4.00 admission price made her aninvitee. Analysis in cases where an admission waspaid and the plaintiff was characterized as aninvitee did not focus on the money as indicative ofthe plaintiff's status as an invitee. Hooser v. LoyalOrder of Moose, Inc., 69 Wash. 2d 1, 416 P.2d462, 15 A.L.R.3d 1008 (1966) ($1.00 for NewYear's Eve Party held at Moose Lodge); Dickinsonv. Tesia, 2 Wash. App. 262, 467 P.2d 356 (1970)($2.00 for picnic in recreational area).The trial court correctly identified Lisa as alicensee. She was privileged to enter or remain onthe land only by virtue of the owner's consent. Wequestion whether Charles and Thelma did consentto her presence on the property, but recognize thatDean did consent. In any event, we find the dutyowed licensees was not breached because noknown dangerous condition existed of which Lisawas not aware or of which she did not realize therisks involved. Lisa had knowledge of the risksinvolved by staying on the property. We affirm thetrial court.DOLLIVER, C.J., and PEARSON, UTTER,CALLOW, BRACHTENBACH, ANDERSEN,DORE and DURHAM, JJ.ROWLAND v. CHRISTIAN70 Cal. Rptr. 97, 443 P.2d 561 (1968)PETERS, JusticePlaintiff appeals from a summary judgmentfor defendant Nancy Christian in this personalinjury action.In his complaint plaintiff alleged that aboutNovember 1, 1963, Miss Christian told the lessorsof her apartment that the knob of the cold waterfaucet on the bathroom basin was cracked andYOUNCE V. FERGUSON

§ A. THE STATUS DISTINCTIONS 307should be replaced; that on November 30, 1963,plaintiff entered the apartment at the invitation ofMiss Christian; that he was injured while using thebathroom fixtures, suffering severed tendons andnerves of his right hand; and that he has incurredmedical and hospital expenses. He further allegedthat the bathroom fixtures were dangerous, thatMiss Christian was aware of the dangerouscondition, and that his injuries were proximatelycaused by the negligence of Miss Christian.Plaintiff sought recovery of his medical andhospital expenses, loss of wages, damage to hisclothing, and $100,000 general damages....Section 1714 of the Civil Code provides:"Every one is responsible, not only for the resultof his willful acts, but also for an injuryoccasioned to another by his want of ordinary careor skill in the management of his property orperson, except so far as the latter has, willfully orby want of ordinary care, brought the injury uponhimself...." This code section, which has beenunchanged in our law since 1872, states a civil lawand not a common law principle. (Fernandez v.Consolidated Fisheries, Inc., 98 Cal. App. 2d 91,96, 219 P.2d 73.)* * *California cases have occasionally stated asimilar view: "All persons are required to useordinary care to prevent others being injured as theresult of their conduct." Although it is true thatsome exceptions have been made to the generalprinciple that a person is liable for injuries causedby his failure to exercise reasonable care in thecircumstances, it is clear that in the absence ofstatutory provision declaring an exception to thefundamental principle enunciated by section 1714of the Civil Code, no such exception should bemade unless clearly supported by public policy.A departure from this fundamental principleinvolves the balancing of a number ofconsiderations; the major ones are theforeseeability of harm to the plaintiff, the degreeof certainty that the plaintiff suffered injury, thecloseness of the connection between thedefendant's conduct and the injury suffered, themoral blame attached to the defendant's conduct,the policy of preventing future harm, the extent ofthe burden to the defendant and consequences tothe community of imposing a duty to exercise carewith resulting liability for breach, and theavailability, cost, and prevalence of insurance forthe risk involved....One of the areas where this court and othercourts have departed from the fundamentalconcept that a man is liable for injuries caused byhis carelessness is with regard to the liability of apossessor of land for injuries to persons who haveentered upon that land. It has been suggested thatthe special rules regarding liability of thepossessor of land are due to historicalconsiderations stemming from the high placewhich land has traditionally held in English andAmerican thought, the dominance and prestige ofthe landowning class in England during theformative period of the rules governing thepossessor's liability, and the heritage of feudalism.(2 HARPER AND JAMES, THE LAW OF TORTS,supra, p. 1432.)The departure from the fundamental rule ofliability for negligence has been accomplished byclassifying the plaintiff either as a trespasser,licensee, or invitee and then adopting special rulesas to the duty owed by the possessor to each of theclassifications. Generally speaking a trespasser isa person who enters or remains upon land ofanother without a privilege to do so; a licensee is aperson like a social guest who is not an invitee andwho is privileged to enter or remain upon land byvirtue of the possessor's consent, and an invitee isa business visitor who is invited or permitted toenter or remain on the land for a purpose directlyor indirectly connected with business dealingsbetween them. (Oettinger v. Stewart, 24 Cal. 2d133, 136, 148 P.2d 19, 156 A.L.R. 1221.)* * *The courts of this state have also recognizedthe failings of the common law rules relating tothe liability of the owner and occupier of land. Inrefusing to apply the law of invitees, licensees,and trespassers to determine the liability of anindependent contractor hired by the occupier, wepointed out that application of those rules wasdifficult and often arbitrary....* * *Without attempting to labor all of the rulesrelating to the possessor's liability, it is apparentthat the classifications of trespasser, licensee, andinvitee, the immunities from liability predicatedupon those classifications, and the exceptions tothose immunities, often do not reflect the majorfactors which should determine whether immunityshould be conferred upon the possessor of land.Some of those factors, including the closeness ofthe connection between the injury and theROWLAND V. CHRISTIAN

308 8. PREMISES LIABILITYdefendant's conduct, the moral blame attached tothe defendant's conduct, the policy of preventingfuture harm, and the prevalence and availability ofinsurance, bear little, if any, relationship to theclassifications of trespasser, licensee and inviteeand the existing rules conferring immunity.Although in general there may be arelationship between the remaining factors and theclassifications of trespasser, licensee, and invitee,there are many cases in which no such relationshipmay exist. Thus, although the foreseeability ofharm to an invitee would ordinarily seem greaterthan the foreseeability of harm to a trespasser, in aparticular case the opposite may be true. The samemay be said of the issue of certainty of injury. Theburden to the defendant and consequences to thecommunity of imposing a duty to exercise carewith resulting liability for breach may often begreater with respect to trespassers than withrespect to invitees, but it by no means follows thatthis is true in every case. In many situations, theburden will be the same, i.e., the conductnecessary upon the defendant's part to meet theburden of exercising due care as to invitees willalso meet his burden with respect to licensees andtrespassers. The last of the major factors, the costof insurance, will, of course, vary depending uponthe rules of liability adopted, but there is nopersuasive evidence that applying ordinaryprinciples of negligence law to the land occupier'sliability will materially reduce the prevalence ofinsurance due to increased cost or evensubstantially increase the cost.Considerations such as these have led somecourts in particular situations to reject the rigidcommon law classifications and to approach theissue of the duty of the occupier on the basis ofordinary principles of negligence. (E.g., Gould v.DeBeve, 117 U.S. App. D.C. 360, 330 F.2d 826,829-830; Anderson v. Anderson, supra, 251 Cal.App. 2d 409, 413, 59 Cal. Rptr. 342; Taylor v. NewJersey Highway Authority, 22 N.J. 454, 126 A.2d313, 317, 62 A.L.R.2d 1211; Scheibel v. Lipton,156 Ohio St. 308, 102 N.E.2d 453, 462-463; Pottsv. Amis, 62 Wash. 2d 777, 384 P.2d 825, 830-831;see Comment (1957) 22 MO. L. REV. 186; Note(1958) 12 RUTGERS L. REV. 599.) And thecommon law distinctions after thorough studyhave been repudiated by the jurisdiction of theirbirth. (Occupiers' Liability Act, 1957, 5 and 6 Eliz.2, ch. 31.)A man's life or limb does not become lessworthy of protection by the law nor a loss lessworthy of compensation under the law because hehas come upon the land of another withoutpermission or with permission but without abusiness purpose. Reasonable people do notordinarily vary their conduct depending upon suchmatters, and to focus upon the status of the injuredparty as a trespasser, licensee, or invitee in orderto determine the question whether the landownerhas a duty of care, is contrary to our modern socialmores and humanitarian values. The common lawrules obscure rather than illuminate the properconsiderations which should govern determinationof the question of duty.It bears repetition that the basic policy of thisstate set forth by the Legislature in section 1714 ofthe Civil Code is that everyone is responsible foran injury caused to another by his want ofordinary care or skill in the management of hisproperty. The factors which may in particularcases warrant departure from this fundamentalprinciple do not warrant the wholesale immunitiesresulting from the common law classifications,and we are satisfied that continued adherence tothe common law distinctions can only lead toinjustice or, if we are to avoid injustice, furtherfictions with the resulting complexity andconfusion. We decline to follow and perpetuatesuch rigid classifications. The proper test to beapplied to the liability of the possessor of land inaccordance with section 1714 of the Civil Code iswhether in the management of his property he hasacted as a reasonable man in view of theprobability of injury to others, and, although theplaintiff's status as a trespasser, licensee, or inviteemay in the light of the facts giving rise to suchstatus have some bearing on the question ofliability, the status is not determinative.Once the ancient concepts as to the liability ofthe occupier of land are stripped away, the statusof the plaintiff relegated to its proper place indetermining such liability, and ordinary principlesof negligence applied, the result in the instant casepresents no substantial difficulties. As we haveseen, when we view the matters presented on themotion for summary judgment as we must, wemust assume defendant Miss Christian was awarethat the faucet handle was defective anddangerous, that the defect was not obvious, andthat plaintiff was about to come in contact with thedefective condition, and under the undisputedfacts she neither remedied the condition norwarned plaintiff of it. Where the occupier of landis aware of a concealed condition involving in theROWLAND V. CHRISTIAN

§ A. THE STATUS DISTINCTIONS 309absence of precautions an unreasonable risk ofharm to those coming in contact with it and isaware that a person on the premises is about tocome in contact with it, the trier of fact canreasonably conclude that a failure to warn or torepair the condition constitutes negligence.Whether or not a guest has a right to expect thathis host will remedy dangerous conditions on hisaccount, he should reasonably be entitled to relyupon a warning of the dangerous condition so thathe, like the host, will be in a position to takespecial precautions when he comes in contact withit.* * *The judgment is reversed.TRAYNOR, C.J., and TOBRINER, MOSKand SULLIVAN, JJ., concur.BURKE, Justice (dissenting)I dissent. In determining the liability of theoccupier or owner of land for injuries, thedistinctions between trespassers, licensees andinvitees have been developed and applied by thecourts over a period of many years. They supply areasonable and workable approach to the problemsinvolved, and one which provides the degree ofstability and predictability so highly prized in thelaw. The unfortunate alternative, it appears to me,is the route taken by the majority in their opinionin this case; that such issues are to be decided on acase by case basis under the application of thebasic law of negligence, bereft of the guidingprinciples and precedent which the law hasheretofore attached by virtue of the relationship ofthe parties to one another.Liability for negligence turns upon whether aduty of care is owed, and if so, the extent thereof.Who can doubt that the corner grocery, the largedepartment store, or the financial institution owesa greater duty of care to one whom it has invitedto enter its premises as a prospective customer ofits wares or services than it owes to a trespasserseeking to enter after the close of business hoursand for a nonbusiness or even an antagonisticpurpose? I do not think it unreasonable or unfairthat a social guest (classified by the law as alicensee, as was plaintiff here) should be obligedto take the premises in the same condition as hishost finds them or permits them to be. Surely ahomeowner should not be obliged to hover overhis guests with warnings of possible dangers to befound in the condition of the home (e.g., waxedfloors, slipping rugs, toys in unexpected places,etc., etc.). Yet today's decision appears to open thedoor to potentially unlimited liability despite thepurpose and circumstances motivating the plaintiffin entering the premises of another, and despite thecaveat of the majority that the status of the partiesmay "have some bearing on the question ofliability...," whatever the future may show thatlanguage to mean.In my view, it is not a proper function of thiscourt to overturn the learning, wisdom andexperience of the past in this field. Sweepingmodifications of tort liability law fall moresuitably within the domain of the Legislature,before which all affected interests can be heardand which can enact statutes providing uniformstandards and guidelines for the future. I wouldaffirm the judgment for defendant.McCOMB, J., concurs.Questions and Notes1. Would you retain, modify or abolish thedistinctions between invitee, licensee andtrespasser?2. Since the modification of the landowner'sduty to a visitor is justified by an impliedagreement between the visitor and the landowner,what rules would you predict to apply when acondition of the land injures someone outside theland (e.g., where a tree limb falls from the owner'sproperty onto a passing motorist)?2. How is the Visitor's Status Determined?MARKLE v. HACIENDA MEXICANRESTAURANT570 N.E.2d 969 (Ind. App. 1991)MILLER, JudgeRobert Markle, Plaintiff-appellant, appeals theROWLAND V. CHRISTIAN

310 8. PREMISES LIABILITYgrant of a summary judgment in favor of HaciendaRestaurant, Prairie Jackson Corp., MillerMonuments, M.E. Miller Testamentary Trust andEasy Shopping Place Businessmen's Association(collectively referred to as the Shopping Center),Defendants-Appellees. Markle claimed he wasinjured in the parking lot of Easy Shopping PlaceShopping Center and alleged that the ShoppingCenter's negligent maintenance of the parking lotled to his injuries. The trial court determinedMarkle was a licensee at the time he was injured.Therefore, the only affirmative duty the ShoppingCenter owed to Markle was to refrain fromwillfully or wantonly injuring him. The court thengranted summary judgment in favor of theShopping Center. Markle now appeals, arguingthat the question of his status at the time of theinjury - invitee or licensee - is a question of fact,making summary judgment inappropriate. He alsorequests this court to abandon the common lawdistinction between invitee and licensee.We reverse, holding that Markle's status at thetime of his injury is a question of fact. Therefore,summary judgment should not have been granted.FactsThese facts are not disputed: On July 11,1986, Markle, a salesman for Ron's Painting, wasreturning to Elkhart, Indiana, after making salescalls, when he decided to eat at the HaciendaRestaurant in the Shopping Center in Elkhart.When he turned into the parking lot, he noticedTim Lusher, a friend and co-worker, sitting in histruck in the parking lot. Markle stopped his carnext to Lusher's truck, which was parked in amarked parking spot at the end of a row of parkingspaces. When Markle pulled up next to it, he wasnot in a marked parking spot. Markle askedLusher if he would take a twenty-five pound pieceof steel that Markle had in his car to work the nextmorning. Lusher agreed, and Markle got out of thecar to move the steel from his car to Lusher'struck. As he was lifting the steel into Lusher'struck, Markle stepped into a chuckhole with hisright foot. He fell, injuring his knee.On February 12, 187, Markle brought suitagainst Hacienda, Prairie Jackson Corporation asowners of the Shopping Center, and John Does.He amended his complaint in February, 1988, toinclude Miller Monument, Inc., and M.E. MillerTestamentary Trust as parties, alleging the partieshad an ownership interest in the shopping center.The Elkhart Superior Court granted summaryjudgment in favor of the Shopping Center onSeptember 6, 1989. The court entered thefollowing order:On April 27, 1989, this cause cameon for hearing on a Motion for SummaryJudgment by defendants. The facts are asfollows: On July 11, 1986 the plaintiff,Robert Markle, went to the EasyShopping Place Center to eat at theHacienda Restaurant. When the plaintiffarrived at Easy Shopping Place he saw afellow employee in the parking lot. Theplaintiff had a piece of sample steel thathe wished to transfer from his car to thefellow employee's pickup truck. Theplaintiff stepped in a chuckhole with hisright foot while he was putting the steelfrom his car into the pickup truck. Theplaintiff allegedly sustained injury as aresult of the fall.The central issue in this case iswhether the plaintiff is an invitee,trespasser, or licensee. Barbre v.Indianapolis [sic] (1980) Ind. App., 400N.E.2d 1142. The duty owed by an owneror occupant of land to one coming on thepremises depends largely on therelationship between them. Fort WayneNational Bank v. Doctor, (1971) 149 Ind.App. 365, 272 N.E.2d 876; Olson v.Kushner, (1965) 138 Ind. App. 73, 211N.E.2d 620. Under Indiana law, an inviteeis a person who goes onto the land ofanother at the express or impliedinvitation of owner or occupant either totransact business or for the mutual benefitof invitee and owner or occupant. Clem v.United States, 601 F. Supp. 835 (1985). Alicensee is one who enters premises ofanother for his own convenience,curiosity, or entertainment. Id. at 836.The facts of this case show theplaintiff entered the defendant's premisesas an invitee. This is clearly demonstratedby the plaintiff's intention to eat at theHacienda Restaurant. However, once theplaintiff decided to move the steel fromhis car, his status changed to that of alicensee. The transferring of the steel wasof no benefit to the owner of the premises,but rather the action was of benefit to theplaintiff and his employer. It is possiblefor a person's status to change once he hasentered the land of another. Standard OilMARKLE V. HACIENDA MEXICAN RESTAURANT

§ A. THE STATUS DISTINCTIONS 311Company of Indiana v. Scoville, 132 Ind.App. 521, 175 N.E.2d 711 (1961).The plaintiff cites Silvestro v. Walz,(1943) [222] Ind. [163], 51 N.E. [2d] 629as support for his case. The plaintiff'sargument is that the main relationshipbetween plaintiff and defendant was thatof invitee and the transferring of the pieceof steel was incidental to the mainrelationship of the invitee. The Silvestrocase is clearly distinguishable from thecase at bar. The Indiana Supreme Courtheld the defendant liable becausedefendant should have reasonablyexpected invitees to wander the entirebusiness premises. The question iswhether the defendant in this case couldhave reasonably expected plaintiff totransfer steel in this parking lot.Where controlling facts areundisputed, the determination of thestatus is for the court to determine.Standard Oil, supra. The plaintiff was notperforming an action incidental to hisprimary intention when he entered thepremises. An incidental task is an instancewhereby a business invitee doessomething which he could reasonably beexpected to do under the circumstances.The deviation from his main intentionwhen he entered the business premises isonly slight. For example, in the Silvestrocase, the plaintiff used the rest roomfacilities while waiting for car repairs. Inthat case, the owner of the premises couldhave reasonably expected the businessinvitee to do this.The transferring of the steel was notincidental to the plaintiff's main purpose.The facts of the case at bar more closelyresemble the facts of the Standard Oilcase, supra. The plaintiff in the case at barchanged his status once he entered thepremises. The facts of this case areundisputed.A summary judgment motion may beentered only where there is no genuineissue as to any material fact, and themoving party is entitled to judgment as amatter of law. First Savings and LoanAss'n v. Treater [Treaster], (1986) Ind.App., 490 N.E.2d 1149.The Court now holds that the plaintiffheld the status of licensee at the time ofthe accident. The only affirmative duty alandowner owes a licensee is to refrainfrom willfully or wantonly injuring him ina way which would increase the licensee'speril. French v. Sunburst Properties Inc.,(1988) Ind. App., 521 N.E.2d 1355. Therebeing no material dispute as to the facts,as a matter of law, summary judgmentmust be granted for the defendant. (R.110-12).Decision and DiscussionWhen we review a motion for summaryjudgment, we apply the same standards employedby the trial court. Ind. Trial Rule 56(C), TravelCraft v. Wilhelm Mende GMBH (1990), Ind., 552N.E.2d 443. Summary judgment may be grantedonly if the pleadings, depositions, answers tointerrogatories, and admissions on file, togetherwith affidavits and testimony, if any, show thatthere is no genuine issue of material fact and thatthe moving party is entitled to judgment as amatter of law. The court must liberally construe allevidence in favor of the non-movant. Even if thereare no conflicting facts, summary judgment isinappropriate where the undisputed facts lead toconflicting inferences. Id.In Indiana, the status of a person when he isinjured on the premises of another determines theduty owed to that person by the owner of theproperty. Barbre v. Indianapolis Water Co. (1980),Ind. App., 400 N.E.2d 1142. A person entering theland of another is either a trespasser, a licensee oran invitee. Burrell v. Meads (1991), Ind., 569N.E.2d 637. A landowner owes a trespasser theduty to refrain from willfully or wantonly injuringhim after discovering his presence and owes alicensee the duty to refrain from willfully orwantonly injuring him or acting in a manner toincrease his peril. Id. However, a landowner owesan invitee a duty to exercise reasonable care forthe invitee's protection while the invitee is on thelandowner's premises. Id.In Burrell, our supreme court was faced withthe question of how to determine whether oneentering the land of another is an invitee. Burrelland Meads were friends who, over the years,helped each other perform various tasks. Oneafternoon, Burrell worked on his car in Meads'garage. As Burrell was preparing to leave, Meadstold Burrell he would be installing a drop ceilingin the garage later that day. Burrell agreed to help.MARKLE V. HACIENDA MEXICAN RESTAURANT

312 8. PREMISES LIABILITYLater, Burrell climbed a ladder to remove someitems which were stored on top of the garagerafters. He was injured when he fell to the floor ofthe garage from the rafters.Burrell sued Meads for negligence, and thetrial court granted summary judgment for Meads.This court affirmed, holding that Burrell, a socialguest, was a licensee at the time of his injury andthat Meads owed him only the duty to refrain fromwillfully or wantonly injuring him or acting in away to increase his peril.Our supreme court vacated this court'sdecision, holding that invited social guests areinvitees and are entitled to a duty of reasonablecare from landowners. In reaching its decision, thecourt examined the two tests which have beenused by Indiana courts in determining inviteestatus - the "economic benefit test" and the"invitation test". The theory behind the "economicbenefit test" is to impose affirmative obligationson the landowner only in exchange for someconsideration or benefit. See, e.g., Hammond v.Allegretti (1974), 262 Ind. 82, 311 N.E.2d 821;Standard Oil Co. of Indiana v. Scoville (1961), 132Ind. App. 521, 175 N.E.2d 711. The court rejectedthe "economic benefit test" and instead adoptedthe "invitation test" as defined in theRESTATEMENT (SECOND) OF TORTS § 332:(1) An invitee is either a publicinvitee or a business visitor.(2) A public invitee is a person who isinvited to enter or remain on land as amember of the public for a purpose forwhich the land is held open to the public.(3) A business visitor is a person whois invited to enter or remain on land for apurpose directly or indirectly connectedwith business dealings with the possessorof the land. RESTATEMENT (SECOND) OFTORTS § 332, quoted in Burrell, supra, at642.Thus, an examination of the invitation itselfmust be the first step of any inquiry into inviteestatus. Burrell, supra, at 641.Markle argues that it is undisputed that whenhe entered the parking lot, he was an invitee andthat a trier of fact could infer from the facts thathis actions were incidental to his main reason forcoming to the Shopping Center. After all, heargues, friends often see each other in the localshopping center and may talk to each other orconduct some type of business - such as stoppingto write a check to one whom he owes money ortransferring packages from one car to another. Heargues that a jury could find that the ShoppingCenter could have reasonably expected such aroutine, incidental action; therefore, his status didnot change from that of an invitee to that of alicensee. He cites Silvestro v. Walz (1943), 222Ind. 163, 51 N.E.2d 629, to support his argument.In Silvestro, the plaintiff was injured when hewent beyond the repair area of the defendant's carrepair shop in search of a washroom while waitingfor his car to be repaired. The court held thatalthough the plaintiff was not engaged in activitywhich directly benefitted the defendant, his trip tothe washroom was merely incidental to his reasonfor being at the shop. The court reasoned:A customer is invited to all parts ofthe premises that may reasonably beexpected to be used in the transaction ofthe mutual business, those incidental andthose necessary.Nor would it seem unreasonable tohold that the owner of the premisesshould anticipate what is usually andcustomarily done by an invitee within thescope of, and to carry out the purpose of,the invitation.The proprietor of any automobilerepair shop may reasonably expect thathis customers will not sit or stand in oneplace awaiting completion of the repairs.Appellant could not be blind to thiscommon practice. Id. at 171, 51 N.E.2d at632 (citations omitted).Thus, the court focused on the invitationextended by the car repair shop owner to hiscustomers instead of whether the shop ownerreceived a direct benefit from the plaintiff's actionto determine whether the plaintiff was an inviteeor a licensee. The court concluded that a visitor toanother's property does not lose his status as aninvitee as long as the visitor is engaged in activityreasonably related - or incidental to - the invitationextended by the owner.The Shopping Center, however, argues thatthe activity in which Markle was engaged when hewas injured was purely for his own benefit andconvenience and not for the mutual benefit ofMarkle and the Shopping Center. Further, theShopping Center argues that the parking lot washeld open for parking for customers of the tenantsof the Shopping Center, as evidenced by a postedMARKLE V. HACIENDA MEXICAN RESTAURANT

§ A. THE STATUS DISTINCTIONS 313sign which limited parking to customers only.When Markle transferred the piece of steel fromhis car to Lusher's truck, he was not a customer ofany of the Shopping Center tenants. The ShoppingCenter also agues that Markle was using theparking lot for a purpose other than that for whichthe lot was held open to the public. Finally, theShopping Center argues that Markle's activities aresubstantially different from the acts in which theplaintiff in Silvestro engaged. Therefore, Markle'saction could not be considered incidental to hisinvitation.First of all, we note that the Shopping Center'sfirst argument centers on economic benefit, which,under Burrell, is not the proper focus of thediscussion. However, the Shopping Center's otherarguments center on the invitation, or its reasonfor holding the lot open.We agree that even though a visitor may be aninvitee when he comes on to the property, hisstatus may change to that of a licensee while he ison the premises if the use to which he puts theproperty does not correspond to the owner's reasonfor holding the property open. See, e.g., HoosierCardinal Corp. v. Brizius (1964), 136 Ind. App.363, 199 N.E.2d 481 (holding that althoughworkman removing a conveyor belt fromdefendant's property was an invitee, he stepped outof that role when he made an unusual,unanticipated or improbable use of structures onthe defendant's property). 1 See also 62 AM. JUR.1See also Dry v. Ford (1960), 238 Miss. 98, 117So. 2d 456 (holding that the plaintiff, who was helping hisemployer install a dimmer switch in the employer's truckon the defendant's property, was a licensee when he wasinjured, because, even though he had gone to thedefendant's car repair shop with his employer to purchasethe switch, and was therefore an invitee at that time, hisstatus changed once he and his employer decided to installthe switch themselves when they learned that themechanics would not have time to install it until the nextday); Gavin v. O'Conner (1923), 99 N.J.L. 162, 122 A. 842(holding that injured person was not an invitee when hewas killed swinging from a clothesline because, althoughhe was impliedly invited to play in the yard, he was notusing the clothesline in a manner consistent with theowner's purpose for erecting the line and was therefore alicensee at the time of his injury); Bird v. CloverLeaf-Harris Dairy (1942), 102 Utah 330, 125 P.2d 797(holding that although employee was clearly an invitee tothe extent he worked at defendant's dairy, his use of thepremises - parking a car in an area forbidden by thedefendant - was not using the property in the usual,ordinary and customary way; therefore, when the car wasdamaged, the employee was a licensee as a matter of law);2D Premises Liability §§ 105, 107 (1990).Thus, an invitation may be limited as to themanner in which the invitee may use the premises:An invitation to come on premises forone purpose does not invite entry for allpurposes. The status of an inviteecontinues only as long as he is using thepremises for a purpose reasonablyintended by the invitation, and when usedfor another purpose the invitee loses thestatus of invitee. The invitee must use theowner's premises in the usual, ordinary,and customary way. "The inviter is undera duty to keep the premises which arewithin the scope of the invitation safe forall uses by the invitee, and he is notbound to keep them safe for uses whichare outside the scope and purpose of theinvitation, for which the property was notdesigned, and which could not reasonablyhave been anticipated, except where he ispresent and actively co-operates with theinvitee in the particular use of thepremises." 65 C.J.S. Negligence § 63(52)(1966) (emphasis supplied, footnotesomitted).Robbillard v. Tillotson (1954), 118 Vt. 294, 108 A.2d 524(holding that although a husband and his wife wereinvitees while buying something at defendant's servicestation, they could no longer be considered invitees whenthe husband, after concluding his business, waited in thecar in the parking lot of the service station, while sheconducted business at another location).The trial court cited Standard Oil Co. of Indiana v. Scoville(1961), 132 Ind. App. 521, 175 N.E.2d 711, for theproposition that a person's status can change once he is onthe premises of another. Scoville had gone into StandardOil's bulk plant in Bloomington, Indiana, to pay his gasbill. After parking his car in the lot, Scoville ascended aflight of stairs into the building, and went to the office topay the bill. He returned to his car safely, but returned tothe office to discuss a personal matter with an employee.Upon returning to his car the second time, Scoville fell onthe steps and was injured. The trial court granted judgmentin favor of Scoville. This court reversed, holding thatbecause Scoville returned to the office for his ownconvenience and not to transact business, he was clearly alicensee at the time of his injury. Scoville, however, isdistinguishable from the case at bar. First of all, the courtthere focused on the "economic benefit test" which wasexpressly rejected by our supreme court in Burrell.Secondly, there were two distinct entries into the buildingfor two distinct purposes. Here, however, Markle wasinjured on his original trip to the Shopping Center.MARKLE V. HACIENDA MEXICAN RESTAURANT

314 8. PREMISES LIABILITYHere, it is not disputed that, because Markleoriginally went into the Shopping Center to eat atthe Hacienda, he was an invitee when he firstentered the parking lot. However, Markle's status -invitee or licensee - at the time he was allegedlyinjured is disputed. In other words, were Markle'sbusiness activities - taking a piece of steel fromhis car to put in a friend's truck - activities whichthe Shopping Center could reasonably anticipatefrom customers coming to their property andwhich could be considered incidental to itsinvitation to customers to park in its lot and shopin its stores?We do not agree with the Shopping Center'sargument that Markle was acting entirely outsideof the scope of the Shopping Center's invitation.This is not a situation where Markle went into theparking just to give his friend the piece of steel hehad in his car. Rather, the evidence is undisputedthat Markle went into the parking lot to eat at therestaurant - a reason clearly within the scope ofthe invitation. The question that must be askedtherefore, is whether Markle's activity was merelyincidental to this purpose. Under Silvestro, supra,this is a question of what could be reasonablyexpected to be within the scope of the invitation.The question of what is reasonable under thesecircumstances is a question more properly left tothe trier of fact.The Shopping Center also argues thatSilvestro limits the types of activities which maybe considered as incidental to the main purpose ofthe invitation. However, a careful reading ofSilvestro reveals that the case limited activitieswhich could be considered "incidental" to thoseactivities which are "usually and customarily"carried on by visitors to a particular location. Thiswould necessarily depend on the particularlocation. The activities which could be consideredincidental to a visit to a car repair shop wouldnecessarily vary greatly from those activitieswhich could be considered incidental to a visit to ashopping center. One might expect any number ofsocial or business activities to be conductedbetween patrons of a shopping center - plannedand unplanned. For example, a patron, who hasgone to the center to shop, may meet a businessassociate by chance and discuss a business matter.On the other hand, two business associates mayplan to meet at the restaurant to have a businessdinner, and one of them steps into the samechuckhole into which Markle fell. Or, two patronsmay meet by chance and discuss a purely socialmatter. While this may be a common occurrence atshopping centers, the same activity might notcommonly occur at another location. What is"usual" and "customary", therefore, would be aquestion of fact to be determined from all of thesurrounding circumstances.In conclusion, we find that although thematerial facts are not in dispute, we find that atrier of fact could reach the conclusion oppositethat reached by the trial court and could inferMarkle's actions were incidental to his reason forgoing to the Shopping Center. 2Markle also argues that this court shouldabandon the distinction between invitees, licenseesand trespassers. Our supreme court has recentlydeclined the invitation to abandon thesedistinctions. See Burrell, supra. We likewisedecline the invitation.Reversed and remanded.CHEZEM and CONOVER, JJ., concur.Questions and Notes1. In the following two cases, evaluate thefacts and analyze the plaintiff's status at the timeof the injury.2We would reach this same result if, for instance,Markle was discussing business with an associate whileeating dinner at the restaurant and injured himself in thesame parking lot by stepping into the same chuckholewhen going out to his car for some papers to use in thediscussion. One could say that Markle stepped out of hisrole as an invitee - although briefly - by leaving therestaurant to get the papers. However, it is also reasonablethat the owners could anticipate patrons would meet todiscuss business over dinner. Thus, the question of whetherthe patron who has left the restaurant to get some papersfrom his car has stepped out of his role as invitee is oneproperly left to the trier of fact. Likewise, the question ofwhether the Shopping Center could have anticipated thatMarkle - or any other customer - would transact businessin the parking lot is one properly left to the trier of fact.MARKLE V. HACIENDA MEXICAN RESTAURANT

§ A. THE STATUS DISTINCTIONS 315HOSTICK v. HALL386 P.2d 758 (Okl. 1963)PER CURIAMBetty Jo Hall, a 17 months old child at thetime of the injuries involved herein, together withher mother, had gone to the Speed Queen Coin-O-Matic laundry in Bartlesville, which was open tothe public for washing, drying and starchingclothes for a charge. The plaintiff was awardeddamages for injuries received when she wasscalded and severely burned when she turned on ahot water faucet at the sink....Plaintiff's petition alleged in substance that thelaundry in question was open to the public forwashing, starching and drying clothes and that itwas the custom of parents to bring their smallchildren with them when doing their laundry insaid place of business; that small children weredaily in and about said premises with their parentswith the knowledge and consent of the ownerdefendant. That the defendant maintained ascalding hot water faucet on the sink which wasunattended and unguarded and that the faucets asmaintained by the defendant were constructed in anegligent and improper manner and that the easyaccess thereto created an attractive nuisance andthat the defendant was negligent in notmaintaining a reasonably safe condition for a childof plaintiff's age. That plaintiff crawled upon achair which was near the sink, turned on the hotwater faucet causing severe and serious burns andpermanent scars from the hot water emittedtherefrom.* * *GUILFORD v. YALE UNIVERSITY128 Conn. 449, 23 A.2d 917 (1942)JENNINGS, JudgeThe plaintiff, a graduate of SheffieldScientific School of Yale University of the class of1899, while visiting the university during thecommencement period on June 20, 1939, fell onpremises owned by the defendant and was injured.He brought this action claiming that his injurieswere due to the negligence of the defendant. Thecase was tried to the jury and a verdict rendered infavor of the plaintiff. The defendant has appealed,the only ground of error claimed being the refusalof the trial court to set aside the verdict upon thedefendant's motion. Unless otherwise indicated,defendant refers to the named defendant.Viewing the evidence in the light mostfavorable to the plaintiff, the jury mightreasonably have found the following facts: TheYale University authorities, upon the applicationof the chairman of the reunion committee of anyclass, assign to it a building owned by theuniversity as headquarters for members of theclass returning to the reunion. Pursuant to thatcustom, a building formerly occupied by anorganization known as the Wolf's Head Societyhad been assigned to the class of 1936 as reunionheadquarters. It is customary for members ofclasses having reunions to visit the headquarters ofother classes, and it is also the custom for thoseattending reunions to use the grounds about theheadquarters building as a general gathering place,as the university authorities knew.In the basement of the building in questionwas a toilet room and dining room and on theground floor two club rooms. It was of substantialstone construction. The entrance was at the cornerand consisted of two paved walks extending fromthe door of the building to Trumbull and ProspectStreets, respectively. Between these entrancewalks was a circular grass plot. On the TrumbullStreet side the entrance walk was bordered by acurb; next east of the curb was a grass plot twentytwofeet and two inches in length. The width of thegrass plot was eleven feet eight inches measuredfrom the face of the building to a stone wall on theTrumbull Street boundary line. At the east end ofthe grass plot was a retaining wall, the top ofwhich formed a parapet extending from nine andone-half inches to eleven and one-half inchesabove the level of the ground on the west side. Onthe east of the retaining wall there was aperpendicular drop from its top to the groundbelow of ten feet six inches, thus forming a pit.The plaintiff had returned to New Haven forthe fortieth reunion of his class. On the night inquestion, at about 12 o'clock, he, accompanied byone of his classmates, proceeded to these premisesGUILFORD V. YALE UNIVERSITY

316 8. PREMISES LIABILITYand there met a number of younger men of theclass of 1936. After arriving he spent a pleasantperiod with those gathered there, remaining untilabout 2 o'clock, at which time it was suggestedthat the place be closed. Those of the party thenremaining left the building and proceeded to thesidewalk in the street where they talked for five orten minutes. While they were conversing, theplaintiff expressed a desire to urinate and wasinformed that there was a toilet in the basement.At this time, the lights in the building had beenturned out. The plaintiff did not re-enter thebuilding but stepped back upon the premises,crossed the curb between the Trumbull Street walkand the grass plot and proceeded across the grassplot, walking about midway between the side ofthe building and the stone wall enclosing theproperty on the Trumbull Street side. There was atree growing from the lower level beyond theretaining wall at the east of the grass plot. Theshape of the tree was such that its top projectedabove the level of the top of the retaining wall.The plaintiff thought that the top of this tree was abush growing on the grass plot, and walkedtowards it. He tripped over the parapet at the topof the retaining wall and fell to its bottom at thelower level. The region generally was well lightedat the time, but the plaintiff claimed that, while hewas able to see the street and the sidewalk verywell, the ground under his feet was in a darkshadow and that he was walking into the shadowto find a secluded place near the bush to urinate.* * *Questions and Notes1. When the owner transfers possession of theproperty to another, the new possessor usuallyassumes the duties of the owner, such as to warnof hidden dangers, to inspect for defects, etc. Itdepends, however, on the structure of therelationship. In many rental contracts or leases theowner will retain some duties to repair, and to theextent he does, his negligent failure to do so maycreate liability, perhaps in addition to thepossessor's duty to warn visitors or to make repairshimself.2. For a review of the history of a lessor'sobligations to tenants and to other visitors, seeBellikka v. Green, 306 Or. 630, 762 P.2d 997(1988). For a discussion of the landlord's duty tothe tenant, see Neisser, The Tenant as Consumer:Applying Strict Liability Principles to Landlords,64 ST. JOHN'S L. REV. 527 (1990).3. Courts have been troubled by cases wherethe visitor is unexpected, but provides substantialbenefits to the property owner. Public employeesthat enter property in connection with businessbeing conducted there are usually thought of asinvitees. However, the usual definitions of inviteeand licensee are strained as public employeescarry out their public duties. To a landowner, thetax collector or building inspector may representan intrusion. At the same time, such employeesmay be authorized to make such intrusions andcan anticipate being expected by the landowner -possibly raising their status to that of invitees. Butfirefighters and police officers have traditionallybeen held to be licensees, to whom a lesser duty ofcare is owed. This status has usually only beenapplied to situations in which the firefighter orofficer is injured by the thing she was there toinvestigate. A landowner may possibly be heldliable for failure to warn of other hazards. Seegenerally, PROSSER AND KEETON, § 61. In onesense it matters very little whether a firefighter isconsidered a licensee or an invitee, since areasonable person would hardly exert much careto keep the premises safe for unexpected visitors.For that matter, even someone who is expectedand who is clearly a business visitor (like aplumber called to deal with a burst pipe in thebasement) may not require much care. After all, aplumber could hardly complain that the ownerfailed to fix the flooded basement when that is thecondition that the plumber had been hired to dealwith.4. Business and public invitees are owedreasonable care. That includes an obligation toinspect as well as to repair (at least so far as areasonable person would do so). Thisdistinguishes the invitee from the licensee, whomthe owner or occupier need only warn of hiddenperils. At the same time, even invitees cannotcomplain about a dangerous condition of thepremises unless there has been "notice" to theowner. For example, if a customer slips and fallsin a grocery store because someone dropped abottle of distilled water, leaving a puddle on thefloor, the injured party must establish that thepuddle was there long enough that the owner had"notice" and therefore was negligent in failing tocorrect the condition. Some jurisdictions haveGUILFORD V. YALE UNIVERSITY

§ A. THE STATUS DISTINCTIONS 317modified this rule by considering "self-service"operations to be exempt from the notice rule.3. An Exception for Trespassing Children -"Attractive Nuisance"OSTERMAN v. PETERS260 Md. (App.) 313, 272 A.2d 21 (1971)SINGLEY, JudgeThis case is the aftermath of the tragic deathof Lawrence Bruce Osterman, a four and a halfyear old boy, who was drowned when he fell intothe swimming pool at a neighbor's vacant housewhile attempting, with a friend, to retrieve a ball.The boy's father, as administrator of his son'sestate, and in his own right as parent, brought suitfor damages in the Circuit Court for MontgomeryCounty against Mr. and Mrs. Barry J. Peters, theowners of the property upon which the pool waslocated. At the end of the entire case, the Peters'motion for a directed verdict was granted andjudgment was entered in their favor for costs, fromwhich Dr. Osterman has appealed.In Hensley v. Henkels & McCoy, Inc., 258 Md.397, 265 A.2d 897 (1970), decided seven monthsago, in Mondshour v. Moore, 256 Md. 617, 261A.2d 482 (1970) and in Hicks v. Hitaffer, 256 Md.659, 261 A.2d 769 (1970), both decided less than ayear ago and in Herring v. Christensen, 252 Md.240, 249 A.2d 718 (1969), decided less than twoyears ago, we had occasion to reiterate theMaryland rule that the owner of land owes no dutyto a trespasser or licensee, even one of tenderyears, except to abstain from willful or wantonmisconduct or entrapment, since trespassers orbare licensees, including trespassing children, takethe premises as they find them. Judge Smith, whowrote the Court's opinion in Hicks, supra,collected and categorized our prior decisionsextending over a period of 75 years involvinginjuries to trespassing children, 256 Md. at 669-670, 261 A.2d 769.Dr. Osterman, doubtless aware that Marylandis one of only seven states which reject thedoctrine of attractive nuisance withoutqualification, PROSSER, LAW OF TORTS § 59, at373, n.44 (3d ed. 1964), argues that there are fourreasons why this case should be taken from underthe rule of our prior decisions and should havegone to the jury on the issue of negligence.First, he relies on the age of the child, whowas four and a half. However, in both Herring v.Christensen, supra, 252 Md. 240, 249 A.2d 718and Barnes v. Housing Authority of BaltimoreCity, 231 Md. 147, 189 A.2d 100 (1963), wedeclined to make an exception for a three year oldchild, and our predecessors were unwilling toexcept a mentally subnormal boy of 11 years ofage in State, to Use of Alston v. Baltimore FidelityWarehouse Co., 176 Md. 341, 4 A.2d 739 (1939).Next, the appellant argues that the child cameon the Peters' property for the sole purpose ofretrieving a ball, and not to play or swim in thepool. We view this argument as inapposite, since itis reminiscent of the concept of allurement, oncethought to be essential to recovery in attractivenuisance cases, but now largely discredited instates which accept the attractive nuisancedoctrine, McGettigan v. National Bank ofWashington, 115 U.S. App. D.C. 384, 320 F.2d703 (1963); PROSSER, supra, § 59 at 374, andparticularly the cases collected in notes 46, 48 and50. Compare, however, State to Use of Potter v.Longeley, 161 Md. 563, 569, 158 A. 6 (1932)which found demurrable a declaration whichfailed to allege that the hazard was in sight of anyplace where the plaintiff's decedent could bewithout trespassing.There was testimony that the Peters hadvacated their house on 9 May, three days beforethe accident, leaving the pool filled with water forthe convenience of the new occupants, whoplanned to move in on 2 June. This, the appellantargues, was "almost criminal indifference" to therights of the Peters' neighbors. Assuming forpurposes of argument that it was an act ofindifference, this is not the sort of willful orwanton misconduct or entrapment identified in ourprior decisions. In Hensley, supra, 258 Md. 397,412, 265 A.2d 897, 905, we held that a contractingfirm which left unguarded a rope danglingbetween transmission towers, within reach of a 10year old boy who was injured when swinging onthe rope, created "no covert change or entrapment"and "no hidden danger or secret pitfall." It seemsto us that the filled swimming pool may well havebeen less of a hazard than the dangling rope.Finally, the appellant points out thatGUILFORD V. YALE UNIVERSITY

318 8. PREMISES LIABILITYMontgomery County Code (1965) § 105-2requires that private pools be fenced or surroundedwith impenetrable planting, and that gates beequipped with self-closing and self-latchingdevices. The Peters' pool was fenced, but therewas testimony that there were apertures abouttwelve inches high in the fence and that the gatewas kept closed by placing a stone in front of it.The boys had pushed the stone aside to gainaccess to the pool itself. The Peters' violation ofthis statute, the appellant says, is evidence ofnegligence. And so it may be, assuming that therewas a violation, McLhinney v. Lansdell Corp. ofMaryland, 254 Md. 7, 14-15, 254 A.2d 177(1969); Aravanis v. Eisenberg, 237 Md. 242, 259,206 A.2d 148 (1965); Gosnell v. Baltimore & O.R.R. Co., 189 Md. 677, 687, 57 A.2d 322 (1948).The difficulty with the appellant's contention isthat this precise point was made in State to Use ofPotter v. Longeley, supra, 161 Md. 563, 158 A. 6where it was alleged that a 12 year old boy haddrowned in an abandoned quarry which theowners had failed to inclose with a six foot fence,as required by a Baltimore City ordinance. Inrejecting this contention, our predecessors said:The ordinance in this case was passedfor the benefit of the public. Any violationof it subjects the owner of a quarry to afine. But, before an individual can holdsuch owner liable for an injury alleged tohave resulted from such violation, theremust be shown a right on the part of theplaintiff, a duty on the part of thedefendant with respect to that right, and abreach of that duty by the defendantwhereby the plaintiff has suffered injury.Maenner v. Carroll, supra (46 Md. 193(1877)). A trespasser can acquire no suchright except in case of willful injury. Themere violation of a statute would not giveit. The effect of such violation is only toraise a presumption of negligence in favorof one entitled to assert it. See aninteresting discussion on 24 HARVARDLAW REVIEW, p. 333." 161 Md. at 569-570, 158 A. 8.For these reasons, we conclude that Dr.Osterman could no more take his case from underthe Maryland rule than could the plaintiff inHensley v. Henkels & McCoy, Inc., supra, 258Md. 397, 265 A.2d 897, who attempted to do so byalleging that the contractor knew that the areawhere the accident occurred was customarilytraversed by children.What Chief Judge McSherry, speaking for theCourt, said in Demuth v. Old Town Bank ofBaltimore, 85 Md. 315, 37 A. 266 (1897), whichwe referred to in Mondshour v. Moore, supra, 256Md. 623-624, 261 A.2d 482, is equally appropriateto the distressing situation which this casepresents:This is a case of exceedingly greathardship, and we have diligently, but invain, sought for some tenable groundupon which the appellants could berelieved from the loss that an affirmanceof the decree appealed from willnecessarily subject them to. But hardcases, it has often been said, almostalways make bad law; and hence it is, inthe end, far better that the establishedrules of law should be strictly applied,even though in particular instancesserious loss may be thereby inflicted onsome individuals, than that by subtledistinctions, invented and resorted tosolely to escape such consequences, longsettledand firmly-fixed doctrines shouldbe shaken, questioned, confused, ordoubted. Lovejoy v. Irelan, 17 Md. (525)527. It is often difficult to resist theinfluence which a palpable hardship iscalculated to exert; but a rigid adherenceto fundamental principles at all times, anda stern insensibility to the results whichan unvarying enforcement of thoseprinciples may occasionally entail, are thesurest, if not the only, means by whichstability and certainty in theadministration of the law may be secured.It is for the legislature, by appropriateenactments, and not for the courts, bymetaphysical refinements, to provide aremedy against the happening ofhardships which may result from theconsistent application of established legalprinciples." 85 Md. at 319-320, 37 A. at266.Judgment affirmed, costs to be paid byappellant.OSTERMAN V. PETERS

§ A. THE STATUS DISTINCTIONS 319HOFER v. MEYER295 N.W.2d 333 (1980)HERTZ, Circuit JudgeAt a pretrial conference the trial court grantedsummary judgment in favor of defendants(Clifford and Evelyn Meyer and Richard andDorothy Kiefer) as to Counts 2, 3, 5, 6 and 7 ofthe complaint. The trial court ruled that trial wouldproceed on Counts 1 and 4. At the close of thetrial, defendants' motions for directed verdict weregranted, and judgment was entered accordingly.Plaintiffs (Myron and Doreen Hofer forthemselves and on behalf of their son Jason)appeal. We affirm the judgment as to Counts 1 and4 and remand the matter to the trial court for trialon Count 6, which alleged a cause predicated uponRESTATEMENT (SECOND) OF TORTS § 339.On January 16, 1974, Jason Hofer, then threeyears of age, was found injured and semiconsciouson premises owned by the Kiefers.There were no eyewitnesses to the incident. Theevidence shows that Mrs. Hofer was employed asa nurse and that Jason stayed with a babysitterwhile she was at work. On the day of Jason'sinjury, he and his mother had returned home. Theweather was pleasant for that time of the year andMrs. Hofer permitted Jason to remain outsidewhile she changed her clothes. Jason had neverleft the yard before, but when Mrs. Hofer checkeda short time later, he had disappeared. Jason wassubsequently found lying within a barbed wireenclosure on the Kiefer property, which waswithin a few blocks of the Hofer residence. Theenclosure was used by Meyers to contain theirhorse. The horse was a seven-year-old gelding,and it is undisputed that he was an extremelygentle horse and that he was used by the childrenand grandchildren of the Meyers and Kiefers forriding purposes. To the north of the enclosure, onproperty owned by Winston Olson, two otherhorses were kept. The Kiefer and Olson propertieswere separated by two strands of barbed wire. Thetestimony at trial indicates that the Kieferenclosure consisted mostly of a two-strand barbedwire fence and that in one area there was only asingle barbed wire. The Meyers apparentlymaintained the fence because their horse was keptin the enclosure.There was evidence from which the jury couldhave found that Jason had been kicked by Meyers'horse.The Kiefer property is within the city limits ofRapid City, South Dakota. There was testimonyindicating that on three sides of the premiseswhere Jason was found there were a number ofother residences and that there were a number ofchildren living in the area. There was a hill on thefourth side of the property. Mr. Olson testified thatduring the wintertime "some kids" would playthere and slide down the hill. Mr. Meyer testifiedas follows:Q. To your knowledge, werethere ever any strange children other thanyour own that you didn't know or weren'tacquainted with back in that area?A. Not in Dick's area. I saw onelittle boy over in Mr. Olson's pasturechasing the horses one day, and I run himout, but that's about the only one I couldsay.Both Mr. Kiefer and Mr. Meyer testified thatthey had never seen other children on the Kieferproperty, nor had they ever received anycomplaints about children being in the area.Mrs. Ormie Martin, a neighbor to theimmediate west of Kiefers, testified with regard toan event she witnessed on the day of the accident:Well, I saw - I was sitting in the chair,and all I saw was two little red clad legsin front of the garage, and it flashedthrough my mind that Tricia was there,their little granddaughter, and that's all Isaw. I couldn't tell you what the top partwas, I just saw the little legs.There is evidence that Jason's little dogaccompanied him when he left the yard that day,although the dog was not found near Jason afterthe accident. Mr. Meyer testified that he wasaware of the danger created by horses trying todefend themselves from dogs and that on at leastone occasion he had witnessed dogs and the horsesfacing off.At the pretrial conference, the trial judge ruledon the counts in the complaint as follows:Count 1 was construed by the court tobe a general negligence cause of actionand the Hofers were permitted to proceedto trial on that count.Count 2 alleged certain city ordinanceviolations, and the court ruled, as a matterHOFER V. MEYER

320 8. PREMISES LIABILITYof law, that these were health ordinances,not safety ordinances, and that no privateaction for damages could be maintained.Count 3 was held by the trial court tobe a claim based upon a violation of cityordinance and alleging a public nuisance.The court held that no private right ofaction existed on behalf of the Hofers.Count 4 was an allegation that Jasonwas a licensee on the Kiefer property. Thetrial court held that this was essentially anegligence claim and permitted theHofers to proceed to trial on that count.Count 5 alleged an attractivenuisance, and the court ruled, as a matterof law, that the horse in question was notan artificial condition within the attractivenuisance doctrine and that no cause ofaction was stated.Count 6 was determined by the courtto allege a cause of action based uponRESTATEMENT (SECOND) OF TORTS § 339,and it ruled, as a matter of law, that § 339was not applicable.Count 7 was construed by the court toallege a cause of action based upon the"playground" doctrine, but the courtdetermined that the allegation did notstate a cause of action.Counts 1 and 4 proceeded to trial. After allparties had rested, defendants renewed theirmotions for directed verdict made at the close ofplaintiffs' case. The trial court found that there wasno evidence that would raise Jason's status abovethat of trespasser and that, accordingly, the onlyduty owed by defendants was to avoid wanton orwillful conduct that would cause injury. The trialcourt further held that there was no evidence toshow any knowledge on the part of the Kiefersthat anyone was trespassing on their property.With regard to the Meyers, the trial court held thatowners of a domestic animal must have reason tohave knowledge of a dangerous propensity of theanimal or of that class of animals as a whole andthat there was simply no evidence to show suchknowledge on the part of the Meyers or to putthem on notice of any problem with the horse inquestion. The court further stated that mereinference when all other possible causes are equalis not sufficient to present the matter to the jury.The trial court granted defendants' motions fordirected verdict.This case is a classic example of the confusioncreated by the land entrance concepts embodied inthose classifications still persisting in SouthDakota, namely, "invitee," "licensee," and"trespasser." The Hofers urge that theseclassifications have now outlived their usefulnessand that they should be abolished and the casedecided as in other negligence cases. This wouldmean that cases such as this one would bedetermined under the theory of ordinarynegligence or, as sometimes stated, "due careunder the circumstances." Because of ourdetermination that a cause of action exists underthe attractive nuisance doctrine, we decline toconsider rejection of the various classificationsabove noted.At oral argument, counsel forplaintiffs admitted that Jason was a trespasser atthe time of his injury. Even so, we are of theopinion that plaintiffs have stated a cause of actionunder the attractive nuisance doctrine. In SouthDakota that doctrine is the same as that stated inRESTATEMENT (SECOND) OF TORTS § 339:A possessor of land is subject toliability for physical harm to childrentrespassing thereon caused by an artificialcondition upon the land if(a) the place where the conditionexists is one upon which thepossessor knows or has reason toknow that children are likely totrespass, and(b) the condition is one of whichthe possessor knows or has reason toknow and which he realizes or shouldrealize will involve an unreasonablerisk of death or serious bodily harmto such children, and(c) the children because of theiryouth do not discover the conditionor realize the risk involved inintermeddling with it or in comingwithin the area made dangerous by it,and(d) the utility to the possessor ofmaintaining the condition and theburden of eliminating the danger areslight as compared with the risk tochildren involved, and(e) the possessor fails to exercisereasonable care to eliminate thedanger or otherwise to protect thechildren.HOFER V. MEYER

§ B. WHEN DOES PREMISES LIABILITY GOVERN THE CASE 321See: Cargill, Incorporated v. Zimmer, 374F.2d 924 (8th Cir. 1967), and Morris v. City ofBritton, 66 S.D. 121, 279 N.W. 531 (1938).In our opinion, the facts elicited at the trialwere sufficient to present a jury issue underappropriate instructions embodying the elementsset forth in RESTATEMENT (SECOND) OF TORTS §339.The trial court found as a matter of law thatthe horse owned by the Meyers and kept in theyard owned by the Kiefers was not an "artificialcondition" upon the land. We, however, concludethat whether a horse is an "artificial condition"within the meaning of RESTATEMENT (SECOND) OFTORTS § 339, is a matter to be determined by thespecial facts in each case. It is said that when acondition on the land is created by the action ofman, the condition is "artificial" and not "natural"for the purposes of the attractive nuisancedoctrine. Clarke v. Edging, 20 Ariz. App. 267, 512P.2d 30 (1973). In the Cargill case, supra, atwelve-year-old boy climbed the ladder up the sideof a seventy-two-foot silo. His climb resulted in afall, and the court held that the pigeons at the topof the silo constituted a distraction that obscuredthe present danger of excessive height. Consistentwith RESTATEMENT (SECOND) OF TORTS § 339, thecourt held that the pigeons constituted an artificialcondition upon the land.In the instant case, defendants placed a horsein a poorly fenced yard easily accessible tochildren. A child of three, indeed even olderchildren, would not perceive the horse as beingimminently dangerous. Add to the child's presencethat of his little dog, and you have the ingredientsof a foreseeably dangerous condition in thatdefendants had prior knowledge of dogs disturbingthe tranquility of the Olson horses located onproperty adjacent to the Kiefer property. Further,even a gentle horse may kick when startled by thesudden presence of a little boy appearing withoutwarning.RESTATEMENT (SECOND) OF TORTS § 339(a)requires that the possessor "knows or has reason toknow that children are likely to trespass." Here,there is evidence that children occasionally wereseen in the area, albeit, not specifically on theKiefer property. There were residential areas on atleast two sides of the property. Mr. Meyer testifiedthat on at least one occasion he saw a little boychasing the horses in the Olson pasture, which isimmediately adjacent to the Kiefer property. Thefence around the Kiefer yard consisted of only oneor two strands of barbed wire, admittedlyinadequate protection against the curiosity of thechildren in the area. The evidence, as a whole, issufficient, under appropriate instructions, to putthe foreseeability issue to the jury.RESTATEMENT (SECOND) OF TORTS § 339(b)requires that the condition be one that thepossessor knows or has reason to know involvesan unreasonable risk of death or serious bodilyharm to children. Here, the horse was placedwithin the city limits of Rapid City in a poorlyfenced yard near other residences with childrennearby. A horse situated thusly could be found bythe jury to be an unreasonable risk, and thecondition created by the presence of the horseconstituted a submissible issue under the factspresented.RESTATEMENT (SECOND) OF TORTS § 339(c)requires that a determination be made that becauseof his youth, the child was unable to discover thecondition or realize the risk involved inintermeddling with it or in coming within the areamade dangerous by it. Here we have a three-yearoldboy certainly unable to comprehend the dangerinvolved in coming near what was then a gentleand peaceful animal. Jason was obviously at anage where he could not comprehend that hissudden presence or that of his little dog wouldchange the demeanor of an otherwise gentle horse.RESTATEMENT (SECOND) OF TORTS § 339(d)requires the possessor to eliminate the dangerwhere the cost of doing so is slight as comparedwith the risk to children in the area. Here it wasjust a matter of some additional wiring that wouldhave been adequate to keep little children out ofthe horse yard.RESTATEMENT (SECOND) OF TORTS § 339(e)requires plaintiffs to show that defendants failed toexercise reasonable care to eliminate the danger orotherwise protect the children. This issue, underall of the facts, was one that should have beensubmitted to the jury.In Cargill, Incorporated v. Zimmer, it wasstated:South Dakota law does not require alandowner to make his land "child-proof."But at the same time we recognize thatmodern decisions in this area of the lawincreasingly acknowledge thehumanitarian viewpoint that the life of achild is to be balanced as a heavy interestwhen weighed against the utility ofsimple precautions to guard againstHOFER V. MEYER

322 8. PREMISES LIABILITYdanger. In applying the RESTATEMENT, §339, no one of the five factors can begiven isolated treatment in determiningdefendant's negligence. Their relationshipis closely interwoven with one another indetermining the basic question of whetherthere is a foreseeable harm. 374 F.2d at930.The question presented is whether there wassufficient evidence from which the jury couldreasonably find that defendants could haveforeseen that an unreasonable risk of harm totrespassing children existed under the facts and thelaw stated. We hold that a submissible issue didexist and that the trial court erred in grantingdefendants' summary judgment motions as toCount 6 of the complaint. The issue should havebeen resolved by the jury. We find the other errorsclaimed by plaintiffs to be without merit.Accordingly, the judgment as to Counts 1 and4 is affirmed, and the matter is remanded to thetrial court for trial of plaintiffs' cause of actionpredicated on RESTATEMENT (SECOND) OF TORTS§ 339.DUNN, MORGAN and FOSHEIM, JJ.,concur.WUEST, Circuit Judge, concurs specially.Questions and Notes1. In Henry v. State, 406 N.W.2d 608, twoyoung boys were camping with their parents at astate park. During the night, a storm hit, causing atree branch to fall on the boys' tent. One of theboys eventually died from the incident, and theother was seriously injured. The parents broughtsuit against the state and a tree service, both ofwhich took care of the park. The parents allegedthat the park was an artificial condition, and soilcompaction caused by the creation of the parkweakened the tree's health and began internaldecay. The court held:Even if the construction of the parkaffected the health of the tree, this is notan artificial condition. Cases from thisand other jurisdictions indicate thatchanges in natural environments do notcreate an "artificial" condition where theaffected terrain duplicates nature, exceptthat an artificial condition will be found ifthere is some type of trap or concealment.Other jurisdictions that agree with this holdinginclude Florida in Cassel v. Price, 396 So. 2d 258,264 (Fla. Dist. Ct. App.), and New Jersey inOstroski v. Mt. Prospect Shop-Rite, Inc., 94 N.J.Super. 374, 380-81, 228 A.2d 545.2. Most jurisdictions have adopted theRESTATEMENT test regarding attractive nuisance.See, e.g., Ochampaugh v. City of Seattle, 91 Wash.2d 514, 588 P.2d 1351 (1979); Barnhizer v.Paradise Valley Unified School District, 123 Ariz.253, 599 P.2d 209 (1979); Lister v. Campbell, 371So. 2d 133, (Fla. App. 1979); and Gerchberg v.Loney, 223 Kan. 446, 576 P.2d 593 (1978).3. Note that the RESTATEMENT test does notinclude a requirement that the dangerous condition"allure" the child. You will recall that JusticeHolmes made allurement the basis (and thus thelimitation) of the attractive nuisance doctrine.Some states require it. But most do not. See,generally, Gurwin, The RESTATEMENT's AttractiveNuisance Doctrine: An Attractive Alternative forOhio, 46 OHIO ST. L.J. 135 (1985).HOFER V. MEYER

§ B. WHEN DOES PREMISES LIABILITY GOVERN THE CASE 323§ B. When Does PremisesLiability Govern the Case?POTTS v. AMIS62 Wash. 2d 777, 384 P.2d 825 (1963)ROSELLINI, JudgeIn this personal injury action, the plaintiffalleged that the defendant had negligently struckhim in the jaw with a golf club while he was aguest at the defendant's summer home. The trialcourt found that, while engaged in demonstratingthe proper use of the club, the defendant had failedto exercise ordinary care and had struck theplaintiff, but that his action was not wilful orwanton. The court further found that the plaintiffhad exercised ordinary care for his own safety, buthad not exercised extraordinary care.Upon these findings, the court held that thedefendant was not liable for the injuries, inasmuchas he had no duty to exercise ordinary care toavoid inflicting harm upon his guest. Thecorrectness of this holding is challenged onappeal.We have adopted the general rule that a socialguest, although he is invited to the premises, is alicensee, rather than an invitee, as regards hishost's duties toward him. Dotson v. Haddock, 46Wash. 2d 52, 278 P.2d 338; McNamara v. Hall, 38Wash. 2d 864, 233 P.2d 852.Traditionally, owners and occupiers of landhave been accorded a certain immunity from tortliability, especially where injuries result from thecondition or use of the premises. It has been feltthat one in possession of land should not berequired to take affirmative steps to make thepremises safe for trespassers or gratuitouslicensees. In accord with this view, we haveconsistently stated the rule to be that the dutytoward a licensee or trespasser is not to wilfully orwantonly injure him. Hanson v. Freigang, 55Wash. 2d 70, 345 P.2d 1109; Dotson v. Haddock,supra; McNamara v. Hall, supra; Deffland v.Spokane Portland Cement Co., 26 Wash. 2d 891,176 P.2d 311; Christensen v. Weyerhaeuser TimberCo., 16 Wash. 2d 424, 133 P.2d 797; Schock v.Ringling Bros. and Barnum & Bailey CombinedShows, 5 Wash. 2d 599, 105 P.2d 838; Garner v.Pacific Coast Coal Co., 3 Wash. 2d 143, 100 P.2d32; Holm v. Investment & Securities Co., 195Wash. 52, 79 P.2d 708; Buttnick v. J. & M., Inc.,186 Wash. 658, 59 P.2d 750; Kinsman v. Barton &Co., 141 Wash. 311, 251 P. 563; Hiatt v. NorthernPac. R. Co., 138 Wash. 558, 244 P. 994; Bolden v.Independent Order of Odd Fellows, 133 Wash.293, 233 P. 273; Waller v. Smith, 166 Wash. 645,200 P. 95; Smith v. Seattle School Dist., 112 Wash.64, 191 P. 858; Gasch v. Rounds, 93 Wash. 317,160 P. 962; and McConkey v. Oregon R. & Nav.Co., 35 Wash. 55, 76 P. 526.However, in Christensen v. WeyerhaeuserTimber Co., supra, exceptions to this rule werenoted. This court said:[T]he only duty which the owner ofpremises, or the proprietor of a businessconducted thereon, owes to a merelicensee is the duty not to injure suchlicensee wantonly or willfully.... The ruleas thus expressed does not excludeliability on the part of the ownerproprietor for extraordinary concealedperils ... or for unreasonable risks incidentto the possessor's activities.It is the contention of the plaintiff in thisaction that his injuries were the result of an`unreasonable risk incident to the possessor'sactivities,' and that it was the duty of the defendantto exercise ordinary care, knowing that if he didnot wield the golf club with care he might injurethe plaintiff.The defendant argues that this court has neverapplied the exception relating to activities and hasin fact rejected it. It is true that this court has neverexpressly applied the rule, but it has rendereddecisions in which its applicability has been tacitlyrecognized. In Schock v. Ringling Bros. andBarnum & Bailey Combined Shows, supra,children who had come to watch the unloading ofa circus train were injured when they were struckby the tongue of a runaway wagon. This court saidthat the unloading operation was not an attractivenuisance, and that the defendant was liable onlyfor wilful and wanton injury. However, it held as amatter of law that the defendant did all thatreasonable care required, saying:If we look at the matter wholly asidefrom the relevancy of the attractivenuisance doctrine, and consider the casesimply from the standpoint of appellant'sduty under the circumstances to thespectators in general, whether adults orminors, we come to the same conclusion.If we proceed upon the theory thatPOTTS V. AMIS

324 8. PREMISES LIABILITYappellant was bound by the rule ofreasonable care rather than by the `wilfulland wanton negligence' rule, we areconvinced that appellant fully compliedwith its duty when it repeatedly warnedthe multitude to stay away from theplatform. Appellant was not an insurer,and in the exercise of reasonable care itwas not required to suspend its operationsuntil, by inspection and test, it had foundevery piece of machinery and equipmentto be free from all possible defects.In the case of Waller v. Smith, supra, theplaintiff had parked his automobile in an areawhere logging operations were being carried on. Afalling tree damaged the car. While this court said,in exonerating the logging operator, that his onlyduty was not to wilfully or wantonly injure theplaintiff's property, it held as a matter of law thatthere was no negligence. Again, the statementregarding the duty of the logger was not necessaryto the decision.Our research and that of counsel haverevealed only two other cases involving allegedactive negligence on the part of a defendant. InHiatt v. Northern Pac. R. Co., supra, the plaintiff,a trespasser, was killed by a train as he wasproceeding along a railway track. This court heldthat it was for the jury to decide whether the crewof the train were guilty of wilful and wantonnegligence, when they must have seen the plaintiffand other trespassers and a very short timethereafter made a flying switch, sending a caralong after them without any lights or anyone onboard to give warning.This court was asked to apply the dictum ofthe Christensen case, supra, in McNamara v. Hall,38 Wash. 2d 864, 233 P.2d 852. There, the plaintiffwas injured when an overloaded elevator indefendants' home fell. It was found that thecomplaint fell short of alleging that the defendantsknew of the defective condition of the elevator;therefore, the act of the defendants in inviting theplaintiff to ride in it was not wilful or wanton.In speaking of the exceptions to the rule setforth in the dictum of the Christensen case, thiscourt said that the first exception required actualknowledge. In regard to the second exception, itsaid that the overloading of the elevator was onlyan action in entertaining guests, andWhether this second exception is or isnot recognized in this state, we need notnow determine since we do not considerthat the actions of the occupier inentertaining and accommodating hisguests constituted an 'activity' within themeaning of the rule.In all the other cases proclaiming that anowner or occupier is liable only for wilful andwanton conduct, the injuries complained of havebeen caused, not by an activity of the defendant,but by some condition of the premises.* * *In Mills v. Orcas Power & Light Co., cited inthe above quotation, this court imposed upon theowner of an easement the duty of giving warningof the presence of its power lines, because of therisk of harm to passengers in airplanes flying overit. In the opinion written by Judge Foster, it wassaid:The imposition of such duties accordswith the foreseeability criterion ofrequiring a duty of care. If is also inconformity with the well-settled commonlawprinciple that one must exercisereasonable care to maintain his propertyso as not to injure those using the adjacenthighway. [citing cases.]Also in Sherman v. Seattle, 57 Wash. 2d 233,356 P.2d 316, we applied the doctrine offoreseeability in a case where a child was injuredby a lift apparatus at a dam site owned by the city.We held that the apparatus was not an attractivenuisance because it was not enticing to youngchildren. Liability was imposed nevertheless, thecourt saying:In view of the peculiar facts of thiscase, we feel that the standard of careowed respondent by appellant cannot bemade to depend upon respondent'stechnical status on appellant's premises atthe time of the accident. On the contrary,we think that regardless of respondent'sstatus - be it that of an invitee, licensee, ortrespasser - appellant owed him the dutyto use reasonable care.It is this duty which the plaintiff seeks to haveimposed in this case. There is no question but thatthe harm which was inflicted upon him wasforeseeable; and the trial court's findings show thatthe defendant failed to exercise ordinary care toavoid injuring the plaintiff, while the plaintiff didPOTTS V. AMIS

§ B. WHEN DOES PREMISES LIABILITY GOVERN THE CASE 325exercise ordinary care for his own safety. Underthe well-established principles of the law ofnegligence, the plaintiff is entitled to recover. Themere fortuitous circumstances that this injuryoccurred while the plaintiff stood upon landbelonging to the defendant should not relieve thelatter of liability.We need not determine at this time whetherthe rule applicable to injuries resulting from thecondition of the premises should be revised. Butwe hold that, an owner or occupier of land has aduty to exercise reasonable care to avoid injuring aperson who is on the land with his permission andof whose presence he is, or should be, aware. Thisholding is in accord with the second exceptionmentioned in the dictum of the Christensen case.Insofar as McNamara v. Hall, supra, Waller v.Smith, supra, and Schock v. Ringling Bros. andBarnum & Bailey Combined Shows, supra, areinconsistent with this holding, they are herebyoverruled.The judgment is reversed and the causeremanded with directions to determine theplaintiff's damages and enter judgmentaccordingly.* * *Questions and Notes1. In Zuniga v. Pay Less Drug Stores, N.W.,Inc., 82 Wash.App. 12, 917 P.2d 584 (1996), acase arose based on the following facts describedby the court of appeals: "Jose Zuniga is ahomeless person living in Seattle. On the night ofMarch 8, 1993, he went to sleep near a loadingdock off an alley in downtown Seattle. Theloading dock is leased and used by Pay Less DrugStores. At about 5 a.m., Robert Huff, a driver forPay Less, arrived at the dock with a truckload ofmerchandise. As Huff backed the tractor-trailer upto the dock, a wheel on the trailer ran overZuniga's leg. Zuniga sued." Based on Potts v.Amis, can you predict what result the court wouldreach?POTTS V. AMIS

Chapter 9Product Liability§ A. History: The Rise and Fallof PrivityWINTERBOTTOM v. WRIGHT[1842] 10 M.& W. 109, 152 Eng. Rep. 402[Plaintiff was an employee of the post office.He was injured when the wheel of a coach he wasriding fell off, allegedly because of the negligenceof the defendant in repairing coaches for the postoffice. Plaintiff sued.]Lord ABINGER, C.B.I am clearly of opinion that the defendant isentitled to our judgment. We ought not to permit adoubt to rest upon this subject, for our doing somight be the means of letting in upon us aninfinity of actions. This is an action of the firstimpression, and it has been brought in spite of theprecautions which were taken, in the judgment ofthis Court in the case of Levy v. Langridge, toobviate any notion that such an action could bemaintained. We ought not to attempt to extend theprinciple of that decision, which, although it hasbeen cited in support of this action, wholly fails asan authority in its favour; for there the gun wasbought for the use of the son, the plaintiff in thataction, who could not make the bargain himself,but was really and substantially the partycontracting. Here the action is brought simplybecause the defendant was a contractor with athird person; and it is contended that thereupon hebecame liable to every body who might use thecarriage. If there had been any ground for such anaction, there certainly would have been someprecedent of it; but with the exception of actionsagainst innkeepers, and some few other persons,no case of a similar nature has occurred inpractice. That is a strong circumstance, and is ofitself a great authority against its maintenance. Itis however contended, that this contract beingmade on the behalf of the public by the Postmaster-General,no action could be maintainedagainst him, and therefore the plaintiff must have aremedy against the defendant. But that is by nomeans a necessary consequence - he may beremediless altogether. There is no privity ofcontract between these parties; and if the plaintiffcan sue, every passenger, or even any personpassing along the road, who was injured by theupsetting of the coach, might bring a similaraction. Unless we confine the operation of suchcontracts as this to the parties who entered intothem, the most absurd and outrageousconsequences, to which I can see no limit, wouldensue. Where a party becomes responsible to thepublic, by undertaking a public duty, he is liable,though the injury may have arisen from thenegligence of his servant or agent. So, in cases ofpublic nuisances, whether the act was done by theparty as a servant, or in any other capacity, you areliable to an action at the suit of any person whosuffers. Those, however, are cases where the realground of the liability is the public duty, or thecommission of the public nuisance. There is also aclass of cases in which the law permits a contractto be turned into a tort; but unless there has beensome public duty undertaken, or public nuisancecommitted, they are all cases in which an actionmight have been maintained upon the contract.Thus, a carrier may be sued either in assumpsit orcase; but there is no instance in which a party, whowas not privy to the contract entered into withhim, can maintain any such action. The plaintiff inthis case could not have brought an action on thecontract; if he could have done so, what wouldhave been his situation, supposing the Postmaster-General had released the defendant? that would, atall events, have defeated his claim altogether. Bypermitting this action, we should be working thisinjustice, that after the defendant had done everything to the satisfaction of his employer, and afterall matters between them had been adjusted, andWINTERBOTTOM V. WRIGHT

§ A. HISTORY: THE RISE AND FALL OF PRIVITY 327all accounts settled on the footing of their contract,we should subject them to be ripped open by thisaction of tort being brought against him.* * *ROLFE, B.... The [alleged] duty [to the plaintiff],therefore, is shown to have arisen solely from thecontract and the fallacy consists in the use of thatword `duty.' If a duty to the Postmaster-General bemeant, that is true but if a duty to the plaintiff beintended (and in that sense the word is evidentlyused), there was none. This is one of thoseunfortunate cases in which there certainly hasbeen damnum, but is it damnum absque injuria; itis, no doubt, a hardship upon the plaintiff to bewithout a remedy, but, by that consideration weought not to be influenced. Hard cases, it has beenfrequently observed, are apt to introduce bad law.Questions and Notes1. Should the court have been more or lessinclined to permit a recovery if the victim in thiscase had been a pedestrian - a "person passingalong the road"?2. The story of how the rule in Winterbottomwas incorporated into American law is told inGregory, Trespass to Negligence to AbsoluteLiability, 37 Va. L. Rev. 359 (1951), and O'Brian,The History of Product Liability, 62 Tul. L. Rev.313 (1988).MACPHERSON v. BUICK MOTOR CO.217 N.Y. 382, 111 N.E. 1050 (1916)CARDOZO, J.The defendant is a manufacturer ofautomobiles. It sold an automobile to a retaildealer. The retail dealer resold to the plaintiff.While the plaintiff was in the car it suddenlycollapsed. He was thrown out and injured. One ofthe wheels was made of defective wood, and itsspokes crumbled into fragments. The wheel wasnot made by the defendant; it was bought fromanother manufacturer. There is evidence, however,that its defects could have been discovered byreasonable inspection, and that inspection wasomitted. There is no claim that the defendant knewof the defect and willfully concealed it. The case,in other words, is not brought within the rule ofKuelling v. Lean Mfg. Co., 183 N.Y. 78, 75 N.E.1098, 2 L.R.A.(N.S.) 303, 111 Am. St. Rep. 691, 5Ann. Cas. 124. The charge is one, not of fraud, butof negligence. The question to be determined iswhether the defendant owed a duty of care andvigilance to any one but the immediate purchaser.The foundations of this branch of the law, atleast in this state, were laid in Thomas v.Winchester, 6 N.Y. 397, 57 Am. Dec. 455. Apoison was falsely labeled. The sale was made to adruggist, who in turn sold to a customer. Thecustomer recovered damages from the seller whoaffixed the label. "The defendant's negligence," itwas said, "put human life in imminent danger." Apoison, falsely labeled, is likely to injure any onewho gets it. Because the danger is to be foreseen,there is a duty to avoid the injury. Cases werecited by way of illustration in whichmanufacturers were not subject to any dutyirrespective of contract. The distinction was saidto be that their conduct, though negligent, was notlikely to result in injury to any one except thepurchaser. We are not required to say whether thechance of injury was always as remote as thedistinction assumes. Some of the illustrationsmight be rejected today. The principle of thedistinction is, for present purposes, the importantthing. Thomas v. Winchester became quickly alandmark of the law. In the application of itsprinciple there may, at times, have beenuncertainty or even error. There has never in thisstate been doubt or disavowal of the principleitself.* * *These early cases suggest a narrowconstruction of the rule. Later cases, however,evince a more liberal spirit. First in importance isDevlin v. Smith, 89 N.Y. 470, 42 Am. Rep. 311.The defendant, a contractor, built a scaffold for apainter. The painter's servants were injured. Thecontractor was held liable. He knew that thescaffold, if improperly constructed, was a mostdangerous trap. He knew that it was to be used bythe workmen. He was building it for that verypurpose. Building it for their use, he owed them aduty, irrespective of his contract with their master,to build it with care.WINTERBOTTOM V. WRIGHT

328 9. PRODUCT LIABILITYFrom Devlin v. Smith we pass overintermediate cases and turn to the latest case inthis court in which Thomas v. Winchester wasfollowed. That case is Statler v. Ray Mfg. Co., 195N.Y. 478, 480, 88 N.E. 1063. The defendantmanufactured a large coffee urn. It was installed ina restaurant. When heated, the urn exploded andinjured the plaintiff. We held that the manufacturerwas liable. We said that the urn "was of such acharacter inherently that, when applied to thepurposes for which it was designed, it was liableto become a source of great danger to manypeople 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 theextension. The defendant argues that thingsimminently dangerous to life are poisons,explosives, deadly weapons - things whose normalfunction it is to injure or destroy. But whatever therule in Thomas v. Winchester may once have been,it has no longer that restricted meaning. A scaffold(Devlin v. Smith, supra) is not inherently adestructive instrument. It becomes destructiveonly if imperfectly constructed. A large coffee urn(Statler v. Ray Mfg. Co., supra) may have withinitself, if negligently made, the potency of danger,yet no one thinks of it as an implement whosenormal function is destruction....* * *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 theirnormal operation are implements of destruction. Ifthe nature of a thing is such that it is reasonablycertain to place life and limb in peril whennegligently made, it is then a thing of danger. Itsnature gives warning of the consequences to beexpected. If to the element of danger there isadded knowledge that the thing will be used bypersons other than the purchaser, and used withoutnew tests, then, irrespective of contract, themanufacturer of this thing of danger is under aduty to make it carefully. That is as far as we arerequired to go for the decision of this case. Theremust be knowledge of a danger, not merelypossible, but probable. It is possible to use almostanything in a way that will make it dangerous ifdefective. That is not enough to charge themanufacturer with a duty independent of hiscontract. Whether a given thing is dangerous maybe sometimes a question for the court andsometimes a question for the jury. There must alsobe knowledge that in the usual course of eventsthe danger will be shared by others than the buyer.Such knowledge may often be inferred from thenature of the transaction. But it is possible thateven knowledge of the danger and of the use willnot always be enough. The proximity orremoteness of the relation is a factor to beconsidered. We are dealing now with the liabilityof the manufacturer of the finished product, whoputs it on the market to be used without inspectionby his customers. If he is negligent, where dangeris to be foreseen, a liability will follow.... We have put aside the notion that the dutyto safeguard life and limb, when the consequencesof negligence may be foreseen, grows out ofcontract and nothing else. We have put the sourceof the obligation where it ought to be. We have putits source in the law.From this survey of the decisions, there thusemerges a definition of the duty of a manufacturerwhich enables us to measure this defendant'sliability. Beyond all question, the nature of anautomobile gives warning of probable danger if itsconstruction is defective. This automobile wasdesigned to go 50 miles an hour. Unless its wheelswere sound and strong, injury was almost certain.It was as much a thing of danger as a defectiveengine for a railroad. The defendant knew thedanger. It knew also that the car would be used bypersons other than the buyer. This was apparentfrom its size; there were seats for three persons. Itwas apparent also from the fact that the buyer wasa dealer in cars, who bought to resell. The makerof this car supplied it for the use of purchasersfrom the dealer just as plainly as the contractor inDevlin v. Smith supplied the scaffold for use by theservants of the owner. The dealer was indeed theone person of whom it might be said with someapproach to certainty that by him the car wouldnot be used. Yet the defendant would have us saythat he was the one person whom it was under alegal duty to protect. The law does not lead us toso inconsequent a conclusion. Precedents drawnfrom the days of travel by stagecoach do not fit theconditions of travel today. The principle that thedanger must be imminent does not change, but thethings subject to the principle do change. They arewhatever the needs of life in a developingcivilization require them to be.MACPHERSON V. BUICK MOTOR CO.

§ A. HISTORY: THE RISE AND FALL OF PRIVITY 329HENNINGSEN v. BLOOMFIELDMOTORS, INC.32 N.J. 358, 161 A.2d 69 (1960)FRANCIS, J.Plaintiff Claus H. Henningsen purchased aPlymouth automobile, manufactured by defendantChrysler Corporation, from defendant BloomfieldMotors, Inc. His wife, plaintiff Helen Henningsen,was injured while driving it and instituted suitagainst both defendants to recover damages onaccount of her injuries. Her husband joined in theaction seeking compensation for his consequentiallosses. The complaint was predicated upon breachof express and implied warranties and uponnegligence. At the trial the negligence counts weredismissed by the court and the cause wassubmitted to the jury for determination solely onthe issues of implied warranty of merchantability.Verdicts were returned against both defendantsand in favor of the plaintiffs. Defendants appealedand plaintiffs cross-appealed from the dismissal oftheir negligence claim. The matter was certified bythis court prior to consideration in the AppellateDivision.The facts are not complicated, but a generaloutline of them is necessary to an understanding ofthe case.On May 7, 1955 Mr. and Mrs. Henningsenvisited the place of business of BloomfieldMotors, Inc., an authorized De Soto and Plymouthdealer, to look at a Plymouth. They wanted to buya car and were considering a Ford or a Chevroletas well as a Plymouth. They were shown aPlymouth which appealed to them and thepurchase followed. The record indicates that Mr.Henningsen intended the car as a Mother's Daygift to his wife. He said the intention wascommunicated to the dealer. When the purchaseorder or contract was prepared and presented, thehusband executed it alone. His wife did not join asa party.The purchase order was a printed form of onepage. On the front it contained blanks to be filledin with a description of the automobile to be sold,the various accessories to be included, and thedetails of the financing. The particular car selectedwas described as a 1955 Plymouth, Plaza "6",Club Sedan. The type used in the printed parts ofthe form became smaller in size, different in style,and less readable toward the bottom where the linefor the purchaser's signature was placed. Thesmallest type on the page appears in the twoparagraphs, one of two and one-quarter lines andthe second of one and one-half lines, on whichgreat stress is laid by the defense in the case.These two paragraphs are the least legible and themost difficult to read in the instrument, but theyare most important in the evaluation of the rightsof the contesting parties. They do not attractattention and there is nothing about the formatwhich would draw the reader's eye to them. Infact, a studied and concentrated effort would haveto be made to read them. De-emphasis seems themotive rather than emphasis. More particularly,most of the printing in the body of the orderappears to be 12 point block type, and easy toread. In the short paragraphs under discussion,however, the type appears to be six point scriptand the print is solid, that is, the lines are veryclose together.The two paragraphs are:The front and back of this Ordercomprise the entire agreement affectingthis purchase and no other agreement orunderstanding of any nature concerningsame has been made or entered into, orwill be recognized. I hereby certify thatno credit has been extended to me for thepurchase of this motor vehicle except asappears in writing on the face of thisagreement.I have read the matter printed on theback hereof and agree to it as a part ofthis order the same as if it were printedabove my signature. I certify that I am 21years of age, or older, and herebyacknowledge receipt of a copy of thisorder.On the right side of the form, immediatelybelow these clauses and immediately above thesignature line, and in 12 point block type, thefollowing appears:CASH OR CERTIFIED CHECK ONLY ONDELIVERY.On the left side, just opposite and in the samestyle type as the two quoted clauses, but in eightpoint size, this statement is set out:This agreement shall not becomeHENNINGSEN V. BLOOMFIELD MOTORS, INC.

330 9. PRODUCT LIABILITYbinding upon the Dealer until approvedby an officer of the company.The two latter statements are in the interest ofthe dealer and obviously an effort is made to drawattention to them.The testimony of Claus Henningsen justifiesthe conclusion that he did not read the two fineprint paragraphs referring to the back of thepurchase contract. And it is uncontradicted that noone made any reference to them, or called them tohis attention. With respect to the matter appearingon the back, it is likewise uncontradicted that hedid not read it and that no one called it to hisattention.The reverse side of the contract contains 8 1 /2inches of fine print. It is not as small, however, asthe two critical paragraphs described above. Thepage is headed "Conditions" and contains tenseparate paragraphs consisting of 65 lines in all.The paragraphs do not have headnotes or marginnotes denoting their particular subject, as in thecase of the "Owner Service Certificate" to bereferred to later. In the seventh paragraph, abouttwo-thirds of the way down the page, the warranty,which is the focal point of the case, is set forth. Itis as follows:7. It is expressly agreed that there areno warranties, express or implied, Madeby either the dealer or the manufactureron the motor vehicle, chassis, of partsfurnished hereunder except as follows.The manufacturer warrants each newmotor vehicle (including originalequipment placed thereon by themanufacturer except tires), chassis orparts manufactured by it to be free fromdefects in material or workmanship undernormal use and service. Its obligationunder this warranty being limited tomaking good at its factory any part orparts thereof which shall, within ninety(90) days after delivery of such vehicle tothe original purchaser or before suchvehicle has been driven 4,000 miles,whichever event shall first occur, bereturned to it with transportation chargesprepaid and which its examination shalldisclose to its satisfaction to have beenthus defective; this warranty beingexpressly in lieu of all other warrantiesexpressed or implied, and all otherobligations or liabilities on its part, and itneither assumes nor authorizes any otherperson to assume for it any other liabilityin connection with the sale of itsvehicles.... (Emphasis ours.)After the contract had been executed,plaintiffs were told the car had to be serviced andthat it would be ready in two days. According tothe dealer's president, a number of cars were onhand at the time; they had come in from thefactory about three or four weeks earlier and atleast some of them, including the one selected bythe Henningsens, were kept in the back of the shopdisplay purposes. When sold, plaintiffs' vehiclewas not "a serviced car, ready to go." Thetestimony shows that Chrysler Corporation sendsfrom the factory to the dealer a "New CarPreparation Service Guide" with each newautomobile. The guide contains detailedinstructions as to what has to be done to preparethe car for delivery. The dealer is told to "Use thisform as a guide to inspect and prepare this newPlymouth for delivery." It specifies 66 separateitems to be checked, tested, tightened or adjustedin the course of the servicing, but dismantling thevehicle or checking all of its internal parts is notprescribed. The guide also calls for delivery of theOwner Service Certificate with the car.This certificate, which at least by inference isauthorized by Chrysler, was in the car whenreleased to Claus Henningsen on May 9, 1955. Itwas not made part of the purchase contract, norwas it shown to him prior to the consummation ofthat agreement. The only reference to it therein isthat the dealer "agrees to promptly perform andfulfill and terms and conditions of the ownerservice policy." The Certificate contains awarranty entitled "Automobile ManufacturersAssociation Uniform Warranty." The provisionsthereof are the same as those set forth on thereverse side of the purchase order, except that anadditional paragraph is added by which the dealerextends that warranty to the purchaser in the samemanner as if the word "Dealer" appeared insteadof the word "Manufacturer."The new Plymouth was turned over to theHenningsens on May 9, 1955. No proof wasadduced by the dealer to show precisely what wasdone in the way of mechanical or road testingbeyond testimony that the manufacturer'sinstructions were probably followed. Mr.Henningsen drove it from the dealer's place ofbusiness in Bloomfield to their home inKeansburg. On the trip nothing unusual appearedHENNINGSEN V. BLOOMFIELD MOTORS, INC.

§ A. HISTORY: THE RISE AND FALL OF PRIVITY 331in the way in which it operated. Thereafter, it wasused for short trips on paved streets about thetown. It had no servicing and no mishaps of anykind before the event of May 19. That day, Mrs.Henningsen drove to Asbury Park. On the waydown and in returning the car performed in normalfashion until the accident occurred. She wasproceeding north on Route 36 in Highlands, NewJersey, at 20-22 miles per hour. The highway waspaved and smooth, and contained two lanes fornorthbound travel. She was riding in the righthandlane. Suddenly she heard a loud noise "fromthe bottom, by the hood." It "felt as if somethingcracked." The steering wheel spun in her hands;the car veered sharply to the right and crashed intoa highway sign and a brick wall. No other vehiclewas in any way involved. A bus operator drivingin the left-hand lane testified that he observedplaintiffs' car approaching in normal fashion in theopposite direction; "all of a sudden [it] veered at90 degrees ... and right into this wall." As a resultof the impact, the front of the car was so badlydamaged that it was impossible to determine if anyof the parts of the steering wheel mechanism orworkmanship or assembly were defective orimproper prior to the accident. The condition wassuch that the collision insurance carrier, afterinspection, declared the vehicle a total loss. It had468 miles on the speedometer at the time.The insurance carrier's inspector and appraiserof damaged cars, with 11 years of experience,advanced the opinion, based on the history and hisexamination, that something definitely went"wrong from the steering wheel down to the frontwheels" and that the untoward happening musthave been due to mechanical defect or failure;"something down there had to drop off or breakloose to cause the car" to act in the mannerdescribed.As has been indicated, the trial court felt thatthe proof was not sufficient to make out primafacie case as to the negligence of either themanufacturer or the dealer. The case was given tothe jury, therefore, solely on the warranty theory,with results favorable to the plaintiffs against bothdefendants.IThe Claim of Implied Warranty against theManufacturer* * *The terms of the warranty are a sadcommentary upon the automobile manufacturers'marketing practices. Warranties developed in thelaw in the interest of and to protect the ordinaryconsumer who cannot be expected to have theknowledge or capacity or even the opportunity tomake adequate inspection of mechanicalinstrumentalities, like automobiles, and to decidefor himself whether they are reasonably fit for thedesigned purpose.... But the ingenuity of theAutomobile Manufacturers Association, by meansof its standardized form, has metamorphosed thewarranty into a device to limit the maker'sliability.... The language gave little and withdrewmuch. In return for the delusive remedy ofreplacement of defective parts at the factory, thebuyer is said to have accepted the exclusion of themaker's liability for personal injuries arising fromthe breach of the warranty, and to have agreed tothe elimination of any other express or impliedwarranty. An instinctively felt sense of justicecries out against such a sharp bargain....The form and the arrangement of its face, asdescribed above, certainly would cause the mindsof reasonable men to differ as to whether notice ofa yielding of basic rights stemming from therelationship with the manufacturer was adequatelygiven. The words "warranty" or "limited warranty"did not even appear in the fine print above theplace for signature, and a jury might well find thatthe type of print itself was such as to promote lackof attention rather than sharp scrutiny. Theinference from the facts is that Chrysler placed themethod of communicating its warranty to thepurchaser in the hands of the dealer. If either oneor both of them wished to make certain thatHenningsen became aware of that agreement andits purported implications, neither the form of thedocument nor the method of expressing theprecise nature of the obligation intended to beassumed would have presented any difficulty.But there is more than this. Assuming that ajury might find that the fine print referred toreasonably served the objective of directing abuyer's attention to the warranty on the reverseside, and, therefore, that he should be charged withawareness of its language, can it be said that anordinary layman would realize what he wasrelinquishing in return for what he was beinggranted? Under the law, breach of warrantyagainst defective parts or workmanship whichcaused personal injuries would entitle a buyer todamages even if due care were used in themanufacturing process. Because of the greatHENNINGSEN V. BLOOMFIELD MOTORS, INC.

332 9. PRODUCT LIABILITYpotential for harm if the vehicle was defective,that right is the most important and fundamentalone arising from the relationship. Difficulties sofrequently encountered in establishing negligencein manufacture in the ordinary case make thismanifest. 2 HARPER & JAMES, supra, §§ 28.14,28.15; PROSSER, supra, 506. Any ordinary laymanof reasonable intelligence, looking at thephraseology, might well conclude that Chryslerwas agreeing to replace defective parts andperhaps replace anything that went wrong becauseof defective workmanship during the first 90 daysor 4,000 miles of operation, but that he would notbe entitled to a new car. It is not unreasonable tobelieve that the entire scheme being conveyed wasa proposed remedy for physical deficiencies in thecar. In the context of this warranty, only theabandonment of all sense of justice would permitus to hold that, as a matter of law, the phrase "itsobligation under this warranty being limited tomaking good at its factory any part or partsthereof" signifies to an ordinary reasonable personthat he is relinquishing any personal injury claimthat might flow from the use of a defectiveautomobile. Such claims are nowhere mentioned.The draftsmanship is reflective of the care andskill of the Automobile Manufacturers Associationin undertaking to avoid warranty obligationswithout drawing too much attention to its effort inthat regard. No one can doubt that if the will to doso were present, the ability to inform the buyingpublic of the intention to disclaim liability forinjury claims arising from breach of warrantywould present no problem.In this connection, attention is drawn to thePlymouth Owner Certificate mentioned earlier.Obviously, Chrysler is aware of it because theNew Car Preparation Service Guide sent from thefactory to the dealer directs that it be given to thepurchaser. That certificate contains a paragraphcalled "Explanation of Warranty." Its entire tenorrelates to replacement of defective parts. There isnothing about it to stimulate the idea that theintention of the warranty is to exclude personalinjury claims.* * *The task of the judiciary is to administer thespirit as well as the letter of the law. On issuessuch as the present one, part of that burden is toprotect the ordinary man against the loss ofimportant rights through what, in effect, is theunilateral act of the manufacturer. The status of theautomobile industry is unique. Manufacturers arefew in number and strong in bargaining position.In the matter of warranties on the sale of theirproducts, the Automotive ManufacturersAssociation has enabled them to present a unitedfront. From the standpoint of the purchaser, therecan be no arms length negotiating on the subject.Because his capacity for bargaining is so grosslyunequal, the inexorable conclusion which followsis that he is not permitted to bargain at all. Hemust take or leave the automobile on the warrantyterms dictated by the maker. He cannot turn to acompetitor for better security. Public policy is aterm not easily defined. Its significance varies asthe habits and needs of a people may vary. It is notstatic and the field of application is an everincreasing one. A contract, or a particularprovision therein, valid in one era may be whollyopposed to the public policy of another. SeeCollopy v. Newark Eye & Ear Infirmary, 27 N.J.29, 39, 141 A.2d 276 (1958). Courts keep in mindthe principle that the best interests of societydemand that persons should not be unnecessarilyrestricted in their freedom to contract. But they donot hesitate to declare void as against publicpolicy contractual provisions which clearly tend tothe injury of the public in some way. Hodnick v.Fidelity Trust Co., 96 Ind. App. 342, 183 N.E. 488(App. Ct. 1932).Public policy at a given time finds expressionin the Constitution, the statutory law and injudicial decisions. In the area of sale of goods, thelegislative will has imposed an implied warrantyof merchantability as a general incident of sale ofan automobile by description. The warranty doesnot depend upon the affirmative intention of theparties. It is a child of the law; it annexes itself tothe contract because of the very nature of thetransaction. Minneapolis Steel & Machinery Co. v.Casey Land Agency, 51 N.D. 832, 201 N.W. 172(Sup. Ct. 1924). The judicial process hasrecognized a right to recover damages for personalinjuries arising from a breach of that warranty. Thedisclaimer of the implied warranty and exclusionof all obligations except those specificallyassumed by the express warranty signify a studiedeffort to frustrate that protection. True, the SalesAct authorizes agreements between buyer andseller qualifying the warranty obligations. Butquite obviously the Legislature contemplatedlawful stipulations (which are determined by thecircumstances of a particular case) arrived atfreely by parties of relatively equal bargainingHENNINGSEN V. BLOOMFIELD MOTORS, INC.

§ A. HISTORY: THE RISE AND FALL OF PRIVITY 333strength. The lawmakers did not authorize theautomobile manufacturer to use its grosslydisproportionate bargaining power to relieve itselffrom liability and to impose on the ordinary buyer,who in effect has no real freedom of choice, thegrave danger of injury to himself and others thatattends the sale of such a dangerousinstrumentality as a defectively made automobile.In the framework of this case, illuminated as it isby the facts and the many decisions noted, we areof the opinion that Chrysler's attempted disclaimerof an implied warranty of merchantability and ofthe obligations arising therefrom is so inimical tothe public good as to compel an adjudication of itsinvalidity. See 57 YALE L.J., supra, at pp. 1400-1404; proposed Uniform Commercial Code, 1958Official Text, § 202.* * *IV.Proof of Breach of the Implied Warranty ofMerchantability.* * *Both defendants contend that since there wasno privity of contract between them and Mrs.Henningsen, she cannot recover for breach of anywarranty made by either of them. On the facts, asthey were developed, we agree that she was not aparty to the purchase agreement. Faber v.Creswick, 31 N.J. 234, 156 A.2d 252 (1959). Herright to maintain the action, therefore, dependsupon whether she occupies such legal statusthereunder as to permit her to take advantage of abreach of defendants' implied warranties.For the most part the cases that have beenconsidered dealt with the right of the buyer orconsumer to maintain an action against themanufacturer where the contract of sale was with adealer and the buyer had no contractualrelationship with the manufacturer. In the presentmatter, the basic contractual relationship isbetween Claus Henningsen, Chrysler, andBloomfield Motors, Inc. The precise issuepresented is whether Mrs. Henningsen, who is nota party to their respective warranties, may claimunder them. In our judgment, the principles ofthose cases and the supporting texts are just asproximately applicable to her situation. We areconvinced that the cause of justice in this area ofthe law can be served only by recognizing that sheis such a person who, in the reasonablecontemplation of the parties to the warranty, mightbe expected to become a user of the automobile.Accordingly, her lack of privity does not stand inthe way of prosecution of the injury suit againstthe defendant Chrysler.Questions and Notes1. This case illustrates the difficulty ofconceptualizing products liability cases as bothcontract and tort cases. Should the Henningsens berequired to state a cause of action in contract? Ifthey want to base their claim on tort law, can themanufacturer force the case to be treated as acontract case?2. Warranty law (and contract law, of which itwas usually a component) was advantageous insome respects for the plaintiff, butdisadvantageous in others. Before examining thecases that follow, which adopt a tort analysiscompletely, see if you can list the advantages anddisadvantages of warranty law from theconsumer's perspective.HENNINGSEN V. BLOOMFIELD MOTORS, INC.

334 9. PRODUCT LIABILITY§ B. The Adoption of StrictLiability in TortESCOLA v. COCA COLA BOTTLINGCOMPANY OF FRESNO24 Cal. 2d 453, 150 P.2d 436 (1944)GIBSON, Chief JusticePlaintiff, a waitress in a restaurant, wasinjured when a bottle of Coca Cola broke in herhand. She alleged that defendant company, whichhad bottled and delivered the alleged defectivebottle to her employer, was negligent in selling"bottles containing said beverage which onaccount of excessive pressure of gas or by reasonof some defect in the bottle was dangerous ... andlikely to explode." This appeal is from a judgmentupon a jury verdict in favor of plaintiff.Defendant's driver delivered several cases ofCoca Cola to the restaurant, placing them on thefloor, one on top of the other, under and behind thecounter, where they remained at least thirty-sixhours. Immediately before the accident, plaintiffpicked up the top case and set it upon a nearby icecream cabinet in front of and about three feet fromthe refrigerator. She then proceeded to take thebottles from the case with her right hand, one at atime, and put them into the refrigerator. Plaintifftestified that after she had placed three bottles inthe refrigerator and had moved the fourth bottleabout 18 inches from the case "it exploded in myhand." The bottle broke into two jagged pieces andinflicted a deep five-inch cut, severing bloodvessels, nerves and muscles of the thumb andpalm of the hand....* * *Many authorities state that the happening ofthe accident does not speak for itself where it tookplace some time after defendant had relinquishedcontrol of the instrumentality causing the injury.Under the more logical view, however, thedoctrine may be applied upon the theory thatdefendant had control at the time of the allegednegligent act, although not at the time of theaccident, provided plaintiff first proves that thecondition of the instrumentality had not beenchanged after it left the defendant's possession.* * *It is true that defendant presented evidencetending to show that it exercised considerableprecaution by carefully regulating and checkingthe pressure in the bottles and by making visualinspections for defects in the glass at severalstages during the bottling process. It is wellsettled, however, that when a defendant producesevidence to rebut the inference of negligencewhich arises upon application of the doctrine ofres ipsa loquitur, it is ordinarily a question of factfor the jury to determine whether the inference hasbeen dispelled. Druzanich v. Criley, 19 Cal. 2d439, 444, 122 P.2d 53; Michener v. Hutton, 203Cal. 604, 610, 265 P. 238, 59 A.L.R. 480.The judgment is affirmed.SHENK, CURTIS, CARTER, andSCHAUER, JJ., concurred.TRAYNOR, JusticeI concur in the judgment, but I believe themanufacturer's negligence should no longer besingled out as the basis of a plaintiff's right torecover in cases like the present one. In myopinion it should now be recognized that amanufacturer incurs an absolute liability when anarticle that he has placed on the market, knowingthat it is to be used without inspection, proves tohave a defect that causes injury to human beings.MacPherson v. Buick Motor Co., 217 N.Y. 382,111 N.E. 1050, L.R.A. 1916F, 696, Ann. Cas.1916C, 440 established the principle, recognizedby this court, that irrespective of privity ofcontract, the manufacturer is responsible for aninjury caused by such an article to any person whocomes in lawful contact with it. Sheward v. Virtue,20 Cal. 2d 410, 126 P.2d 345; Kalash v. LosAngeles Ladder Co., 1 Cal. 2d 229, 34 P.2d 481. Inthese cases the source of the manufacturer'sliability was his negligence in the manufacturingprocess or in the inspection of component partssupplied by others. Even if there is no negligence,however, public policy demands thatresponsibility be fixed wherever it will mosteffectively reduce the hazards to life and healthinherent in defective products that reach themarket. It is evident that the manufacturer cananticipate some hazards and guard against therecurrence of others, as the public cannot. Thosewho suffer injury from defective products areunprepared to meet its consequences. The cost ofan injury and the loss of time or health may be anoverwhelming misfortune to the person injured,ESCOLA V. COCA COLA BOTTLING COMPANY OF FRESNO

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 335and a needless one, for the risk of injury can beinsured by the manufacturer and distributedamong the public as a cost of doing business. It isto the public interest to discourage the marketingof products having defects that are a menace to thepublic. If such products nevertheless find theirway into the market it is to the public interest toplace the responsibility for whatever injury theymay cause upon the manufacturer, who, even if heis not negligent in the manufacture of the product,is responsible for its reaching the market.However intermittently such injuries may occurand however haphazardly they may strike, the riskof their occurrence is a constant risk and a generalone. Against such a risk there should be generaland constant protection and the manufacturer isbest situated to afford such protection.The injury from a defective product does notbecome a matter of indifference because the defectarises from causes other than the negligence of themanufacturer, such as negligence of asubmanufacturer of a component part whosedefects could not be revealed by inspection (seeSheward v. Virtue, 20 Cal. 2d 410, 126 P.2d 345;O'Rourke v. Day & Night Water Heater Co., Ltd.,31 Cal. App. 2d 364, 88 P.2d 191; Smith v.Peerless Glass Co., 259 N.Y. 292, 181 N.E. 576),or unknown causes that even by the device of resipsa loquitur cannot be classified as negligence ofthe manufacturer. The inference of negligence maybe dispelled by an affirmative showing of propercare. If the evidence against the fact inferred is"clear, positive, uncontradicted, and of such anature that it can not rationally be disbelieved, thecourt must instruct the jury that the nonexistenceof the fact has been established as a matter oflaw." Blank v. Coffin, 20 Cal. 2d 457, 461, 126P.2d 868, 870. An injured person, however, is notordinarily in a position to refute such evidence oridentify the cause of the defect, for he can hardlybe familiar with the manufacturing process as themanufacturer himself is. In leaving it to the jury todecide whether the inference has been dispelled,regardless of the evidence against it, thenegligence rule approaches the rule of strictliability. It is needlessly circuitous to makenegligence the basis of recovery and impose whatis in reality liability without negligence. If publicpolicy demands that a manufacturer of goods beresponsible for their quality regardless ofnegligence there is no reason not to fix thatresponsibility openly.* * *Questions and Notes1. What was the basis upon which themajority affirmed liability?2. What was Justice Traynor's approach toliability?3. Which is the better approach?GREENMAN v. YUBA POWERPRODUCTS27 Cal. Rptr. 697, 377 P.2d 897 (1963)TRAYNOR, JusticePlaintiff brought this action for damagesagainst the retailer and the manufacturer of aShopsmith, a combination power tool that couldbe used as a saw, drill, and wood lathe. He saw aShopsmith demonstrated by the retailer andstudied a brochure prepared by the manufacturer.He decided he wanted a Shopsmith for his homeworkshop, and his wife bought and gave him onefor Christmas in 1955. In 1957 he bought thenecessary attachments to use the Shopsmith as alathe for turning a large piece of wood he wishedto make into a chalice. After he had worked on thepiece of wood several times without difficulty, itsuddenly flew out of the machine and struck himon the forehead, inflicting serious injuries. Aboutten and a half months later, he gave the retailerand the manufacturer written notice of claimedbreaches of warranties and filed a complaintagainst them alleging such breaches andnegligence.After a trial before a jury, the court ruled thatthere was no evidence that the retailer wasnegligent or had breached any express warrantyand that the manufacturer was not liable for thebreach of any implied warranty. Accordingly, itsubmitted to the jury only the cause of actionalleging breach of implied warranties against theretailer and the causes of action allegingESCOLA V. COCA COLA BOTTLING COMPANY OF FRESNO

336 9. PRODUCT LIABILITYnegligence and breach of express warrantiesagainst the manufacturer. The jury returned averdict for the retailer against plaintiff and forplaintiff against the manufacturer in the amount of$65,000. The trial court denied the manufacturer'smotion for a new trial and entered judgment on theverdict. The manufacturer and plaintiff appeal.Plaintiff seeks a reversal of the part of thejudgment in favor of the retailer, however, only inthe event that the part of the judgment against themanufacturer is reversed.Plaintiff introduced substantial evidence thathis injuries were caused by defective design andconstruction of the Shopsmith. His expertwitnesses testified that inadequate set screws wereused to hold parts of the machine together so thatnormal vibration caused the tailstock of the latheto move away from the piece of wood beingturned permitting it to fly out of the lathe. Theyalso testified that there were other more positiveways of fastening the parts of the machinetogether, the use of which would have preventedthe accident. The jury could therefore reasonablyhave concluded that the manufacturer negligentlyconstructed the Shopsmith. The jury could alsoreasonably have concluded that statements in themanufacturer's brochure were untrue, that theyconstituted express warranties, 54 and thatplaintiff's injuries were caused by their breach.* * *Moreover, to impose strict liability on themanufacturer under the circumstances of this case,it was not necessary for plaintiff to establish anexpress warranty as defined in section 1732 of theCivil Code. 55 A manufacturer is strictly liable in54In this respect the trial court limited the jury to aconsideration of two statements in the manufacturer'sbrochure.(1) WHEN SHOPSMITH IS IN HORIZONTAL POSITIONRugged construction of frame provides rigid supportfrom end to end. Heavy centerless-ground steel tubinginsurers perfect alignment of components.(2) SHOPSMITH maintains its accuracy because everycomponent has positive locks that hold adjustmentsthrough rough or precision work.55"Any affirmation of fact or any promise by the sellerrelating to the goods is an express warranty if the naturaltendency of such affirmation or promise is to induce thebuyer to purchase the goods, and if the buyer purchases thegoods relying thereon. No affirmation of the value of thegoods, nor any statement purporting to be a statement oftort when an article he places on the market,knowing that it is to be used without inspection fordefects, proves to have a defect that causes injuryto a human being. Recognized first in the case ofunwholesome food products, such liability hasnow been extended to a variety of other productsthat create as great or greater hazards if defective.Although in these cases strict liability hasusually been based on the theory of an express orimplied warranty running from the manufacturerto the plaintiff, the abandonment of therequirement of a contract between them, therecognition that the liability is not assumed byagreement but imposed by law (see e.g., Grahamv. Bottenfield's, Inc., 176 Kan. 68, 269 P.2d 413,418; Rogers v. Toni Home Permanent Co., 167Ohio St. 244, 147 N.E.2d 612, 614, 75 A.L.R.2d103; Decker & Sons, Inc. v. Capps, 139 Tex. 609,617, 164 S.W.2d 828, 142 A.L.R. 1479), and therefusal to permit the manufacturer to define thescope of its own responsibility for defectiveproducts (Henningsen v. Bloomfield Motors, Inc.,32 N.J. 358, 161 A.2d 69, 84-96; General MotorsCorp. v. Dodson, 47 Tenn. App. 438, 338 S.W.2d655, 658-661; State Farm Mut. Auto. Ins. Co. v.Anderson-Weber, Inc., 252 Iowa 1289, 110 N.W.2d449, 455-456; Pabon v. Hackensack Auto Sales,Inc., 63 N.J. Super. 476, 164 A.2d 773, 778; Linnv. Radio Center Delicatessen, 169 Misc. 879, 9N.Y.S.2d 110, 112) make clear that the liability isnot one governed by the law of contract warrantiesbut by the law of strict liability in tort.Accordingly, rules defining and governingwarranties that were developed to meet the needsof commercial transactions cannot properly beinvoked to govern the manufacturer's liability tothose injured by their defective products unlessthose rules also serve the purposes for which suchliability is imposed.We need not recanvass the reasons forimposing strict liability on the manufacturer. Theyhave been fully articulated in the cases citedabove. (See also 2 HARPER AND JAMES, TORTS, §§28.15-28, 16, pp. 1569-1574; Prosser, StrictLiability to the Consumer, 69 YALE L.J. 1099;Escola v. Coca Cola Bottling Co., 24 Cal. 2d 453,461, 150 P.2d 436, concurring opinion.) Thepurpose of such liability is to insure that the costsof injuries resulting from defective products areborne by the manufacturers that put such productsthe seller's opinion only shall be construed as a warranty."GREENMAN V. YUBA POWER PRODUCTS

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 337on the market rather than by the injured personswho are powerless to protect themselves. Saleswarranties serve this purpose fitfully at best. (SeeProsser, Strict Liability to the Consumer, 69 YALEL.J. 1099, 1124-1134.) In the present case, forexample, plaintiff was able to plead and prove anexpress warranty only because he read and reliedon the representations of the Shopsmith'sruggedness contained in the manufacturer'sbrochure. Implicit in the machine's presence on themarket, however, was a representation that itwould safely do the jobs for which it was built.Under these circumstances, it should not becontrolling whether plaintiff selected the machinebecause of the statements in the brochure, orbecause of the machine's own appearance ofexcellence that belied the defect lurking beneaththe surface, or because he merely assumed that itwould safely do the jobs it was built to do. Itshould not control whether the details of the salesfrom manufacturer to retailer and from retailer toplaintiff's wife were such that one or more of theimplied warranties of the sales act arose. (Civ.Code § 1735.) "The remedies of injuredconsumers ought not to be made to depend uponthe intricacies of the law of sales." (Ketterer v.Armour & Co., D.C., 200 F. 322, 323; Klein v.Duchess Sandwich which Co., 14 Cal. 2d 272,282, 93 P.2d 799.) To establish the manufacturer'sliability it was sufficient that plaintiff proved thathe was injured while using the Shopsmith in a wayit was intended to be used as a result of a defect indesign and manufacture of which plaintiff was notaware that made the Shopsmith unsafe for itsintended use.The manufacturer contends that the trial courterred in refusing to give three instructionsrequested by it. It appears from the record,however, that the substance of two of therequested instructions was adequately covered bythe instructions given and that the third instructionwas not supported by the evidence.The judgment is affirmed.GIBSON, C.J., and SCHAUER, McCOMB,PETERS, TOBRINER and PEEK, JJ., concur.Questions and Notes1. The RESTATEMENT (2D), TORTS, provides:§ 402 A. Special Liability of Seller ofProduct for Physical Harm to User orConsumer(1) One who sells any product in adefective condition unreasonablydangerous to the user or consumer or tohis property is subject to liability forphysical harm thereby caused to theultimate user or consumer, or to hisproperty, if(a) the seller is engaged in thebusiness of selling such a product,and(b) it is expected to and doesreach the user or consumer withoutsubstantial change in the condition inwhich it is sold.(2) The rule stated in Subsection (1)applies although(a) the seller has exercised allpossible care in the preparation andsale of his product, and(b) the user or consumer has notbought the product from or enteredinto any contractual relation with theseller.PHILLIPS v. KIMWOOD MACHINECO.269 Or. 485, 525 P.2d 1033 (1974)HOLMAN, JusticePlaintiff was injured while feeding fiberboardinto a sanding machine during his employmentwith Pope and Talbot, a wood productsmanufacturer. The sanding machine had beenpurchased by Pope and Talbot from defendant.Plaintiff brought this action on a products liabilitytheory, contending the sanding machine wasunreasonably dangerous by virtue of defectivedesign. At the completion of the testimony,defendant's motion for a directed verdict wasgranted and plaintiff appealed.As is required in such a situation, the evidenceis recounted in a manner most favorable to theplaintiff. The machine in question was aGREENMAN V. YUBA POWER PRODUCTS

338 9. PRODUCT LIABILITYsix-headed sander. Each sanding head was arapidly moving belt which revolved in thedirection opposite to that which the pieces offiberboard moved through the machine. Three ofthe heads sanded the top of the fiberboard sheetand three sanded the bottom. The top half of themachine could be raised or lowered dependingupon the thickness of the fiberboard to be sanded.The bottom half of the machine had poweredrollers which moved the fiberboard through themachine as the fiberboard was being sanded. Thetop half of the machine had pinch rolls, notpowered, which, when pressed down on thefiberboard by use of springs, kept the sandingheads from forcefully rejecting it from themachine.On the day of the accident plaintiff wasengaged in feeding the sheets of fiberboard intothe sander. Because of the defective operation of apress, a large group of sheets of extra thicknesswas received for sanding. These sheets could notbe inserted into the machine as it was set, so thetop half of the sander was adjusted upwards toleave a greater space between the top and bottomhalves to accommodate the extra thick fiberboardsheets. During the sanding of the extra thicksheets, a thin sheet of fiberboard, which hadbecome mixed with the lot, was inserted into themachine. The pressure exerted by the pinch rollsin the top half of the machine was insufficient tocounteract the pressure which the sanding beltswere exerting upon the thin sheet of fiberboardand, as a result, the machine regurgitated the pieceof fiberboard back at plaintiff, hitting him in theabdomen and causing him the injuries for whichhe now seeks compensation.Plaintiff asserts in his complaint that themachine was defective in its design andunreasonably dangerous because (1) "it ... couldnot be operated in the manner and for the purposefor which it was manufactured and sold withoutthrowing back towards the operator panels ofmaterial being sanded...." and (2) "it did not ...contain ... any guards, catches, shields, barricadesor similar devices to protect the operator of saidmachine from being struck by panels of materialthrown back out of the sanding machine...." Thetwo allegations assert substantially the same thing,the first one in general terms, and the second onein particular terms. In effect, they allege themachine was defective and was unreasonablydangerous because there were no safety devices toprotect the person feeding the machine from theregurgitation of sheets of fiberboard.While we do not here attempt to recount all ofthe testimony presented by plaintiff concerning thedefective design of the machine, there wasevidence from which the jury could find that at arelatively small expense there could have beenbuilt into, or subsequently installed on, themachine a line of metal teeth which would point inthe direction that the fiberboard progressesthrough the machine and which would presslightly against the sheet but which, in case ofattempted regurgitation, would be jammed into it,thus stopping its backward motion. The evidencealso showed that after the accident such teeth wereinstalled upon the machine for that purpose byPope and Talbot, whereupon subsequentregurgitations of thin fiberboard sheets wereprevented while the efficiency of the machine wasmaintained. There was also evidence thatdefendant makes smaller sanders which usuallyare manually fed and on which there is such asafety It was shown that the machine in questionwas built for use with an automatic feeder and thatthe one installed at Pope and Talbot is the onlysix-headed sander manufactured by defendantwhich is manually fed. There also was testimonythat at the time of the purchase by Pope andTalbot, defendant had automatic feeders for salebut that Pope and Talbot did not purchase or showany interest in such a feeder. Pope and Talbotfurnished a feeding device of their ownmanufacture for the machine which was partiallyautomatic and partially manual but which, the jurycould find, at times placed an employee in the wayof regurgitated sheets.There was testimony that at the timedefendant's employee inspected the installation ofthe machine purchased by Pope and Talbot, whichinspection was required by their contract, theinspecting employee became aware that themachine was being manually fed. There was notestimony of any warning given by defendant ofthe danger concerning regurgitated sheets to aperson manually feeding the machine. Neither wasthere any evidence that Pope and Talbot was toldthat the machine was built for use with a fullyautomatic feeder and that it was not to be fedmanually, nor was the recommendation made toplaintiff's employer that if the machine was to beused without a fully automatic feeder, some sort ofsafety device should be used for the protection ofanyone who was manually feeding the machine.There was evidence that one of Pope and Talbot'sPHILLIPS V. KIMWOOD MACHINE CO.

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 339representatives was told that the top of themachine should not be raised sanding was takingplace, but there was no evidence of the dangerfrom doing so ever being mentioned.Defendant contends there is no properassignment of error because, instead of beingdesignated as an assignment of error, the claimthat the trial court should not have granted adirected verdict is designated as an issue onappeal. Because plaintiff's contention upon appealis clearly evident, we choose in this case tooverlook the formal defects in his opening briefwhich have somewhat been alleviated by his replybrief.In defense of its judgment based upon adirected verdict, defendant contends there was noproof of a defect in the product, and thereforestrict liability should not apply. This court andother courts continue to flounder while attemptingto determine how one decides whether a product is"in a defective condition unreasonably dangerousto the user." 1 It has been recognized thatunreasonably dangerous defects in products comefrom two principal sources: (1) mismanufactureand (2) faulty design. 2 Mismanufacture isrelatively simple to identify because the item inquestion is capable of being compared withsimilar articles made by the same manufacturer.However, whether the mismanufactured article isdangerously defective because of the flaw issometimes difficult to ascertain because not everysuch flaw which causes injury makes the articledangerously defective. 312 RESTATEMENT (SECOND) OF TORTS § 402A, at 347(1965).2Wade, On the Nature of Strict Tort Liability forProducts, 44 MISS. L. J. 825, 830 (1973) (including failureto warn as a design defect).3The California Supreme Court recognized thisproblem and attempted to eliminate it by requiring only adefect that causes injury, and not an unreasonablydangerous defect. In Cronin v. J.B.E. Olson Corp., 8 Cal.3d 121, 104 Cal. Rptr. 433, 501 P.2d 1153 (1972), thecourt felt that requiring proof of an unreasonablydangerous defect would put an additional burden onplaintiff which the court deemed improper. We, however,feel that regardless of whether the term used is "defective,"as in Cronin, or "defective condition unreasonablydangerous," as in THE RESTATEMENT, or "dangerouslydefective," as used here, or "not duly safe," as used byProfessor Wade, the same considerations will necessarilybe utilized in fixing liability on sellers; and, therefore, theThe problem with strict liability of productshas been one of limitation. 4 No one wants absoluteliability where all the article has to do is to causeinjury. To impose liability there has to besomething about the article which makes itdangerously defective without regard to whetherthe manufacturer was or was not at fault for suchcondition. A test for unreasonable danger istherefore vital. A dangerously defective articlewould be one which a reasonable person wouldnot put into the stream of commerce if he hadknowledge of its harmful character. 5 The test,therefore, is whether the seller would be negligentif he sold the article knowing of the risk involved. 6Strict liability imposed what amounts toconstructive knowledge of the condition of theproduct.supposedly different standards will come ultimately to thesame conclusion. See Wade, Strict Tort Liability ofManufacturers, 19 SW. L. J. 5, 14-15 (1965); Wade, supranote 2.4Cf. Markle v. Mulholland's, Inc., 265 Or. 259, 266,509 P.2d 529 (1973). Holford, The Limits of Strict Liabilityfor Product Design and Manufacture, 52 TEX. L. REV. 81(1973).5See Borel v. Fibreboard Paper Products Corp., 493F.2d 1076, 1088 (5th Cir. 1973); Welch v. OutboardMarine Corp., 481 F.2d 252, 254 (5th Cir. 1973); HeleneCurtis Industries, Inc. v. Pruitt, 385 F.2d 841, 850 (5th Cir.1967), cert. denied, 391 U.S. 913, 88 S. Ct. 1806, 20 L.Ed. 2d 652 (1968); Olsen v. Royal Metals Corporation,392 F.2d 116, 119 (5th Cir. 1968); Dorsey v. Yoder, 331 F.Supp. 753, 759-760 (E.D. Pa. 1971). aff'd, 474 F.2d 1339(3 Cir. 1973). See generally, P. Keeton, Manufacturer'sLiability: The Meaning of "Defect" in the Manufacture andDesign of Products, 20 SYRACUSE L. REV. 559, 568(1969); P. Keeton, Products Liability - Inadequacy ofInformation, 48 TEX. L. REV. 398, 403-404 (1970); Wade,Strict Tort Liability of Manufacturers, 19 SW. L. J. 5, 15-16(1965).6Cf. Welch v. Outboard Marine Corp., 481 F.2d 252,254 (5th Cir. 1973). See generally, Wade, supra note 2, at834-835; P. Keeton, Products Liability - SomeObservations About Allocation of Risks, 64 MICH. L. REV.1329, 1335 (1966). The Wade and Keeton formulations ofthe standard appear to be identical except that Keetonwould impute the knowledge of dangers at time of trial tothe manufacturer, while Wade would impute only theknowledge existing at the time the product was sold.Compare P. Keeton, Product Liability and the Meaning ofDefect, 5 ST. MARY'S L.J. 30, 38 (1973), with Wade, supranote 3, at 15, and Wade, supra note 2, at 834.PHILLIPS V. KIMWOOD MACHINE CO.

340 9. PRODUCT LIABILITYOn the surface such a test would seem tobe different than the test of 2 RESTATEMENT(SECOND) OF TORTS § 402A, Comment I., of"dangerous to an extent beyond that which wouldbe contemplated by the ordinary consumer whopurchases it." This court has used this test in thepast. 7 These are not necessarily differentstandards, however. As stated in Welch v.Outboard Marine Corp., 8 where the court affirmedan instruction containing both standards:We see no necessary inconsistencybetween a seller-oriented standard and auser-oriented standard when, as here, eachturns on foreseeable risks. They are twosides of the same standard. A product isdefective and unreasonably dangerouswhen a reasonable seller would not sellthe product if he knew of the riskinvolved or if the risks are greater than areasonable buyer would expect.To elucidate this point further, we feel that thetwo standards are the same because a seller actingreasonably would be selling the same productwhich a reasonable consumer believes he ispurchasing. That is to say, a manufacturer whowould be negligent in marketing a given product,considering its risks, would necessarily bemarketing a product which fell below thereasonable expectations of consumers whopurchase it. The foreseeable uses to which aproduct could be put would be the same in theminds of both the seller and the buyer unless oneof the parties was not acting reasonably. Theadvantage of describing a dangerous defect in themanner of Wade and Keeton is that it preserves theuse of familiar terms and thought processes withwhich courts, lawyers, and jurors customarilydeal.While apparently judging the seller's conduct,the test set out above would actually be acharacterization of the product by a jury. If themanufacturer was not acting reasonably in sellingthe product, knowing of the risks involved, thenthe product would be dangerously defective whensold and the manufacturer would be subject toliability.In the case of a product which is claimed to bedangerously defective because of misdesign, theprocess is not so easy as in the case ofmismanufacture. All the products made to thatdesign are the same. The question of whether thedesign is unreasonably dangerous can bedetermined only by taking into consideration thesurrounding circumstances and knowledge at thetime the article was sold, and determiningtherefrom whether a reasonably prudentmanufacturer would have so designed and sold thearticle in question had he known of the riskinvolved which injured plaintiff. The issue hasbeen raised in some courts concerning whether, inthis context, there is any distinction between strictliability and negligence. 9 The evidence whichproves the one will almost always, if not always,prove the other. 10 We discussed this matterrecently in the case of Roach v. Kononen, 99 Or.Adv. Sh. 1092, 525 P.2d 125 (1974), and pointedout that there is a difference between strict liabilityfor misdesign and negligence. We said:However, be all this as it may, it isgenerally recognized that the basicdifference between negligence on the onehand and strict liability for a design defecton the other is that in strict liability we aretalking about the condition(dangerousness) of an article which isdesigned in a particular way, while innegligence we are talking about thereasonableness of the manufacturer'sactions in designing and selling the articleas he did. The article can have a degree ofdangerousness which the law of strictliability will not tolerate even though theactions of the designer were entirelyreasonable in view of what he knew at thetime he planned and sold themanufactured article. As Professor Wadepoints out, a way of determining whetherthe condition of the article is of therequisite degree of dangerousness to bedefective (unreasonably dangerous;greater degree of danger than a consumer7See Markle v. Mulholland's, Inc., 265 Or. 259, 266,509 P.2d 529 (1973); Cornelius v. Bay Motors, Inc., 258Or. 564, 572, 484 P.2d 299, 54 A.L.R.3D 340 (1971).9See Jones v. Hutchinson Mfg., Inc., 502 S.W.2d 66,69-70 (Ky. 1973).8481 F.2d 252, 254 (5th Cir. 1973).10Wade, supra note 2, at 836-837.PHILLIPS V. KIMWOOD MACHINE CO.

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 341has a right to expect; not duly safe) is toassume that the manufacturer knew of theproduct's propensity to injury as it did,and then to ask whether, with suchknowledge, something should have beendone about the danger before it was sold.In other words, a greater burden is placedon the manufacturer than is the case innegligence because the law assumes hehas knowledge of the article's dangerouspropensity which he may not reasonablybe expected to have, had he been chargedwith negligence. 99 Or. Adv. Sh. at 1099,525 P.2d at 129.To some it may seem that absolute liabilityhas been imposed upon the manufacturer since itmight be argued that no manufacturer couldreasonably put into the stream of commerce anarticle which he realized might result in injury to auser. This is not the case, however. The manner ofinjury may be so fortuitous and the chances ofinjury occurring so remote that it is reasonable tosell the product despite the danger. In design casesthe utility of the article may be so great, and thechange of design necessary to alleviate the dangerin question may so impair such utility, that it isreasonable to market the product as it is, eventhough the possibility of injury exists and wasrealized at the time of the sale. Again, the cost ofthe change necessary to alleviate the danger indesign may be so great that the article would bepriced out of the market and no one would buy iteven though it was of high utility. Such an articleis not dangerously defective despite its havinginflicted injury.In this case defendant contends it was Popeand Talbot's choice to purchase and use the sanderwithout an automatic feeder, even though it wasmanufactured to be used with one, and, therefore,it was Pope and Talbot's business choice whichresulted in plaintiff's injury and not any misdesignby defendant. However, it is recognized that afailure to warn may make a product unreasonablydangerous. 11 Comment j, Section 402A, 2RESTATEMENT (SECOND) OF TORTS, has thefollowing to say:11See Borel v. Fibreboard Paper Products Corp., 493F.2d 1076, 1088-1090, (5th Cir. 1973). See generally, P.Keeton, Products Liability - Inadequacy of Information, 48TEX. L. REV. 398, 403-404 (1970); P. Keeton, ProductLiability and the Meaning of Defect, 5 ST. MARY'S L.J. 30,33-34 (1973).In order to prevent the product frombeing unreasonably dangerous, the sellermay be required to give directions orwarning, on the container, as to its use.The seller may reasonably assume thatthose with common allergies, as forexample to eggs or strawberries, will beaware of them, and he is not required towarn against them. Where, however, theproduct contains an ingredient to which asubstantial number of the population areallergic, and the ingredient is one whosedanger is not generally known, or ifknown is one which the consumer wouldreasonably not expect to find in theproduct, the seller is required to givewarning against it, if he had knowledge,or by the application of reasonable,developed human skill and foresightshould have knowledge, of the presenceof the ingredient and the danger. Likewisein the case of poisonous drugs, or thoseunduly dangerous for other reasons,warning as to use may be required.Although the examples cited in the commentdo not encompass machinery or such products, ithas been recognized that a piece of machinerymay or may not be dangerously defective,depending on the directions or warnings that maybe given with it. 12It is our opinion that the evidence wassufficient for the jury to find that a reasonablyprudent manufacturer, knowing that the machinewould be fed manually and having theconstructive knowledge of its propensity to12HURSH & BAILEY, 1 AMERICAN LAW OF PRODUCTSLIABILITY 2D, § 4.13 and cases cited therein (1974); SeeBerkebile v. Brantly Helicopter Corp., 225 Pa. Super. 349,311 A.2d 140, 143 (1973). In fact, in the leading case inthe area of strict liability, Greenman v. Yuba PowerProducts, 59 Cal. 2d 57, 27 Cal. Rptr. 697, 377 P.2d 897,13 A.L.R.3D 1049 (1963), the California Supreme Courtstated: "To establish the manufacturer's liability it wassufficient that plaintiff proved that he was injured whileusing the Shopsmith in a way it was intended to be used asa result of a defect in design and manufacture of Whichplaintiff was not aware that made the Shopsmith unsafe forits intended use." (Emphasis added.) 27 Cal. Rptr. at 701,377 P.2d at 901. Thus it appears that the piece ofmachinery might not have been "defective" had thepurchaser been made aware of its propensities throughproper warnings.PHILLIPS V. KIMWOOD MACHINE CO.

342 9. PRODUCT LIABILITYregurgitate thin sheets when it was set for thickones, which the courts via strict liability haveimposed upon it, would have warned plaintiff'semployer either to feed it automatically or to usesome safety device, and that, in the absence ofsuch a warning, the machine was dangerouslydefective. It is therefore unnecessary for us todecide the questions that would arise had adequatewarnings been given.In Anderson v. Klix Chemical, 256 Or. 199,472 P.2d 806 (1970), we came to the conclusionthat there was no difference between negligenceand strict liability for a product that wasunreasonably dangerous because of failure to warnof certain characteristics. We have now come tothe conclusion that we were in error. The reasonwe believe we were in error parallels the rationalethat was expressed in the previously quotedmaterial from Roach v. Kononen, supra, where wediscussed the difference between strict liability formisdesign and negligence. In a strict liability casewe are talking about the condition (dangerousness)of an article which is sold without any warning,while in negligence we are talking about thereasonableness of the manufacturer's actions inselling the article without a warning. The articlecan have a degree of dangerousness because of alack of warning which the law of strict liabilitywill not tolerate even though the actions of theseller were entirely reasonable in selling the articlewithout a warning considering what he knew orshould have known at the time he sold it. A way todetermine the dangerousness of the article, asdistinguished from the seller's culpability, is toassume the seller knew of the product's propensityto injure as it did, and then to ask whether, withsuch knowledge, he would have been negligent inselling it without a warning.It is apparent that the language being used inthe discussion of the above problems is largelythat which is also used in negligence cases, i.e.,"unreasonably dangerous," "have reasonablyanticipated," "reasonably prudent manufacturer,"etc. It is necessary to remember that whether thedoctrine of negligence, ultrahazardousness, orstrict liability is being used to impose liability, thesame process is going on in each instance, i.e.,weighing the utility of the article against the riskof its use. Therefore, the same language andconcepts of reasonableness are used by courts forthe determination of unreasonable danger inproducts liability cases. For example, see thecriteria set out in Roach v. Kononen, supra. 13 Thedifference between the three theories of recoveryis in the manner in which the decisional functionsare distributed between the court and the jury. Thefollowing language, we believe, is appropriate:13In an action for negligence it isnormally the function of the jury todetermine whether the defendant wasnegligent, subject, of course, to theauthority of the judge to direct a verdictfor the defendant, if he finds that the jurycould not reasonably find for the plaintiff.On the other hand, in an action based onstrict liability of the Rylands [Rylands v.Fletcher] type, for an abnormallydangerous activity, the determination as towhether strict liability will be imposed forthe activity is held to be one for the judge,not the jury - for the reason that thedecision involves issues of general socialpolicy. In the products cases the courtsseem not to have approached the problemin this fashion. Instead, they seem to haveassumed that strict products liability islike negligence in this respect, so that aplaintiff, in order to recover, mustconvince the jury that the product was`defective' or `unreasonably dangerous' or`not duly safe,' or whatever test is used.This generally works quite satisfactorilywhen the question is whether the productwas unsafe because of an error in themanufacturing process so that it was notin the condition in which it was intendedto be. The issue then seems more factual,(1) The usefulness and desirability of the product - itsutility to the user and to the public as a whole. (2) Thesafety aspects of the product - the likelihood that it willcause injury, and the probable seriousness of the injury. (3)The availability of a substitute product which would meetthe same need and not be as unsafe. (4) The manufacturer'sability to eliminate the unsafe character of the productwithout impairing its usefulness or making it too expensiveto maintain its utility. (5) The user's ability to avoid dangerby the exercise of care in the use of the product. (6) Theuser's anticipated awareness of the dangers inherent in theproduct and their avoidability, because of general publicknowledge of the obvious condition of the product, or ofthe existence of suitable warnings or instructions. (7) Thefeasibility, on the part of the manufacturer, of spreadingthe loss by setting the price of the product or carryingliability insurance.PHILLIPS V. KIMWOOD MACHINE CO.

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 343of the kind the jury is accustomed tohandling. The difficulty comes when it isnot just the single article which is to beclassed as unsafe because something wentwrong in the making of it, but a wholegroup or class or type which may beunsafe because of the nature of thedesign. It is here that the policy issuesbecome very important and the factorswhich were enumerated above must becollected and carefully weighed [as setout in Roach v. Kononen, supra]. It is herethat the court - whether trial or appellate -does consider these issues in decidingwhether to submit the case to the jury. If aplaintiff sues the manufacturer of abutcher knife because he cut his finger, onthe sole ground that the knife was sosharp that it was likely to cut human flesh,the court would probably take the case outof the hands of the jury and not give it theopportunity to find that the knife wasunsafe. Similarly with an aspirinmanufacturer, when an ordinary tabletstuck to the lining of the plaintiff'sstomach and caused a hemorrhage, or themanufacturer of the Pasteur treatment forrabies, when there were untowardreactions. The problem in these cases islikely to be called one of law and decidedby the court. Court control of jury actionis more extensive here than in theordinary negligence action. And yet, ofcourse, if the court decides that it wouldbe reasonable to allow the jury to find forthe plaintiff, the issue of lack of duesafety will be submitted to the jury evenin these cases." (Footnotes omitted.) 14It is important to point out, as indicated in theabove quotation, that while the decision is madeby the court whether an activity is abnormallydangerous and strict liability of the Rylands v.Fletcher 15 type is to be applied, the determinationof whether a product is dangerously defective andstrict liability is to be applied has been treated as1415Wade, supra note 2, at 838-839.Fletcher v. Rylands, 3 H & C 774, 159 Eng. Rep. 737(Ex. 1865), Reversed in Fletcher v. Rylands, LR 1 Ex. 265(1866), Affirmed in Rylands v. Fletcher, LR 3 HL 330(1868).one primarily for the jury, similar to the manner inwhich negligence is determined. Therefore, thefactors set forth by Wade and used in Roach v.Kononen, supra, are not the bases for instructionsto the jury but are for the use of the court indetermining whether a case has been made outwhich is submissible to the jury. If such a case hasbeen made out, then it is submitted to the jury forits determination under instructions as to whatconstitutes a "dangerously defective" product,much in the same manner as negligence issubmitted to the jury under the "reasonable man"rule. 16Defendant contends that other and differentinstructions were given to plaintiff's employer,Pope and Talbot, and the accident occurredbecause these instructions were not followed and,therefore, the sander was misused and defendant isnot responsible for the accident. Defendant'semployee who inspected the installation of thesander testified that he told Pope and Talbot'ssander superintendent, as previously indicated,that the top half of the sander should not be raisedwhile material was being run through it, and thisevidence was not refuted. It is not clear from thetestimony of the sander operator whether the tophalf of the machine was in the process of beingraised at the time the accident occurred, as iscontended by defendant. believe the testimony iscapable of being interpreted to the effect that whenthe thicker sheets caused by the press malfunctionshowed up, they all seemed to be of a uniformthickness, and the top of the machine was set toaccommodate the extra thickness; then a numberof pieces were run through before the thin piece,which had been mixed in with the thick ones,came along and was regurgitated due to theinsufficient pressure exerted by the pinch rolls tooffset the backward pressure of the sanding heads.16Wade, supra note 2, at 834-835. Professor Wade alsosuggests an appropriate jury instruction which embodiesthe new standard. We have taken the liberty of modifyinghis suggestion to a form which seems to us moreappropriate for use by a jury. It is as follows: `The lawimputes to a manufacturer [supplier] knowledge of theharmful character of his product whether he actuallyknows of it or not. He is presumed to know of the harmfulcharacteristics of that which he makes [supplies].Therefore, a product is dangerously defective if it is soharmful to persons [or property] that a reasonable prudentmanufacturer [supplier] with this knowledge would nothave placed it on the market."PHILLIPS V. KIMWOOD MACHINE CO.

344 9. PRODUCT LIABILITYIn any event, we believe the testimony wouldpermit the jury to find that whether the top hadbeen regulated for a specific thickness of materialat the time of the accident or was in the process ofbeing raised, the accident would have occurred ineither circumstance.Even if the testimony is capable of the soleconstruction which defendant puts on it, there isno testimony that the danger of raising the top ofthe sander while running material through it wasever explained to Pope and Talbot, 17 and, in theabsence of such an explanation, we believe thequestion of whether the accident occurred becausethe sander was dangerously defective or because itwas misused was one for the jury and should notbe decided as a matter of law, as contended bydefendant.Defendant calls to our attention that one of theprincipal rationales behind the imposition of strictliability upon the manufacturer for injuries causedby dangerously defective products is that themanufacturer is in the position of distributing thecost of such risks among all users of the product.Defendant then argues that in the present situationPope and Talbot would normally bear theresponsibility for the injury to its employee andthat because Pope and Talbot is just as capable ofspreading the cost of injury by the sale of itsproduct as is defendant, there is no logic inimposing liability without fault upon defendant forthe purpose of distributing the risk.Defendant thus confronts us with the problemwe have already been faced with in Wights v. StaffJennings, 241 Or. 301, 405 P.2d 624 (1965), wherewe noted the difficulty of limiting the applicabilityof the enterprise liability theory as a basis forrecovery in tort. While the enterprise liabilitytheory may be indifferent as to whether thedefendant or plaintiff's employer should bear thisloss, there are other theories which allow us tomake a choice.Where a defendant's product is adjudged by ajury to be dangerously defective, imposition ofliability on the manufacturer will cause him totake some steps (or at least make calculations) toimprove his product. Although such inducement17Where a user might not realize that a minor departurefrom instructions may cause serious danger, an additionalduty to warn of a danger arises. Noel, Products DefectiveBecause of Inadequate Directions or Warnings, 23 SW.L.J. 256, 263 (1969).may not be any greater under a system of strictliability than under a system of negligencerecovery, it is certainly greater than if the liabilitywas imposed on another party simply because thatother party was a better risk distributor. Wesuspect that, in the final analysis, the imposition ofliability has a beneficial effect on manufacturers ofdefective products both in the care they take andin the warning they give.The case is reversed and remanded for a newtrial.Questions and Notes1. Oregon adopted a product liability statutethat rendered the court‟s holding in Phillipsobsolete. McCathern v. Toyota Motor Corp., 332Or. 59, 23 P.3d 320 (2001).2. Note that evidence of post-accidentimprovements was admitted. Should it have been?See Ault v. International Harvester Co., 13 Cal. 3d113, 117 Cal. Rptr. 812, 528 P.2d 1148 (1974)(holding post-accident evidence admissible);contra, Grenada Steel Indus., Inc. v. AlabamaOxygen Co., Inc., 695 F.2d 883 (5th Cir. 1983).3. What does the court mean in footnote 3?4. Some courts consider failure to warn as anegligence theory. "[N]otwithstanding what a fewcourts have said, a claimant who seeks recoveryon this basis [failure to warn] must, according tothe generally accepted view, prove that themanufacturer-designer was negligent." PROSSER &KEETON, § 99, at 697. Is this sound public policy?5. Note that in some cases the duty to warnextends beyond the sale of the product, so that adefect discovered only after the product is soldwill still create a duty to warn. See the Washingtonstatute, infra, R.C.W. 7.72.030(1)(c).6. One commentator suggests that in this typeof case the court is making the employer into a"conscripted samaritan" through "the use of tortlaw to force one actor (e.g., a manufacturer) toadopt measures to protect a potential victim (e.g.,a worker) from the misdeeds of a third party (e.g.,an employer) or even from the foolhardiness of thevictim himself." Weiler, Workers' Compensationand Product Liability: The Interaction of a TortPHILLIPS V. KIMWOOD MACHINE CO.

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 345and a Non-Tort Regime, 50 OHIO ST. L.J. 825, 829(1989). Do you agree?7. As this case illustrates, one of the thorniestproblems in products liability law is theharmonization of the workers' compensationregime (which is a “no-fault” system ofcompensation) and tort liability for manufacturersof products (which requires, at leats in multipletortfeasorcases, the allocation of fault). If theinjured victim is partially at fault, and if theemployer appears to be at fault, how does thisaffect the liability of the manufacturer? In Clark v.Pacificorp, 118 Wash. 2d 167, 822 P.2d 162(1992), the court wrestled with these issues, but itsresolution was superseded by a statute whichprevented the employer‟s share of liability frombeing included in any comparative fault analysis.The net effect is that the manufacturer can‟t takeadvantage of the employer‟s fault to try to reduceits liability. For a thoughtful analysis of thegeneral problem of integrating the two regimes(product liability and worker's compensation), seethe Weiler article, supra note 6.BROWN v. SUPERIOR COURT44 Cal. 3d 1049, 245 Cal. Rptr. 412, 751 P.2d470 (1988)[You will recall that portions of this opinionwere included supra (Chapter Three, § B). Thecourt held that the Sindell market share approachwas not available for actions of fraud and breachof warranty and that defendants would in otherways be severally, not jointly, liable based on theirmarket share. The following sections address theproduct liability issues.]* * *A. Strict Liability in GeneralThe doctrine of strict liability had its genesisin a concurring opinion by Justice Roger Traynorin Escola v. Coca Cola Bottling Co. (1944) 24 Cal.2d 453, 461, 150 P.2d 436. He suggested that amanufacturer should be absolutely liable if, inplacing a product on the market, it knew theproduct was to be used without inspection, and itproved to have a defect that caused injury. Thepolicy considerations underlying this suggestionwere that the manufacturer, unlike the public, cananticipate or guard against the recurrence ofhazards, that the cost of injury may be anoverwhelming misfortune to the person injuredwhereas the manufacturer can insure against therisk and distribute the cost among the consumingpublic, and that it is in the public interest todiscourage the marketing of defective products.This court unanimously adopted Justice Traynor'sconcept in Greenman v. Yuba Power Products, Inc.(1963) 59 Cal. 2d 57, 62, 27 Cal. Rptr. 697, 377P.2d 897, holding a manufacturer strictly liable intort and using the formulation of the doctrine setforth in Escola.Strict liability differs from negligence in thatit eliminates the necessity for the injured party toprove that the manufacturer of the product whichcaused injury was negligent. It focusses not on theconduct of the manufacturer but on the productitself, and holds the manufacturer liable if theproduct was defective.In 1965, soon after our decision in Greenman,the RESTATEMENT SECOND OF TORTS publishedsection 402A, which set forth the strict liabilitydoctrine (hereinafter section 402A). 1 Almost allstates have adopted some form of strict liabilitysince that time. (PROSSER & KEETON ON TORTS(5th ed. 1984) § 99, p. 694.)This court refined and explained applicationof the principle in Cronin v. J.B.E. Olson Corp.(1972) 8 Cal. 3d 121, 104 Cal. Rptr. 433, 501 P.2d1153, and Barker v. Lull Engineering Co. (1978)20 Cal. 3d 413, 143 Cal. Rptr. 225, 573 P.2d 443(hereafter Barker). In Cronin, we rejected therequirement of section 402A that the defect in aproduct must be "unreasonably dangerous" to theconsumer in order to invoke strict liability, holdingthat the requirement "rings of negligence" (8 Cal.3d at p. 132, 104 Cal. Rptr. 433, 501 P.2d 1153)1Section 402A provides: "(1) One who sells anyproduct in a defective condition unreasonably dangerous tothe user or consumer or to his property is subject toliability for physical harm thereby caused to the ultimateuser or consumer, or to his property, if [&] (a) the seller isengaged in the business of selling such a product, and [&](b) it is expected to and does reach the user or consumerwithout substantial change in the condition in which it issold. [&] (2) The rule stated in Subsection (1) appliesalthough [&] (a) the seller has exercised all possible care inthe preparation and sale of the product, and [&] (b) the useror consumer has not bought the product from or enteredinto any contractual relation with the seller."PHILLIPS V. KIMWOOD MACHINE CO.

346 9. PRODUCT LIABILITYand that the showing of a defect whichproximately caused injury is sufficient to justifyapplication of the doctrine.Barker defined the term "design defect" in thecontext of strict liability. In that case the plaintiffwas injured while operating a piece of heavyconstruction equipment, and claimed that a safetydevice called an "outrigger" would have preventedthe accident. We held that the defendant could beheld liable for a defect in design.Barker identified three types of productdefects. (20 Cal. 3d at p. 428, 143 Cal. Rptr. 225,573 P.2d 443.) First, there may be a flaw in themanufacturing process, resulting in a product thatdiffers from the manufacturer's intended result.The archetypal example of such a defect wasinvolved in Escola, supra, 24 Cal. 2d 453, 150P.2d 436, a Coca Cola bottle that exploded. Such amanufacturing defect did not exist in the heavyequipment that caused the injury in Barker, and isnot alleged in the present case.Second, there are products which are"perfectly" manufactured but are unsafe becauseof the absence of a safety device, i.e., a defect indesign. This was the defect alleged in Barker. Itheld that a product is defectively designed if itfailed to perform as safely as an ordinaryconsumer would expect when used as intended orreasonably foreseeable, or if, on balance, the riskof danger inherent in the challenged designoutweighs the benefits of the design. (20 Cal. 3d atp. 430, 143 Cal. Rptr. 225, 573 P.2d 443.) Plaintiffasserts this test should be applied in the presentcase because DES contained a design defect.The third type of defect identified in Barker isa product that is dangerous because it lacksadequate warnings or instructions. According toplaintiff, defendants here failed to warn of thedangers inherent in the use of DES. We areconcerned, therefore, with the second and thirdtypes of defects described in Barker.B. Strict Liability and Prescription DrugsEven before Greenman was decided, themembers of the American Law Institute, inconsidering whether to adopt a rule of strictliability, pondered whether the manufacturer of aprescription drug should be subject to the doctrine.(38 ALI Proc. 19, 90-92, 98 (1961).) During arather confusing discussion of a draft of what wasto become section 402A, a member of the instituteproposed that drugs should be exempted fromstrict liability on the ground that it would be"against the public interest" to apply the doctrineto such products because of "the very serioustendency to stifle medical research and testing."Dean Prosser, who was the reporter for theRESTATEMENT SECOND OF TORTS, responded thatthe problem was a real one, and that he had it inmind in drafting section 402A. A motion toexempt prescription drugs from the section wasdefeated on the suggestion of Dean Prosser thatthe problem could be dealt with in the commentsto the section. 2 However, a motion to state theexemption in a comment was also defeated. (38ALI Proc. 19, 90-98, supra.) At the next meetingof the institute in 1962, section 402A wasapproved together with comment k thereto. (41ALI Proc. 227, 244 (1962).)The comment provides that the producer of aproperly manufactured prescription drug may beheld liable for injuries caused by the product onlyif it was not accompanied by a warning of dangersthat the manufacturer knew or should have knownabout. It declares: "k. Unavoidably unsafeproducts. 3 There are some products which, in thepresent state of human knowledge, are quiteincapable of being made safe for their intendedand ordinary use. These are especially common inthe field of drugs. An outstanding example is thevaccine for the Pasteur treatment of rabies, whichnot uncommonly leads to very serious anddamaging consequences when it is injected. Sincethe disease itself invariably leads to a dreadfuldeath, both the marketing and use of the vaccineare fully justified, notwithstanding theunavoidable high degree of risk which theyinvolve. Such a product, properly prepared, andaccompanied by proper directions and warning, isnot defective, nor is it unreasonably dangerous.The same is true of many other drugs, vaccines,and the like, many of which for this very reasoncannot legally be sold except to physicians, orunder the prescription of a physician. It is also truein particular of many new or experimental drugs2One commentator has pointed out that at the 1961meeting Dean Prosser proposed an exemption even broaderthan that suggested by the motion to exempt prescriptiondrugs from strict liability. (Page, Generic Product Risks:The Case Against Comment k and for Strict Tort Liability(1983) 58 N.Y.U. L. REV., 853, 863, 866.)3We discuss in footnote 11, post, plaintiff's assertionthat comment k does not apply to all prescription drugs butonly to those found to be "unavoidably dangerous."BROWN V. SUPERIOR COURT

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 347as to which, because of lack of time andopportunity for sufficient medical experience,there can be no assurance of safety, or perhapseven of purity of ingredients, but such experienceas there is justifies the marketing and use of thedrug notwithstanding a medically recognizablerisk. The seller of such products, again with thequalification that they are properly prepared andmarketed, and proper warning is given, where thesituation calls for it, is not to be held to strictliability for unfortunate consequences attendingtheir use, merely because he has undertaken tosupply the public with an apparently useful anddesirable product, attended with a known butapparently reasonable risk."Comment k has been analyzed and criticizedby numerous commentators. While there is somedisagreement as to its scope and meaning, there isa general consensus that, although it purports toexplain the strict liability doctrine, in fact theprinciple it states is based on negligence. (E.g.,Schwartz, Unavoidably Unsafe Products:Clarifying the Meaning and Policy BehindComment K (1985) 42 WASH. & LEE L. REV. 1139,1141; McClellan, Drug Induced Injury (1978) 25WAYNE L. REV. 1, 2; Kidwell, The Duty to Warn:A Description of the Model of Decision (1975) 53TEX. L. REV. 1375, 1377-1378; Merrill,Compensation for Prescription Drug Injuries(1973) 59 VA. L. REV. 1, 50.) That is, comment kwould impose liability on a drug manufactureronly if it failed to warn of a defect of which iteither knew or should have known. This conceptfocuses not on a deficiency in the product - thehallmark of strict liability - but on the fault of theproducer in failing to warn of dangers inherent inthe use of its product that were either known orknowable - an idea which "rings of negligence," inthe words of Cronin, supra, 8 Cal. 3d 121, 132,104 Cal. Rptr. 433, 501 P.2d 1153. 44The test stated in comment k is to be distinguishedfrom strict liability for failure to warn. Although bothconcepts identify failure to warn as the basis of liability,comment k imposes liability only if the manufacturer knewor should have known of the defect at the time the productwas sold or distributed. Under strict liability, the reasonwhy the warning was not issued is irrelevant, and themanufacturer is liable even if it neither knew nor couldhave known of the defect about which the warning wasrequired. Thus, comment k, by focussing on theblameworthiness of the manufacturer, sets forth a testwhich sounds in negligence, while imposition of liabilityfor failure to warn without regard to the reason for suchfailure is consistent with strict liability since it asks onlyComment k has been adopted in theoverwhelming majority of jurisdictions that haveconsidered the matter. (E.g., DeLuryea v. WinthropLaboratories, etc. (8th Cir. 1983) 697 F.2d 222,228-229; Basko v. Sterling Drug, Inc. (2d Cir.1969) 416 F.2d 417, 425-426; Stone v. Smith,Kline & French Lab. (Ala. 1984) 447 So. 2d 1301,1303-1304; Gaston v. Hunter (App. 1978) 121Ariz. 33, 588 P.2d 326, 338-341; Chambers v. G.D.Searle & Co. (D. Md. 1975) 441 F. Supp. 377,380-381; Johnson v. American Cyanamid Co.(1986) 239 Kan. 279, 718 P.2d 1318, 1323.) InCalifornia, several decisions of the Courts ofAppeal have embraced the comment k exemption(Carmichael v. Reitz (1971) 17 Cal. App. 3d 958,988-989, 95 Cal. Rptr. 381; Christofferson v.Kaiser Foundation Hospitals (1971) 15 Cal. App.3d 75, 79-80, 92 Cal. Rptr. 825; Toole v.Richardson-Merrell Inc. (1967) 251 Cal. App. 2d689, 708-711, 60 Cal. Rptr. 398), but this court hasnever spoken to the issue. 5We are aware of only one decision that hasapplied the doctrine of strict liability toprescription drugs. (Brochu v. OrthoPharmaceutical Corp. (1st Cir. 1981) 642 F.2d652, 654-657.) 6 Most cases have embraced thewhether the product that caused injury contained a defect.(See Little v. PPG Industries, Inc. (1978), 19 Wash. App.812, 579 P.2d 940, 946.)5Contrary to plaintiff's assertion, we did not "envision"the application of strict liability to prescription drugs inSindell. That issue was not discussed in the opinion,although we relied on some of the policy considerationsunderlying strict liability in justifying modification of therules of proximate cause in a manner we discuss below.Nor do we agree with plaintiff's claim that Carmichael andToole did not adopt comment k. Even though Carmichaelwas decided before Barker defined a design defect,Carmichael's holding that comment k applies toprescription drugs was not affected by that definition.Toole relied on and applied the comment k test, since itsconclusion that the defendant was liable for the plaintiff'sinjuries was based on the defendant's failure to provideadequate warnings regarding dangers of the drug and todisclose certain test results to the government.6In Brochu, the plaintiff had taken an oralcontraceptive which contained 100 milligrams of estrogenas well as other ingredients. According to the evidence attrial, estrogen posed a serious risk of harm to her, and thedefendant manufactured another contraceptive pillcontaining only 50 milligrams of estrogen which wasequally effective.BROWN V. SUPERIOR COURT

348 9. PRODUCT LIABILITYrule of comment k without detailed analysis of itslanguage. A few, notably Kearl v. LederleLaboratories, supra, 172 Cal. App. 3d 812, 218Cal. Rptr. 453 (hereafter Kearl), have conditionedapplication of the exemption stated therein on afinding that the drug involved is in fact"unavoidably dangerous," reasoning that thecomment was intended to exempt only such drugsfrom strict liability. (Accord, Toner v. LederleLaboratories (1987) 112 Idaho 328, 732 P.2d 297,303-309; see also Feldman v. LederleLaboratories (1984) 97 N.J. 429, 479 A.2d 374,382-383 (involving allegations of a failure towarn, but stating that "whether a drug isunavoidably unsafe should be decided on a caseby-casebasis.").) And in Collins v. Eli Lilly Co.(1984) 116 Wisc. 2d 166, 342 N.W.2d 37, 52, itwas held that comment k was applicable only ifthe drug in question was placed on the marketwithout adequate testing because of exigentcircumstances. 7We appear, then, to have three distinctchoices: (1) to hold that the manufacturer of aprescription drug is strictly liable for a defect in itsproduct because it was defectively designed, asthat term is defined in Barker, or because of afailure to warn of its dangerous propensities eventhough such dangers were neither known norscientifically knowable at the time of distribution; 8(2) to determine that liability attaches only if amanufacturer fails to warn of dangerouspropensities of which it was or should have beenaware, in conformity with comment k; or (3) todecide, like Kearl and Toner v. LederleLaboratories, supra, 732 P.2d 297, 303-309, thatstrict liability for design defects should apply toprescription drugs unless the particular drug whichcaused the injury is found to be "unavoidablydangerous."We shall conclude that (1) a drug7In her dissenting opinion in Finn v. G.D. Searle & Co.(1984) 35 Cal. 3d 691, 705, 200 Cal. Rptr. 870, 677 P.2d1147, Chief Justice Bird advocated a strict liability rule forprescription drugs based on the test set forth in Barker.8We agree with the suggestion of a commentator that amanufacturer's knowledge should be measured at the timea drug is distributed because it is at this point that themanufacturer relinquishes control of the product. (Wade,On the Effect in Product Liability of KnowledgeUnavailable Prior to Marketing (1983) 58 N.Y.U. L. REV.734, 753-754.)manufacturer's liability for a defectively designeddrug should not be measured by the standards ofstrict liability; (2) because of the public interest inthe development, availability, and reasonable priceof drugs, the appropriate test for determiningresponsibility is the test stated in comment k; and(3) for these same reasons of policy, wedisapprove the holding of Kearl that only thoseprescription drugs found to be "unavoidablydangerous" should be measured by the comment kstandard and that strict liability should apply todrugs that do not meet that description.1. Design Defect* * *[T]here is an important distinction betweenprescription drugs and other products such asconstruction machinery (Barker; Pike v. Frank G.Hough Co. (1970) 2 Cal. 3d 465, 85 Cal. Rptr.629, 467 P.2d 229), a lawnmower (Luque v.McLean (1972) 8 Cal. 3d 136, 104 Cal. Rptr. 443,501 P.2d 1163), or perfume (Moran v. Faberge,Inc. (1975) 273 Md. 538, 332 A.2d 11), theproducers of which were held strictly liable. In thelatter cases, the product is used to make workeasier or to provide pleasure, while in the former itmay be necessary to alleviate pain and suffering orto sustain life. Moreover, unlike other importantmedical products (wheelchairs, for example),harm to some users from prescription drugs isunavoidable. Because of these distinctions, thebroader public interest in the availability of drugsat an affordable price must be considered indeciding the appropriate standard of liability forinjuries resulting from their use.Perhaps a drug might be made safer if it waswithheld from the market until scientific skill andknowledge advanced to the point at whichadditional dangerous side effects would berevealed. But in most cases such a delay inmarketing new drugs - added to the delay requiredto obtain approval for release of the product fromthe Food and Drug Administration - would notserve the public welfare. Public policy favors thedevelopment and marketing of beneficial newdrugs, even though some risks, perhaps seriousones, might accompany their introduction, becausedrugs can save lives and reduce pain and suffering.If drug manufacturers were subject to strictliability, they might be reluctant to undertakeresearch programs to develop somepharmaceuticals that would prove beneficial or todistribute others that are available to be marketed,BROWN V. SUPERIOR COURT

§ B. THE ADOPTION OF STRICT LIABILITY IN TORT 349because of the fear of large adverse monetaryjudgments. Further, the additional expense ofinsuring against such liability - assuminginsurance would be available - and of researchprograms to reveal possible dangers not detectableby available scientific methods could place thecost of medication beyond the reach of those whoneed it most.* * *The possibility that the cost of insurance andof defending against lawsuits will diminish theavailability and increase the price ofpharmaceuticals is far from theoretical.Defendants cite a host of examples of productswhich have greatly increased in price or have beenwithdrawn or withheld from the market because ofthe fear that their producers would be held liablefor large judgments.For example, according to defendant E.R.Squibb & Sons, Inc., Bendectin, the onlyantinauseant drug available for pregnant women,was withdrawn from sale in 1983 because the costof insurance almost equalled the entire incomefrom sale of the drug. Before it was withdrawn,the price of Benedictin increased by over 300percent. (132 CHEMICAL WEEK (June 12, 1983) p.14.)Drug manufacturers refused to supply a newlydiscovered vaccine for influenza on the groundthat mass inoculation would subject them toenormous liability. The government thereforeassumed the risk of lawsuits resulting frominjuries caused by the vaccine. (Franklin & Mais,Tort Law and Mass Immunization Programs(1977) 65 CAL. L. REV. 754, 769 et seq.; Feldmanv. Lederle Laboratories (1983) 189 N.J. Super.424, 460 A.2d 203, 209.) One producer ofdiphtheria-tetanus-pertussis vaccine withdrewfrom the market, giving as its reason "extremeliability exposure, cost of litigation and thedifficulty of continuing to obtain adequateinsurance." (Hearing Before Subcom. on Healthand the Environment of House Com. on Energyand Commerce on Vaccine Injury Compensation,98th Cong., 2d Sess. (Sept. 10, 1984) p. 295.)There are only two manufacturers of the vaccineremaining in the market, and the cost of each doserose a hundredfold from 11 cents in 1982 to$11.40 in 1986, $8 of which was for an insurancereserve. The price increase roughly paralleled anincrease in the number of lawsuits from one in1978 to 219 in 1985. (232 SCIENCE (June 13,1986) p. 1339.) Finally, a manufacturer wasunable to market a new drug for the treatment ofvision problems because it could not obtainadequate liability insurance at a reasonable cost.(N.Y. TIMES (Oct. 14, 1986) p. 10.)There is no doubt that, from the public'sstandpoint, these are unfortunate consequences.And they occurred even though almost alljurisdictions follow the negligence standard ofcomment k. It is not unreasonable to conclude inthese circumstances that the imposition of aharsher test for liability would not further thepublic interest in the development and availabilityof these important products. 9We decline to hold, therefore, that a drugmanufacturer's liability for injuries caused by thedefective design of a prescription drug should bemeasured by the standard set forth in Barker.2. Failure to WarnFor these same reasons of policy, we rejectplaintiff's assertion that a drug manufacturershould be held strictly liable for failure to warn ofrisks inherent in a drug even though it neitherknew nor could have known by the application ofscientific knowledge available at the time ofdistribution that the drug could produce theundesirable side effects suffered by the plaintiff.Numerous cases have recognized that aproduct may be defective because of the absenceof a warning that was necessary to allow its safeuse.... While some decisions apply strict liabilityprinciples to such a defect by holding that it isirrelevant whether the manufacturer knew of thedanger or should have known of it ..., mostjurisdictions hold to the contrary. That is, liabilityis conditioned on the actual or constructiveknowledge of the risk by the manufacturer as ofthe time the product was sold or distributed.... Thisrule is consistent with comment j to section 402A,which confines the duty to warn to a situation inwhich the seller "has knowledge, or by theapplication of reasonable, developed human skilland foresight should have knowledge of ... thedanger."It has been said that to "hold the manufacturer9We express no opinion whether the products to whichthese examples relate were in fact beneficial to the publichealth. Our purpose is to demonstrate that there is arational connection between the cost and availability ofpharmaceuticals and the liability imposed on theirmanufacturers for injuries resulting from their use.BROWN V. SUPERIOR COURT

350 9. PRODUCT LIABILITYliable for failure to warn of a danger of which itwould be impossible to know based on the presentstate of human knowledge would make themanufacturer the virtual insurer of the product...."(Woodill v. Parke Davis & Co., supra, 402 N.E.2d194, 199; accord, Leibowitz v. OrthoPharmaceutical Corp. (1973) 224 Pa. Super. 418,307 A.2d 449, 458; see Schwartz, The Post-SaleDuty to Warn: Two Unfortunate Forks in the Roadto a Reasonable Doctrine (1983) 58 N.Y.U. L.REV. 892, 894-905.) The likelihood of theproducer's liability would increase with significantadvances in scientific knowledge, discouraging thedevelopment of new and improved drugs tocombat disease. Thus, we disagree with plaintiff'sassertion that defendants should be held liable forfailing to warn the physician who prescribed DESto plaintiff's mother of alleged defects in the drugthat were neither known by defendants norscientifically knowable at the time the drug wasdistributed.* * *§ C. The Restatement (3d) ofTorts (Product Liability)The most recent development in productliability law is the drafting of the Restatement (3d)of Torts (Product Liability). It has generated a fairdegree of controversy because of the perceptionthat it is unduly favorable to manufacturers. See,e.g., Frank J. Vandall, State Judges Should Rejectthe Reasonable Alternative Design Standard of theRestatement (3rd) Products Liability, § 2(B),KANSAS JOURNAL OF LAW AND PUBLIC POLICY,Fall, 1998. Proponents of the Restatement,however, have argued that it is a balancedapproach to the issue that will resolve many of theuncertainties left over from the adoption of theRestatement (2d), § 402A. Read the provisions ofthe Restatement (3d) yourself and see if you candetect any significant change from what § 402Aprovided.Restatement of the Law ThirdTorts: Products LiabilityProposed Final Draft(April 1, 1997)Chapter 1. Liability of Commercial ProductSellers Based on Product Defects atTime of SaleTopic 1. Liability Rules Applicable toProducts GenerallyCopyright (c) 1997 The American LawInstitute§ 1. LIABILITY OF COMMERCIALSELLER OR DISTRIBUTORFOR HARM CAUSED BY DEFECTIVEPRODUCTSOne engaged in the business of selling orotherwise distributing products who sells ordistributes a defective product is subject toliability for harm to persons or property caused bythe defect.§ 2. CATEGORIES OF PRODUCTDEFECTA product is defective when, at the time ofsale or distribution, it contains a manufacturingdefect, is defective in design, or is defectivebecause of inadequate instructions or warnings. Aproduct:(a) contains a manufacturing defect whenthe product departs from its intended designeven though all possible care was exercised inthe preparation and marketing of the product;(b) is defective in design when theforeseeable risks of harm posed by theproduct could have been reduced or avoidedby the adoption of a reasonable alternativedesign by the seller or other distributor, or apredecessor in the commercial chain ofdistribution, and the omission of thealternative design renders the product notreasonably safe;(c) is defective because of inadequateinstructions or warnings when the foreseeablerisks of harm posed by the product could haveBROWN V. SUPERIOR COURT

§ C. THE RESTATEMENT (3D) OF TORTS 3511been reduced or avoided by the provision ofreasonable instructions or warnings by theseller or other distributor, or a predecessor inthe commercial chain of distribution, and theomission of the instructions or warningsrenders the product not reasonably safe. 1[Ed. Note: The following appears in Comment a.Rationale.]). . . In contrast to manufacturing defects, design defectsand defects based on inadequate instructions or warningsare predicated on a different concept of responsibility. Inthe first place, such defects cannot be determined byreference to the manufacturer's own design or marketingstandards because those standards are the very ones thatplaintiffs attack as unreasonable. Some sort of independentassessment of advantages and disadvantages, to whichsome attach the label "risk-utility balancing," is necessary.Products are not generically defective merely because theyare dangerous. Many product-related accident costs can beeliminated only by excessively sacrificing product featuresthat make the products useful and desirable. Thus,trade-offs are necessary to determine which accident costsare more fairly and efficiently borne by those who incurthem, on the one hand, and, on the other hand, by productusers and consumers through the mechanism of holdingproduct sellers liable and having product prices reflect therelevant costs.Subsections (b) and (c), which impose liability forproducts that are defectively designed or sold withoutadequate warnings or instructions and are thus notreasonably safe, achieve the same general objectives asdoes liability predicated on negligence. The emphasis is oncreating incentives for manufacturers to achieve optimallevels of safety in designing and marketing products.Society does not benefit from products that are excessivelysafe -- for example, automobiles designed with maximumspeeds of 20 miles per hour -- any more than it benefitsfrom products that are too risky. Society benefits mostwhen the right, or optimal, amount of product safety isachieved. From a fairness perspective, requiring individualusers and consumers to bear appropriate responsibility forproper product use prevents careless users and consumersfrom being subsidized by more careful users andconsumers, when the former are paid damages out of fundsto which the latter are forced to contribute through higherproduct prices.In general, the rationale for imposing strict liability onmanufacturers for harm caused by manufacturing defectsdoes not apply in the context of imposing liability fordefective design and defects based on inadequateinstruction or warning. Consumer expectations as to properproduct design or warning are typically more difficult todiscern than in the case of a manufacturing defect.Moreover, the element of deliberation in settingappropriate levels of design safety is not directly analogousto the setting of levels of quality control by themanufacturer. When a manufacturer sets its quality controlat a certain level, it is aware that a given number ofproducts may leave the assembly line in a defective§ 3. CIRCUMSTANTIAL EVIDENCESUPPORTINGINFERENCE OF PRODUCT DEFECTIt may be inferred that the harm sustained bythe plaintiff was caused by a product defectexisting at the time of sale or distribution, withoutproof of a specific defect, when the incident thatharmed the plaintiff:(a) Was of a kind that ordinarily occurs asa result of product defect; and(b) Was not, in the particular case, solelythe result of causes other than product defectexisting at the time of sale or distribution.§ 4. NONCOMPLIANCE ANDCOMPLIANCE WITH PRODUCTSAFETY STATUTES OR REGULATIONSIn connection with liability for defectivedesign or inadequate instructions or warnings:(a) A product's noncompliance with anapplicable product safety statute oradministrative regulation renders the productdefective with respect to the risks sought to bereduced by the statute or regulation; and(b) A product's compliance with anapplicable product safety statute oradministrative regulation is properlycondition and cause injury to innocent victims who cangenerally do nothing to avoid injury. The implications ofdeliberately drawing lines with respect to product designsafety are different. A reasonably designed product stillcarries with it elements of risk that must be protectedagainst by the user or consumer since some risks cannot bedesigned out of the product at reasonable cost.For the liability system to be fair and efficient, most courtsagree that the balancing of risks and benefits in judgingproduct design and marketing must be done in light of theknowledge of risks and risk-avoidance techniquesreasonably attainable at the time of distribution. To hold amanufacturer liable for a risk that was not foreseeablewhen the product was marketed might foster increasedmanufacturer investment in safety. But such investment bydefinition would be a matter of guesswork. Furthermore,manufacturers may persuasively ask to be judged by anormative behavior standard to which it is reasonablypossible for manufacturers to conform. For these reasons,Subsections (b) and (c) speak of products being defectiveonly when risks were reasonably foreseeable.RESTATEMENT (3D) OF TORTS

352 9. PRODUCT LIABILITYconsidered in determining whether theproduct is defective with respect to the riskssought to be reduced by the statute orregulation, but such compliance does notpreclude as a matter of law a finding ofproduct defect.§ 5. LIABILITY OF COMMERCIALSELLER OR DISTRIBUTOR OFPRODUCT COMPONENTS FOR HARMCAUSED BY PRODUCTSINTO WHICH COMPONENTS AREINTEGRATEDOne engaged in the business of selling orotherwise distributing product components whosells or distributes a component is subject toliability for harm to persons or property caused bya product into which the component is integratedif:(a) The component is defective in itself,under §§ 1-4, and the defect causes the harm;or(1) The seller or distributor of thecomponent substantially participates in theintegration of the component into the designof the product; and(2) The integration of the componentcauses the product to be defective as definedunder §§ 1-4; and(3) The defect in the product causes theharm.§ 7. LIABILITY OF COMMERCIALSELLER OR DISTRIBUTORFOR HARM CAUSED BY DEFECTIVEFOOD PRODUCTSOne engaged in the business of selling orotherwise distributing food products who sells ordistributes a defective food product under § 2, § 3,or § 4 is subject to liability for harm to persons orproperty caused by the defect. Under § 2(a) aharm-causing ingredient of the food productconstitutes a defect if a reasonable consumerwould not expect the food product to contain thatingredient.§ 8. LIABILITY OF COMMERCIALSELLER OR DISTRIBUTOROF DEFECTIVE USED PRODUCTSOne engaged in the business of selling orotherwise distributing used products who sells ordistributes a defective used product is subject toliability for harm to persons or property caused bythe defect if the defect:(a) results from the seller's failure toexercise reasonable care; or(b) is a manufacturing defect under § 2(a)or a defect that may be inferred under § 3 andthe seller's marketing of the product wouldcause a reasonable person in the position ofthe buyer to expect the used product to presentno greater risk of defect than if the productwere new; or(c) is a defect under § 2 or § 3 in a usedproduct remanufactured by the seller or apredecessor in the commercial chain ofdistribution of the used product.A used product is a product that, prior to thetime of sale or other distribution referred to in thisSection, is commercially sold or otherwisedistributed to a buyer not in the commercial chainof distribution and used for some period of time.§ 9. LIABILITY OF COMMERCIALPRODUCT SELLER OR DISTRIBUTORFOR HARM CAUSED BYMISREPRESENTATIONOne engaged in the business of selling orotherwise distributing products who, in connectionwith the sale of a product, makes a fraudulent,negligent, or innocent misrepresentationconcerning the product is subject to liability forharm to persons or property caused by themisrepresentation.§ 10. LIABILITY OF COMMERCIALPRODUCT SELLER OR DISTRIBUTORFOR HARM CAUSED BY POST-SALEFAILURE TO WARN(a) One engaged in the business of sellingor otherwise distributing products is subject toliability for harm to persons or propertyRESTATEMENT (3D) OF TORTS

§ C. THE RESTATEMENT (3D) OF TORTS 353caused by the seller's failure to provide awarning after the time of sale or distributionof a product when a reasonable person in theseller's position would provide such awarning.(b) A reasonable person in the seller'sposition would provide a warning after thetime of sale when:(1) the seller knows or reasonablyshould know that the product poses asubstantial risk of harm to persons orproperty; and(2) those to whom a warning mightbe provided can be identified and mayreasonably be assumed to be unaware ofthe risk of harm; and(3) a warning can be effectivelycommunicated to and acted on by those towhom a warning might be provided; and(4) the risk of harm is sufficientlygreat to justify the burden of providing awarning.§ 11. LIABILITY OF COMMERCIALPRODUCT SELLER OR DISTRIBUTORFOR HARM CAUSED BY POST-SALEFAILURE TO RECALL PRODUCTOne engaged in the business of selling orotherwise distributing products is subject toliability for harm to persons or property caused bythe seller's failure to recall a product after the timeof sale or distribution if:(1) a statute or other governmentalregulation specifically requires the seller ordistributor to recall the product; or(2) the seller or distributor, in the absenceof a recall requirement under Subsection (1),undertakes to recall the product; and(b) the seller or distributor fails to actas a reasonable person in recalling theproduct.§ 12. LIABILITY OF SUCCESSOR FORHARM CAUSED BY DEFECTIVEPRODUCTS SOLD COMMERCIALLYBY PREDECESSORA successor corporation or other businessentity that acquires assets of a predecessorcorporation or other business entity is subject toliability for harm to persons or property caused bya defective product sold or otherwise distributedcommercially by the predecessor if theacquisition:(a) is accompanied by an agreement forthe successor to assume such liability; or(b) results from a fraudulent conveyanceto escape liability for the debts or liabilities ofthe predecessor; or(c) constitutes a consolidation or mergerwith the predecessor; or(d) results in the successor's becoming acontinuation of the predecessor.§ 14. SELLING OR OTHERWISEDISTRIBUTING AS ONE'S OWNA PRODUCT MANUFACTURED BYANOTHEROne engaged in the business of selling orotherwise distributing products who sells ordistributes as its own a product manufactured byanother is subject to the same liability as thoughthe seller or distributor were the product'smanufacturer.§ 15. GENERAL RULE GOVERNINGCAUSAL CONNECTION BETWEENPRODUCT DEFECT AND HARMWhether a product defect caused harm topersons or property is determined by theprevailing rules and principles governingcausation in tort.§ 16. INCREASED HARM DUE TOPRODUCT DEFECT(a) When a product is defective at thetime of sale and the defect is a substantialfactor in increasing the plaintiff's harmRESTATEMENT (3D) OF TORTS

354 9. PRODUCT LIABILITYbeyond that which would have resulted fromother causes, the product seller is subject toliability for the increased harm.(b) If proof supports a determination ofthe harm that would have resulted from othercauses in the absence of the product defect,the product seller's liability is limited to theincreased harm attributable solely to theproduct defect.(c) If proof does not support adetermination under Subsection (b) of theharm that would have resulted in the absenceof the product defect, the product seller isliable for all of the plaintiff's harm attributableto the defect and other causes.(d) A seller of a defective product who isheld liable for part of the harm suffered by theplaintiff under Subsection (b), or all of theharm suffered by the plaintiff underSubsection (c), is jointly and severally liablewith other parties who bear legalresponsibility for causing the harm,determined by applicable rules of joint andseveral liability.§ 17. APPORTIONMENT OFRESPONSIBILITY BETWEEN OR AMONGPLAINTIFF, SELLERS ANDDISTRIBUTORS OF DEFECTIVEPRODUCTS, AND OTHERS(a) A plaintiff's recovery of damages forharm caused by a product defect may bereduced if the conduct of the plaintiffcombines with the product defect to cause theharm and the plaintiff's conduct fails toconform to generally applicable rulesestablishing appropriate standards of care.(b) The manner and extent of thereduction under Subsection (a) and theapportionment of plaintiff's recovery amongmultiple defendants are governed by generallyapplicable rules apportioning responsibility.§ 18. DISCLAIMERS, LIMITATIONS,WAIVERS, AND OTHERCONTRACTUAL EXCULPATIONS ASDEFENSES TO PRODUCTSLIABILITY CLAIMS FOR HARM TOPERSONSDisclaimers and limitations of remedies byproduct sellers or other distributors, waivers byproduct purchasers, and other similar contractualexculpations, oral or written, do not bar or reduceotherwise valid products liability claims againstsellers or other distributors of new products forharm to persons.§ 19. DEFINITION OF "PRODUCT"For purposes of this Restatement:(a) A product is tangible personalproperty distributed commercially for use orconsumption. Other items, such as realproperty and electricity, are products when thecontext of their distribution and use issufficiently analogous to the distribution anduse of tangible personal property that it isappropriate to apply the rules stated in thisRestatement.(b) Services, even when providedcommercially, are not products.(c) Human blood and human tissue, evenwhen provided commercially, are not subjectto the rules of this Restatement.Questions and Notes1. A scholar of product liabilty law sees in theadoption of the Restatement (3d) of Torts (ProductLiability) an opportunity to re-examine thefundamental purposes of tort law. See M. StuartMadden, Selected Federal Tort Reform andRestatement Proposals Through the Lenses ofCorrective Justice and Efficiency, 32 Ga. L. Rev.1017 (1998).2. A call for a reformulation of several keyfeatures of the Restatement can be found in FrankJ. Vandall & Joshua F. Vandall, A Call for anAccurate Restatement (Third) of Torts: DesignDefect 33 U. Mem. L. Rev. 909 (2003).RESTATEMENT (3D) OF TORTS

Chapter 10Professional Negligence§ A. Medical Malpractice1. NegligenceKNIGHT v. HAYDARY165 Ill. Dec. 847, 585 N.E.2d 243 (1992)Justice McLAREN delivered the opinion ofthe courtThis appeal involves an action in malpracticeagainst two doctors, A. Lee Haydary and ErwinRobin. The case is brought by Fredrick Knight, asspecial administrator of the estate of PatriceKnight, deceased, in a wrongful death action and asurvival action. The alleged negligence resulted insevere brain damage causing death while Patricewas under the care of Dr. Haydary for treatment ofa miscarriage. The case was tried before a jury inthe circuit court of Kane County. At the close ofplaintiff's case in chief, the trial court granted adirected verdict in favor of Dr. Robin. After a fulltrial, the jury returned a verdict in favor of Dr.Haydary. Plaintiff now appeals from theseverdicts.The issues presented for review are (1)whether plaintiff is entitled to a judgmentnotwithstanding the verdict (j.n.o.v.) on the issueof Dr. Haydary's liability and a new trial on theissue of damages, (2) whether the jury verdict infavor of Dr. Haydary was contrary to the manifestweight of the evidence, and (3) whether the trialcourt erred in barring one of plaintiff's expertsfrom testifying. We affirm.On July 18, 1983, Patrice Knight wasadmitted to the Sherman Hospital emergencyroom in order to receive care for a miscarriageoccurring between the 12th and 14th weeks ofpregnancy. Her obstetrician and gynecologist, Dr.A. Lee Haydary, instructed her to come to thehospital after determining through a telephoneconversation that her amniotic sac had ruptured,indicating an abnormal event in her pregnancy.After passing the fetus, Patrice was admitted to thelabor and delivery unit of the hospital where shereceived an IV of 1,000 cc's of "Lactated Ringer's"solution containing one ampule (1 cc) of Pitocin.Following surgery, patients who should not eatsolid foods are given an IV which injects anourishing solution into the body. When patientsreceive liquids of this type, they must also receiveelectrolytes in order to maintain the properbalance of certain elements in the body, such assodium, with the fluids within the body.Electrolytes are contained in the foods people eat.However, they can also be reduced to a fluid state."Lactated Ringer's" is a solution which containsthese essential electrolytes and is administered to apatient through an IV.Pitocin, a brand-name manufactured drug, is asynthetic preparation of a naturally occurringhormone, oxytocin, which is produced in the areaof the brain called the hypothalamus. Pitocin isused to promote the expulsion of the products ofconception that might still be in the uterus. If theuterus is not emptied of the products ofconception, it will continue to bleed. One potentialside effect of Pitocin is that it may causehyponatremia, due to its intrinsic antidiureticeffect. In other words, it may cause an individualto retain water which would otherwise beexcreted. Such water retention could result indamaging swelling to the body including parts ofthe brain.Upon her admission to the hospital, acomplete blood count (CBC) was taken fromPatrice. A CBC is used in order to determine,among other things, whether there is a properbalance between essential electrolytes and bodywater.Approximately 2 1 /2 hours after her admissionto the labor and delivery department, Patricepassed additional tissue. Later that evening, asecond IV bottle of 1,000 cc's of "LactatedRinger's" with one ampule of Pitocin wasadministered with Dr. Haydary's consent. Thefollowing morning of July 19, Patrice received aKNIGHT V. HAYDARY

356 10. PROFESSIONAL NEGLIGENCEthird IV bottle of "Lactated Ringer's" with oneampule of Pitocin. Because the previous IVbecame clotted with blood, it was discontinuedwith 200 cc's remaining in the bottle. Thatmorning, Dr. Haydary visited Patrice, performedan examination, and diagnosed an incompleteabortion based upon his findings of uterusenlarged to six times normal size and a vaginafilled with blood. In order to remove the tissue orproducts of conception from the uterine cavity, Dr.Haydary performed a dilation and curettage(D&C), a surgical procedure involving a scrapingof the wall of the uterus. Following the D&Cprocedure at approximately 1:45 p.m., Patricereceived a fourth IV bottle. This IV contained oneampule of Pitocin, along with 1,000 cc's of 5%dextrose and water (D5W). This IV was to beadministered over a 12-hour period. The D5Wsolution has a nutritive value but contains noelectrolytes. In addition, Patrice was permitted tohave a general diet and to take fluids as desired.Patrice received a fifth IV bottle of 1,000 cc'sD5W with one ampule of Pitocin at 3:30 a.m. July20. At this time Patrice began to develop aheadache for which she received several forms ofmedication and treatment from the nurses on duty.At approximately 5:30 a.m., Patrice vomited andreported some relief of her headache. Atapproximately 8 a.m., Patrice stated to a nurse thatshe was experiencing a less-severe headache forwhich she obtained pain medication from thenurse in the form of a pill. Patrice then becameweepy and spoke with the nurse about hermiscarriage. Patrice subsequently vomited a smallamount.Dr. Haydary visited Patrice in her hospitalroom at approximately 10:50 a.m. on July 20.Patrice complained of headache, nausea, vomiting,and diarrhea to Dr. Haydary. She believed that shehad the flu and felt unable to go home. As a result,Dr. Haydary decided to keep her in the hospital.Prior to leaving that morning, Dr. Haydary orderedVistaril to control the vomiting and relieve theheadache. While he was at the hospital, Dr.Haydary told a nurse to discontinue Patrice's IVwith Pitocin, which had about 200 cc's of fluidremaining. A nurse hung an IV of D5W withoutPitocin at around noon.At approximately 1 p.m. Patrice was found tobe unconscious and having seizure-like movementin her arms. A nurse called Dr. Haydary to informhim of Patrice's condition. Dr. Haydary, who wasout of the hospital at the time, ordered a completeblood count and a blood clotting test and arrangedto have a physician see Patrice. This physician wasDr. Erwin Robin, an internist with a specialty incardiac medicine. Following the seizure-likemovements, Patrice began screaming, and then shebegan to rest.Dr. Robin arrived at approximately 2 p.m. andexamined Patrice. In the course of thisexamination he was able to listen to her heart, takeher blood pressure, and conduct a briefneurological examination by checking herpupillary reflexes. Patrice was unable to respondverbally to his questions. Dr. Robin found Patriceto be medically and neurologically normal anddetermined that her actions reflected possiblepsychological problems. Dr. Robin called Dr.Haydary, suggested that he come to the hospital,and advised that the patient be seen by either apsychiatrist or a neurologist.At 3 p.m. a psychiatrist arrived who alsoconducted a neurological examination. Thisexamination included a look into Patrice's eyes inorder to assess whether there was pressure in thebrain by examining the fundus of the eye with anophthalmoscope. The psychiatrist found the eyesto be within normal limits. Her reflexes were alsoassessed to be within normal limits. However,after 10 or 15 minutes, the psychiatrist observedPatrice undergo a grand mal seizure lastingapproximately 10 minutes. After witnessing theseizure and noting that one pupil was markedlydilated compared to the other one, as well asfinding a positive babinski sign (where the big toemoves when the outer side of the foot is scratched)the psychiatrist felt there was an organic problemwith Patrice's brain. The psychiatrist thentransferred Patrice to the intensive care unit atSherman Hospital and called Dr. Haydary toadvise him of the patient's development. Thepsychiatrist indicated that the situation required aneurologist or a neurosurgeon. Dr. Haydaryagreed. Within five minutes, a neurologist (Dr.Lupton) arrived.When Dr. Lupton arrived at approximately4:30 p.m., Patrice was confused and combative, soDr. Lupton prescribed valium. Dr. Luptonproceeded to conduct a neurological examination.His initial assessment was that Patrice was normal,but at approximately 5 p.m., Patrice became lessresponsive and her pupils became dilated andfixed. Her blood pressure then becameexceedingly elevated and suddenly fell to zero.She stopped breathing and signs of an intact brainKNIGHT V. HAYDARY

§ A. MEDICAL MALPRACTICE 357stem were absent.Patrice died of hyponatremia, a statecharacterized by the retention of water in the bodyand inappropriately low levels of sodium. Thedecreased sodium level causes the brain to swell.In this instance, the swelling took place to such anextent that the brain was herniated from the brainstem, ineluctably causing death.Plaintiff first argues that he is entitled to ajudgment notwithstanding the verdict (j.n.o.v.) onthe issue of Dr. Haydary's liability for damagesresulting from the death of Patrice. Under thePedrick standard, plaintiff is entitled to a j.n.o.v.only if all of the evidence viewed in the aspectmost favorable to the defendant sooverwhelmingly favors the plaintiff that nocontrary verdict based on the evidence could everstand. (Pedrick v. Peoria & Eastern R.R. Co.(1967)), 37 Ill. 2d 494, 510, 229 N.E.2d 504;Connelly v. General Motors Corp. (1989), 184 Ill.App. 3d 378, 385, 132 Ill. Dec. 630, 540 N.E.2d370.) The Pedrick standard is properly applied inreviewing the denial of a motion for j.n.o.v.Runimas v. Howe (1981), 94 Ill. App. 3d 357, 359,49 Ill. Dec. 936, 418 N.E.2d 956.In a medical malpractice case, the plaintiff, byuse of expert testimony, must establish thestandards of care against which thedefendant/doctor's conduct is measured. (Borowskiv. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328N.E.2d 301.) The plaintiff must then prove that,judged in the light of these standards, the doctorwas unskillful or negligent and that his want ofskill or care caused the injury to the plaintiff.(Borowski, 60 Ill. 2d at 423, 328 N.E.2d 301.)Whether the doctor deviated from the standard ofcare and whether his conduct was a proximatecause of plaintiff's injury are questions of fact forthe jury. Borowski, 60 Ill. 2d at 423, 328 N.E.2d301.It is improper for a trial court to enter a j.n.o.v.when there is a substantial factual dispute in thecase, or when it is necessary to evaluateconflicting evidence in order to determine theoutcome of the case. (Connelly, 184 Ill. App. 3d at385, 132 Ill. Dec. 630, 540 N.E.2d 370.) Thissame standard is used by the reviewing court indetermining whether the trial court applied thestandard properly. (Connelly, 184 Ill. App. 3d at386, 132 Ill. Dec. 630, 540 N.E.2d 370.)Accordingly, we will not enter a j.n.o.v. in amedical malpractice action when the jury hasweighed conflicting expert testimony anddetermined that the essential elements of amedical malpractice case have not beensufficiently proved.In order to prevail on this claim, plaintiff mustshow that the evidence overwhelmingly indicatesDr. Haydary breached his standard of care andcaused injury to Patrice. The malpractice allegedhere was Dr. Haydary's failure to diagnose andtreat the cerebral edema (brain swelling), due tohyponatremia, that caused Patrice's death.Experts for the plaintiff testified that thestandard of care in this instance demanded that Dr.Haydary: (1) be aware hyponatremia is a knownside effect of Pitocin; (2) proceed to the hospitalupon learning of Patrice's condition from thenurses attending Patrice and from Dr. Robin; (3)recognize the possibility of hyponatremia in hisdiagnosis; (4) treat Patrice for hyponatremia; (5)properly administer Pitocin and not order it for toolong of a duration; and (6) evaluate Patrice'ssodium level on an emergency basis.We determine that, when viewed in the aspectmost favorable to defendant, the defendant's casegives rise to a substantial factual dispute withrespect to plaintiff's assertion of Dr. Haydary'sduty and his compliance with that duty. Plaintiffasserts that Dr. Haydary should have known whatwas wrong with Patrice and he should have treatedher for it. However, there was no generalagreement between the experts as to how Patriceshould have been treated. We distinguish the factsof the case at bar from those in Carman v. Dippold(1978), 63 Ill. App. 3d 419, 427, 20 Ill. Dec. 297,379 N.E.2d 1365, where the medical experts werein total accord as to the proper standard of medicalcare to be followed in the context of the facts. InCarman, the court held that when all the expertsare in agreement on the proper standard of care,the Pedrick standard was met, a j.n.o.v. wasproper, and the defendant/doctor could be heldliable for damage resulting from his actions whichdid not conform to the undisputed standard ofcare. Carman, 63 Ill. App. 3d at 428, 20 Ill. Dec.297, 379 N.E.2d 1365.The deciding issue in this case is whether Dr.Haydary's conduct fell below the acceptedstandard of care by failing to diagnose and treatPatrice for hyponatremia. Plaintiff's attempt toestablish this standard of care failed, in part,because his counsel asked hypothetical questionsthat did not adequately address the adequacy ofDr. Haydary's diagnosis. Plaintiff's counsel'squestioning at trial evoked testimony to the effectKNIGHT V. HAYDARY

358 10. PROFESSIONAL NEGLIGENCEthat if a patient is found to have hyponatremia,then it should be treated. All the expertsunsurprisingly agreed on this point.However, the dispute involves what Dr.Haydary's duty compelled him to do givenPatrice's undiagnosed condition at that time, notwhether a doctor, in general, should treathyponatremia. The primary duty was to diagnose.It is only then that the adequacy of the treatmentcan be debated. If Dr. Haydary negligentlydiagnosed Patrice, then his treatment based on thatdiagnosis could be examined. Because medicine isa profession which involves the exercise ofindividual judgment within the framework ofestablished procedures, differences in opinion areconsistent with the exercise of due care. (Walski v.Tiesenga (1978), 72 Ill. 2d 249, 261, 21 Ill. Dec.201, 381 N.E.2d 279.) We find that Dr. Haydarypresented sufficient evidence to raise a factualissue that he acted with due care by exercising hisindividual judgment in diagnosing Patrice'sproblem and treating her accordingly.The defendant provided expert testimonyexpressing opinions that Dr. Haydary carried outhis responsibilities as a physician in a normal andacceptable manner and that he acted within thestandard of care. One expert provided an opinionthat it is a perfectly normal type of practice for agynecologist to administer Pitocin to a womanprior to and following a D&C. The expertexpressed an opinion that the dosage of PitocinPatrice received over a 42-hour period was aminimal amount. He also expressed an opinionthat Dr. Haydary met his obligations with regardto taking care of Patrice on the morning after theD&C procedure had been performed.The expert further offered an opinion thatPatrice's symptoms of nausea, vomiting, andheadache could have been due to a mild viralinfection, a gastroenteritis, a bowel problem, and,even more likely, to the lingering effects ofcoming out of the anesthesia she received. Shealso could have been responding negatively to theDemerol she received. In addition, Patrice had along history of migraine headaches which, it wastestified, are also associated with nausea andvomiting. The expert testified that there wereprobably over 100 different conditions that couldbe associated with the headache, nausea, andvomiting that Patrice was experiencing. He saidthat of these diagnoses, he would put waterintoxication (hyponatremia) at the very bottom ofthe list. Defendants' expert testified that based onthe symptoms Patrice was experiencing at 11 a.m.on July 20, there was no need to perform anelectrolyte test on Patrice. The expert expressedthe opinion that Dr. Haydary did not violate hisstandard of care by calling for an internist to seePatrice, particularly in light of the fact that Dr.Haydary had just visited with her.The expert also opined that putting Patrice ona general diet after the operation was an effectiveway to replace the electrolytes that were no longerbeing administered through the Ringer's solution,which was discontinued on July 19. Furthermore,there was testimony that Patrice received Pitocinin connection with an earlier pregnancy and thatshe suffered no ill effects from it.Both Dr. Haydary and Dr. Robin orderedCBCs on July 20. Dr. Haydary's CBC wasperformed at approximately 1 p.m., and Dr.Robin's at about 4 or 5 p.m. Defendant's expertpointed out that the white blood cell count went upconsiderably from the first CBC to the second. Heindicated that he would expect the white cell countto be diluted along with the red cell count hadhemodilution taken place. In addition, the plaintiffbrings out testimony that the absence of certainelements of the blood could indicate the presenceof hyponatremia. However, experts for the defensepointed out that such figures could also reflect theloss of blood Patrice experienced both before,during and after her operation.Defendants' experts further testified that Dr.Haydary applied the knowledge and used the skilland the care ordinarily used by a reasonably wellqualifiedobstetrician/gynecologist when Dr.Haydary sought the aid of an internist to evaluatePatrice when she developed her peculiarsymptoms. The expert further testified about thepossibility of Patrice's symptoms as beingindicative of post-partum depression associatedwith pregnancy, and, thus, potentially apsychological problem.We find that this evidence presented by thedefense was sufficient to create a substantialquestion of fact concerning the elements of Dr.Haydary's standard of care and how his actionsshould have conformed to that standard. Viewingthis dispute in the aspect most favorable todefendant, we cannot say that the evidenceoverwhelmingly favors plaintiff. Therefore, wehold that it was appropriate for the trial court todeny plaintiff's motion for a j.n.o.v.* * *KNIGHT V. HAYDARY

§ A. MEDICAL MALPRACTICE 359Affirmed.WOODWARD and INGLIS, JJ., concur.Questions and Notes1. RESTATEMENT (2D), TORTS, § 299A,comment f, provides: "Where there are differentschools of thought in a profession, or differentmethods are followed by different groups engagedin a trade, the actor is to be judged by theprofessional standards of the group to which hebelongs. The law cannot undertake to decidetechnical questions of proper practice over whichexperts reasonably disagree, or to declare thatthose who do not accept particular controversialdoctrines are necessarily negligent in failing to doso. There may be, however, minimumrequirements of skill applicable to all persons, ofwhatever school of thought, who engage in anyprofession or trade." Based on this comment, bywhat standard should a chiropractor be judged ifhis treatment is unsuccessful, and if his treatmentdiffers significantly from that of an orthopedicsurgeon?2. At one time the plaintiff had to produce anexpert familiar with the practice of medicine in thelocality where the alleged malpractice occurred.This severely restricted the list of eligiblewitnesses to ones likely to be disinclined to testifynegatively about a colleague. Most jurisdictionshave moved to a standard that requires the plaintiffto supply an expert familiar with the practice ofthat type of medicine in the state where the casearose. (This is the standard adopted in RCW7.70.040, infra.) While this is the standard appliedfor general practitioners, some jurisdictions nowapply a standard of care for specialists that isnationwide in scope. This reflects both the morelimited number of qualified witnesses and therecognition that the practice of medical specialtiesdoes not vary significantly from state to state.2. Informed ConsentWACHTER v. UNITED STATES877 F.2d 257 (4th Cir. 1989)ERVIN, Chief JudgeJean M. Wachter appeals from an ordergranting defendant, the United States, summaryjudgment in Wachter's Federal Tort Claims Act("FTCA"), 28 U.S.C.A. § 2671 et seq., suit formedical malpractice. The district court found noevidence creating genuine issues that harm hadaccrued to Wachter from the misrepresentationsand failures to disclose that she alleged. We agree,and affirm.IAWachter, then fifty-five years old, entered theBethesda Naval Hospital ("Bethesda") for doublecoronary artery bypass surgery on March 1, 1983.Wachter's attending surgeon during thishospitalization was Commander ReginaldPeniston. Commander Edward L. Woods, Jr., aresident in thoracic surgery, performed Wachter'sMarch 4, 1983, operation under Peniston's directsupervision. Woods used segments of saphenousveins removed from Wachter's leg to bypassoccluded portions of the native coronary arteries.Prior to the operation, Woods had apprisedWachter of what the saphenous vein graftprocedure ("SVG") involved, what alternativeprocedures existed, the possible complications andsequelae of SVG 56 and that the decision whetherto proceed was ultimately hers. Wachter indicatedthat she understood what Woods had said andsigned an SVG consent form.By July, 1983, it had become clear thatWachter's SVG had failed. Wachter's symptoms,and the results of a cardiac catheterization,revealed that the grafted veins were betweenseventy and ninety percent occluded. Bethesdasurgeons recommended a second double bypassprocedure.Wachter had begun reading about the heartand bypass surgery while hospitalized after theMarch operation. After her doctors counseled asecond procedure, and with her husband's56Woods specifically indicated the possibilities of postsurgicalhemorrhage, myocardial infarction, stroke, death,infection, and occlusion of the grafted veins.KNIGHT V. HAYDARY

360 10. PROFESSIONAL NEGLIGENCEassistance, Wachter began a concerted campaignof self-education. 57 After investigating alternativetechniques and facilities, Wachter satisfied herselfthat entering Bethesda for a second bypass was heronly alternative.It is on what Bethesda surgeons told her whenshe submitted herself for the second procedurethat Wachter's claims center. Wachter's primarysurgeon for the August 1, 1983, operation was Dr.Donal M. Billig. Billig was then Bethesda's chiefof cardiothoracic surgery.Since Wachter's second SVG, the Navy hascashiered Billig based on a number ofrevelations. 58 One of Wachter's complaints is thatshe was unable to give her informed consent to thesecond SVG because Bethesda withheld word ofBillig's shortcomings.Wachter first met Billig in July, 1983, whenBillig delivered the results of Wachter's cardiaccatheterization and recommended an immediatesecond SVG. Wachter, having reviewed otherfacilities and procedures, returned to Bethesdalater that month. Wachter was still uncertainwhether to accept Billig as her primary surgeon,and proceeded to interview one of Billig'scolleagues, Dr. George W. Haggerson, 59 about57Despite her doctor's advice that she remainhospitalized for a prompt second SVG following hercardiac catheterization, Wachter insisted that she bedischarged to plumb her options. "This time," Wachterexplained in her deposition, "I wanted to get smart."58While this case only incidentally involves Billig'srelationship with the Navy and patients other thanWachter, we digress to summarize what the record revealsabout an imbroglio that has achieved considerablenotoriety. The report of the Navy's Formal Board ofInvestigation of the Billig affair records a story that, whilemost disturbing, suggests that Wachter was among thelucky fraction of patients not hurt by Billig's shortcomings.The report reveals that at least two Navy officersrecommended that the Navy hire Billig as a surgeon whilewithholding or softpedaling information that two civilianhealth centers had terminated Billig's privileges because ofincompetence and lack of diligence and that the Air Forcehad found Billig unqualified for service because of reducedvision in his right eye. The report found Billig'scardiothoracic surgery mortality rate at Bethesda"unacceptably high", and presented a number of historiesof Bethesda patients who had died from what othersurgeons opined was Billig's culpable negligence. A Navycourt-martial subsequently found Billig guilty of, amongother things, dereliction of duty.59Haggerson, with Dr. Geoffrey M. Graeber, Director ofBethesda's and Billig's record on second SVGs.There can be little doubt that Wachter'squestions to Haggerson were designed to elicitinformation about Billig rather than about SVG oralternative procedures. 60 Haggerson recitedmortality rates for Bethesda and for Billig thatapparently did not alarm Wachter. Wachter statedthat Haggerson finished by assuring her that inBillig she "was getting one of the finest doctors inthe country ... and it was rather senseless ... to goto outside doctors when [she] had the best righthere." There is no evidence that Haggerson thenknew anything that should have persuaded himthat his statements about Billig were untrue.The second root of Wachter's grievance, afterher conviction that she received harmfulmisinformation about Billig, is her belief thatBethesda should have told her about an alternativeto SVG, the internal mammary artery bypassprocedure (IMA). 61 IMA uses chest rather than legthe Division of Surgery at Washington, D.C.'s Walter ReedArmy Institute of Research, and a fourth surgeon, wouldassist Billig at Wachter's August 1 operation.60Wachter does not allege that she received insufficientor incorrect reports about her SVG operations. Wachter didnot discuss the SVG with Haggerson because, as shestated, "they [i.e. Bethesda] knew I knew" the particularsfrom her March, 1983, briefing and her independentinvestigation. Haggerson related that the second SVGwould use veins from the leg not used in the first surgeryand that a second SVG imported a higher risk ofcomplications, including death, than had the first surgery.Wachter stated that she had gotten information on"probably three" surgeons other than Billig before enteringBethesda in late July. On the eves of the March and AugustSVGs, Wachter signed identical consent forms. Among theform's acknowledgments is that the "possibility ofcomplications [has] been fully explained to [the signatory,who] acknowledge[s] that no guarantees have been madeto me concerning the results of the operation orprocedure...."61Wachter's memorandum in opposition to the UnitedStates' motion for summary judgment also argued thatBethesda should have told Wachter of a third alternative,that of angioplasty. Angioplasty is a procedure, lessintrusive than SVG or IMA, in which a surgeon maneuverssmall balloons into the occluded portions of the coronaryblood vessels. When inflated, the balloons compress theoccluding material against the walls of the vessels,allowing for improved blood flow and eliminating the needfor bypass grafts. Wachter's deposition makes clear thatshe was familiar with the alternative of angioplastythrough her own research, and that she had elected not toWACHTER V. UNITED STATES

§ A. MEDICAL MALPRACTICE 361vessels as the graft stock for a coronary bypass.Dr. Robert D. Brickman, whose affidavitsWachter tendered in opposition to the UnitedStates' motion for summary judgment, opined thatBillig should have offered Wachter the option ofan IMA. Brickman stated that IMA, "although notcommonly used throughout the United States inJuly, 1983, [was] a preferable alternative inselected patients." While Brickman admitted thatthe question remained unsettled until well afterWachter's second SVG, he opined that IMA couldhave had a higher chance of success than a secondSVG in a patient like Wachter. Brickman'sstatements make plain that the availability as wellas the advisability of IMA for Wachter wasproblematic in 1983.Brickman believed that "[p]robably 20percent" of U.S. hospitals offered IMA in 1983; itis undisputed that Bethesda was not amongthem. 62 In 1983, though, only one facility hadcompared the success rates of IMA and SVG forpatients undergoing a second bypass. Brickmanwas "not sure of" the results of that study. As toBillig's performance of Wachter's second SVG,Brickman had no opinion whether Billig "deviatedfrom the acceptable standard in the manner andtechnique employed in the performance of thebypass grafts. 63BWachter, with her husband, Robert,commenced this action on August 6, 1987. TheWachters sought $3,000,000.00 in damages for thepursue the alternative, which Bethesda did not then offer,before entering Bethesda for her second SVG. There is,therefore, no doubt that Bethesda's omission of theangioplasty alternative did not affect Wachter's ability togive informed consent to an SVG.62Brickman cited the Norfolk [Va.] General Hospital asa facility near Bethesda that offered IMA in July, 1983.Brickman also stated, however, that of "hundreds" ofUnited States medical institutions, "probably about four orfive" would have urged Wachter to elect IMA in 1983.63Brickman candidly admitted that "[t]here's no waythat I could comment on [Wachter's] case ... because I wasnot present in the operating room and, therefore, did notobserve what actually took place." Brickman also testifiedthat nothing he had read concerning the second SVG hadled him to suspect surgical error. Similarly, Brickmanstated at his deposition that he could not conclude thatWachter has been misinformed or underinformed of therisks attending a second SVG."failure of Jean Wachter's second SVG. The secondset of vein grafts had, like the first, becomeoccluded and unable to transfer blood at a ratesufficient to alleviate Wachter's preoperativesymptoms.Wachter's complaint presented four theories ofrecovery. The first count generally alleged thatBethesda failed properly to obtain Wachter'sinformed consent. The second count chargedvarious acts of medical negligence by Bethesdapersonnel. Counts three and four alleged thatBethesda negligently hired, supervised, andcredentialed Billig.In response to the United States' June 3, 1988,motions for summary judgment and for dismissalfor lack of subject matter jurisdiction under theFTCA, the Wachters moved voluntarily to dismissthe last three counts of the complaint and so muchof the first count as bore on the first SVG. Thedistrict court granted both parties' motions,dismissing with prejudice the bulk of Wachter'scomplaint and granting the United States summaryjudgment on Wachter's informed consent objectionto the second SVG. We do not understand Wachterto dispute the district court's construction of theapplicable law of informed consent. Our attentionis accordingly directed only toward the question ofwhether any genuine issues exist that should haveprecluded summary judgment.IIMaryland law supplies the rules of decisionon informed consent in this action. 28 U.S.C. §1346(b). Sard v. Hardy, 379 A.2d 1014 (Md.1977), is Maryland's principal elaboration of thedoctrine of informed consent. The doctrine"imposes on a physician ... the duty to explain theprocedure to the patient and to warn [her] of anymaterial risks or dangers inherent in or collateralto the therapy, so as to enable [her] to make anintelligent and informed choice about whether ornot to undergo such treatment." Id. at 1020.(Citations omitted). 64 The duty to disclosespecifically requires a physician "to reveal ... thenature of the ailment, the nature of the proposedtreatment, the probability of success of thecontemplated therapy and its alternatives, and therisk of unfortunate consequences associated with64We assume what the parties have not elected toquarrel over directly, that Bethesda, rather than Haggersonalone, stood as Wachter's "physician" for purposes of ouranalysis of the sufficiency of disclosures concerning Billig.WACHTER V. UNITED STATES

362 10. PROFESSIONAL NEGLIGENCEsuch treatment." Id. (Citations omitted). As towhat data are significant enough to warrantdisclosure, Sard held the measure to be that ofmateriality, of whether a reasonable person in thepatient's position would consider the datasignificant to the decision whether to submit to aparticular treatment or procedure. Id. at 1022.In keeping with the tort character of aninformed consent action, Wachter is bound toshow that Bethesda's breach of its duty ofinformed consent, if it occurred, caused her harm.Lipscomb v. Memorial Hosp., 733 F.2d 332, 338(4th Cir. 1984) (applying Maryland law).Lipscomb interpreted Sard to articulate threeelements of a prima facie case of medicalmalpractice by failure to obtain informed consent.Id. The elements are that: (1) a material,undisclosed risk existed; (2) the risk occurred; and(3) injury flowed from the occurrence. 733 F.2d at338.AWe read Sard to leave at issue whetherrevelations of information about one's physicianare within the scope of the duty to disclose asMaryland has chosen to define it. We conclude,however, following the district court, that theevidence speaks with one voice that the failure ofWachter's second SVG does not trace to thecompetence of Billig and that for another surgeonto have performed the second SVG would nothave increased the procedure's likelihood ofsuccess. We refer to Brickman's affidavit anddeposition and to Graeber's affidavits as the onlylode of information about Billig's performance asit bears on this case. Brickman was forthrightabout his inability to critique Billig's conduct,even though Brickman had reviewed evidence ofWachter's condition after the second SVG. Bycontrast, Graeber, who had assisted Billig in theAugust, 1983, surgery, stated that there had beenno "notable intraoperative complications" and thatthe second set of grafts had failed "for reasons notapparently related to the conduct of the [secondSVG]." 65 We therefore conclude, following Sardand Lipscomb, that the district court correctlygranted summary judgment in favor of the UnitedStates on Wachter's claim insofar as it bears onBillig's competence.BThe district court granted the United Statessummary judgment on Wachter's claim that sheshould have been told of the IMA alternativebased on its conclusions that IMA was not, in1983, a "medically significant" alternative to SVGand that no credible evidence suggested that IMAwould have produced a better result. We agreewith the district court that Maryland did notrequire Bethesda to educate Wachter about everyconceivable alternative to a second SVG. Thisconclusion is implicit in Sard's definition ofmaterial information, because a reasonable personwould not consider information aboutexperimental or arcane "alternatives" as significantto her decision whether to submit to arecommended procedure. Lipscomb, 733 F.2d at838; Sard, 379 A.2d at 1022. Rather thanexpressly ratify the district court's assessment ofthe evidence of IMA's significance in 1983,however, we rest our affirmance on our perceptionthat the evidence does not suggest that informationon IMA would have prompted Wachter to elect theprocedure or that the procedure would haveaverted the health problems Wachter nowexperiences.The only evidence in Wachter's favor on thispoint is Brickman's affidavit statement thatWachter "was an ideal candidate for an IMAgraft." We believe the district court properlydiscredited this statement as a "bare conclusion."The affidavit does not explain the conclusion. Amedical journal article, an excerpt from whichaccompanies Brickman's affidavit in the recordbefore us, reveals considerable disagreementamong surgeons on the relative merits of SVG andIMA. 66 Brickman's deposition also shows that in1983, only one clinic in the United States hadinformation about the benefits of IMA for a patientwhose earlier SVG had failed. Brickman was notsure what results that clinic had witnessed inpatients such as Wachter. Brickman remarked that"[t]here's all kinds of stuff in literature subsequent65Graeber observed that Wachter's outcome "is oftenassociated with short stature female patients who are obeseor have abnormally high serum cholesterol levels" butadmitted that he knew "of no definitive means ofestablishing the precise pathogenesis" of the unfortunateresult.66The article, entitled Comparison of Saphenous Veinand IMA Grafts, appeared in the September, 1980 issue ofthe Journal of Thoracic and Cardiovascular Surgery, andappears to be a transcription of a surgeons' colloquium onexperiences with the two procedures.WACHTER V. UNITED STATES

§ A. MEDICAL MALPRACTICE 363to [that clinic's pioneering turn]", but referredspecifically only to the 1980 article attached to hisaffidavit and to another paper, apparently theproduct of the same physicians as contributed tothe first, that is not in the record. We do notbelieve Brickman's evidence suggests that Wachterwould have done anything differently had shelearned everything known about IMA in 1983.Even if we assume that Wachter would havesought and been approved for IMA, though, theevidence does not suggest that Wachter wouldhave benefited from the procedure. The evidencetendered by the United States speaks with onevoice that Wachter's current health problems donot stem from the sort of bypass procedure used.Graeber noted that "in [Wachter's] case SVGgrafting of at least one artery was required, even ifIMA grafting was attempted, because of specificperfusion needs." Billig recalled that he did notdiscuss IMA with Wachter because IMA was "notknown to produce a superior result, and required alonger operation ... [Wachter] ... was short andvery heavy [and] using an IMA graft would havebeen very difficult." Like Graeber, Billig averredthat Wachter would have had to have at least onesaphenous vein graft in the second procedure andstated "it was not advisable to use both IMA and[SVG] because it required a more tediousdissection ... and might have required more bloodtransfusions." This evidence that IMA would nothave benefited Wachter, and the infirmity ofBrickman's conclusion that Wachter mightreasonably have sought IMA in 1983, persuades usthat the district court correctly ruled for the UnitedStates on Wachter's IMA claim.IIIFor the foregoing reasons, we believe thedistrict court was correct to order summaryjudgment in favor of the United States.Affirmed.MURNAGHAN, Circuit Judge, concurring inpart and dissenting in part:I agree with the majority that Wachterproduced no evidence that Dr. Billig's allegedsurgical incompetence contributed to the failure ofher saphenous vein grafts (SVG). The districtcourt therefore properly granted summaryjudgment in favor of the United States onWachter's claim insofar as it focused on the failureof Bethesda personnel to disclose Billig'spurported surgical shortcomings.However, the district court erred in grantingsummary judgment against Wachter insofar as shebased her informed consent claim on the failure ofBillig and other physicians at Bethesda to adviseher of the internal mammary artery (IMA)procedure as an alternative to an SVG bypass.Wachter has raised genuine issues of material factas to the three elements necessary to sustain aninformed consent claim under Maryland law: (1)whether the physicians at Bethesda had a duty todisclose the existence of the IMA alternative aswell as its risks and prospects for success, (2)whether a causal link existed between Wachter'sconsent to the SVG bypass and the physicians'failure to disclose information about IMA and (3)whether Wachter suffered any harm as a result ofundergoing the SVG procedure rather than theIMA alternative.In upholding the grant of summary judgment,the majority has overlooked crucial evidencefavorable to Wachter and has usurped the functionof the fact finder by resolving disputed issues ofmaterial fact. For those reasons, I dissent from themajority decision on the IMA issue.I. Duty to DiscloseI begin with an issue that the majoritydeclined to address, namely, whether thephysicians at Bethesda had a duty to informWachter of the IMA alternative to the SVG bypassprocedure. Maryland law imposes on physicians aduty to disclose the existence of alternatives toproposed surgery or treatment, as well as the risksand benefits adhering to each option, if suchinformation would be "material to the intelligentdecision of a reasonably prudent patient." Sard v.Hardy, 281 Md. 432, 444, 379 A.2d 1014, 1022(1977).The evidence here would allow a trier of factto find that a reasonable patient in 1983 wouldhave considered information about IMA materialto her decision to undergo bypass surgery. 1 Dr.Brickman, Wachter's expert, testified in depositionthat medical evidence in 1983 demonstrated thatIMA grafts had superior long-term patency rates(in other words, remained non-occluded or nonobstructedlonger) than SVG grafts. Brickman alsotestified that he and other physicians in 1983found IMA grafts especially preferable to the SVGoption for women, such as Wachter, who hadpreviously experienced blockage of saphenousvein grafts.1The case turns on the state of medical knowledge in1983, the year of Wachter's surgery.WACHTER V. UNITED STATES

364 10. PROFESSIONAL NEGLIGENCEThe IMA alternative had been used in bypasssurgery since at least 1968, and Brickman pointedto medical studies from as early as 1980 indicatingthat IMA grafts remained patent longer than thesaphenous vein grafts. The results of those studieswere contained in a 1980 medical journal articlewhich Wachter submitted in support of Brickman'saffidavit. In that article, at least one surgeoncharacterized IMA patency rates as "vastlysuperior" to those for saphenous vein grafts.Comparison of Saphenous Vein and IMA Grafts,Journal of Thoracic & Cardiovascular Surgery,Sept. 1980, at 341 [hereinafter "Comparison"].To be sure, many physicians in 1983apparently disagreed with Brickman over therelative merits of the IMA and SVG options.However, evidence of such disagreement in noway compels summary judgment in favor of theUnited States. A reasonable patient may findinformation about an alternative medicalprocedure material to her decisionmaking eventhough the medical community is divided over itsrelative benefits as compared to other surgicaloptions. The medical community need not reach aconsensus on the superiority of a particularsurgical alternative before a physician has a dutyunder Maryland law to inform the patient of thatoption. The doctrine of informed consent inMaryland rests on the notion that the patient, nother physician, has the ultimate right to decidewhat is best for her own body: Thus, theappropriate test is not what the physician in theexercise of his medical judgment thinks a patientshould know before acquiescing in a proposedcourse of treatment; rather, the focus is on whatdata the patient requires in order to make anintelligent decision. Sard, 281 Md. at 442, 379A.2d at 1021. The patient cannot exercise her"fundamental right of physical selfdetermination,"id., when she is kept in the darkabout a medical alternative favored by asignificant number of physicians.Wachter's evidence at a minimum raises afactual question as to the degree of acceptance theIMA option enjoyed in the medical community in1983. It is impossible to quantify, as a matter oflaw, the percentage of the medical community thatmust accept or favor a given alternative before thatoption becomes "material". That percentage willvary depending on the circumstances of each case.In some cases, a reasonably prudent patient mightfind a medical alternative material to her decisioneven though only a minority of the medicalcommunity favored the procedure. To require aclear majority of the medical community to prefera procedure before it could be considered amaterial option would fly in the face of thedecision of the Maryland Court of Appeals inSard, which expressly refused to allow themedical community's view of the significance of aprocedure to define the scope of the duty todisclose. See id.Of course, certain procedures may be soexperimental or accepted by such a small fringe ofthe medical community that, as a matter of law,information about them cannot be considered"material" to a reasonably prudent patient'sdecisionmaking. However, Wachter has producedevidence that as early as 1980 many members ofthe medical community preferred the IMA optionto the SVG for most bypass grafts. Moreover,Brickman's testimony and the medical journalarticle submitted in support of his affidavit suggestthat even some of the physicians who preferredSVG over IMA for first-time recipients of bypassgrafts favored using IMA for patients who hadpreviously received SVG grafts that had failed. Atthe very least, the evidence raises a question forthe fact finder as to whether a reasonable patientin Wachter's position in 1983 would haveconsidered IMA a significant medical option.That only about 20% of the hospitals in theUnited States offered the IMA procedure in 1983does not render irrelevant a belief that areasonably prudent patient could have consideredinformation about IMA material to her decision toundergo bypass surgery. 2 A patient who faces aserious health risk may wish to know aboutimportant medical procedures, particularly thosethat might prove highly successful, even thoughonly a few hospitals offer such procedures. At anyrate, 20% is a significant proportion of thehospitals in the country. That one-fifth of themedical facilities offered IMA strongly suggeststhat the procedure was neither purely experimentalnor isolated to a small fringe of the medicalcommunity.I find unacceptable the district court's2It is unclear from Brickman's deposition whether hemeant that 20% of all hospitals in the United States offeredthe IMA option in 1983, or instead, that 20% of thenation's hospitals that performed bypass surgery providedthe IMA alternative. Whichever Brickman meant, histestimony suggests that IMA was available in 1983 at asignificant number of medical centers in the United States.WACHTER V. UNITED STATES

§ A. MEDICAL MALPRACTICE 365argument that, as a matter of law, the choicebetween SVG and IMA grafts represented a mere"choice of tactical surgical approaches" akin to asurgeon's selection of which sutures to use or thelocation of an incision, and that Billig and hiscolleagues therefore had no duty to informWachter about the IMA option. Wachter v. UnitedStates, 689 F. Supp. 1420, 1424 (D. Md. 1988). 3To be sure, some mechanical or technical choicesin surgery will be so immaterial to a patient'sdecisionmaking that, as a matter of law, thesurgeon need not discuss them with the patient.The evidence here, however, would allow a trier offact to find that the IMA option was more than aninsignificant tactical choice, but instead was animportant medical alternative which a reasonablepatient would find material to her decision tosubmit to bypass surgery. That the medicalcommunity actively debated the relative benefitsof IMA and SVG well before 1983 suggests thatmost patients in Wachter's position would havewanted to know about the IMA option beforedeciding to have a second bypass operation.The district court misconstrued Maryland lawwhen it suggested that the doctrine of informedconsent has no applicability whatsoever when thechoice presented is between various techniques ofaccomplishing a type of operation (e.g., bypasssurgery), instead of between surgery and a nonsurgicaltreatment. See Wachter, 689 F. Supp. at1424. Sard, the premier case on informed consentin Maryland, clearly demonstrates that a physicianmay have a duty under some circumstances to3Although the recent decision of the Maryland Courtof Special Appeals in Nash v. Raneri, 77 Md. App. 402,550 A.2d 717 (1988), quoted extensively from the Wachteropinion below, nothing in Nash suggests that the Court ofSpecial Appeals intended to endorse the district court'sanalysis of the evidence or its decision to grant summaryjudgment. At most, Nash illustrates that Maryland lawdoes not require a physician to discuss every tacticaldecision in surgery with the patient. I fully concur in thatreading of Maryland law. What I find objectionable is thedistrict court's decision to deprive the fact finder of theopportunity to decide whether the IMA was aninsignificant tactical surgical choice or, as Wachter asserts,an important medical option that she would have foundmaterial to her decisionmaking. Nash certainly did notendorse the district court's depriving the fact finder of theopportunity to assess the materiality of the IMA procedure.In Nash, the trial court had allowed the jury to decide theinformed consent issue, and the Court of Special Appealsagreed that the matter was properly left to the jury. See 77Md. App. at 408-10, 550 A.2d at 720-21.inform the patient of the various methods ofperforming a given operation. That case held, interalia, that a jury could reasonably conclude that aphysician had a duty to disclose to a patient thevarious methods of accomplishing femalesterilization through tubal ligation. Sard, 281 Md.at 437, 445-46, 448, 379 A.2d at 1018, 1023,1024. The physician in Sard had informed thepatient of birth control methods other than tuballigation, but had failed to discuss with her themost common methods of performing tuballigation, even though success rates among theoptions varied considerably. Id. at 437, 379 A.2dat 1018. The facts of Sard belie the district court'ssuggestion that once a physician discloses thealternatives to surgery, he or she never has afurther duty to disclose the various methods ofaccomplishing the operation.In sum, the evidence in the record raises agenuine issue as to whether a reasonably prudentpatient would have considered information aboutIMA material to her decision to undergo bypasssurgery. Were the IMA information material,Maryland law would have required Billig and hiscolleagues to discuss it with Wachter beforeperforming surgery.II. CausationI disagree with the majority's assertion thatWachter has presented no evidence that she wouldhave chosen the IMA procedure had she receivedinformation about it prior to her surgery on August1, 1983. The majority has ignored crucial evidencein Wachter's favor in reaching its conclusion.Maryland has adopted an objective standardfor determining causation in informed consentcases. No causal link exists between the plaintiff'sinjury and the physician's violation of the duty todisclose medial alternatives unless a reasonableperson in the patient's position would have made adifferent choice had she been fully informed. Sard,281 Md. at 450, 379 A.2d at 1025. The evidence inthe record would support a finding that areasonable person in Wachter's shoes would havechosen the IMA procedure over the SVG if givena choice.The majority and the district court improperlydismissed as "bare conclusion" Brickman'sassertion that Wachter "was an ideal candidate foran IMA graft." Contrary to the majority'sassertion, the record contains abundant support forBrickman's conclusion. Brickman testified that theIMA grafts had a significantly greater patency ratethan the SVG. That opinion was echoed by aWACHTER V. UNITED STATES

366 10. PROFESSIONAL NEGLIGENCEnumber of physicians who sang the praises of theIMA option in a medical journal article submittedin support of Brickman's affidavit. Most notably,Brickman emphasized that IMA was especiallypreferable to SVG for patients, particularlyfemales, who had earlier already experiencedfailure with saphenous vein grafts.In concluding that Wachter would not havechosen IMA if given a chance, the majority placestoo much emphasis on the lack of consensus in themedical community in 1983 as to whether IMA orSVG was preferable for bypass grafts. Themajority misperceives the nature of the disputeover IMA. Brickman emphasized that the conflictin the medical literature over IMA focused on thepreferable approach for patients receiving bypassgrafts for the first time, not on the proper choicefor individuals, such as Wachter, who had alreadyexperienced failure of a saphenous vein graft. Themedical journal article submitted in support ofBrickman's affidavit suggests that some physicianswho preferred SVG to IMA grafts in first-timebypass operations would opt for IMA grafts thesecond time around in patients who hadexperienced SVG failure. For example, the articleprovides the following summary from Dr.Alexander S. Geha, a skeptic about claims of IMAsuperiority:I really do not see much of acontroversy. I do not think that, at present,the difference in results between thesetwo types of grafts is worth the effort ofdissecting the IMA and using it except inpatients who have had failure of aprevious vein graft or in whom arelatively high risk of occlusion of a veingraft into a small anterior coronary arterycan be anticipated. Comparison, at 339(emphasis added).Even assuming, arguendo, that the evidencehere would preclude a finding that a reasonablepatient would have chosen IMA grafts for firsttimebypass surgery, Wachter's evidence wouldallow a fact finder to infer that such a patientwould have opted for IMA in 1983 for a secondbypass that was necessitated by previous failure ofsaphenous vein grafts.To be sure, the government has presentedevidence that the IMA alternative would havemade the bypass operation more complicated andperhaps more dangerous than SVG surgery. A trierof fact could permissibly find, however, that areasonable person in Wachter's position wouldhave chosen to risk the added surgical hazards inexchange for the greater likelihood of long-termsuccess presented by the IMA alternative.III. InjuryWachter can succeed on her informed consentclaim only by showing that she suffered someinjury by receiving the saphenous vein graftsrather than the IMA option. Under thecircumstances presented here, Wachter need notprove that her bypass grafts would not haveoccluded had Billig performed the IMA procedurerather that the SVG. To require such a showingwhere the plaintiff has never received an IMAgraft would present a virtually insurmountablebarrier to her claim. Instead, Wachter need onlyshow that she would have enjoyed a better chanceof success with the IMA grafts than with theSVG. 4The evidence here would allow a fact finder toconclude that IMA grafts would have offered agreater likelihood of success for Wachter's secondbypass operation than the SVG option provided.Wachter produced evidence that IMA graftsprovided greater long-term patency thansaphenous vein grafts. Brickman, Wachter'sexpert, also testified that IMA grafts were aparticularly superior option for women who hadpreviously experienced failure with saphenousvein grafts.I find utterly unsupportable the majority'sassertion that the evidence "speaks with one voicethat Wachter's current health problems do not stemfrom the sort of bypass procedure used." MajorityOp. at 11. The majority apparently findsdispositive the government's assertion thatWachter's bypass surgery would have required atleast one saphenous vein graft, even if IMA wereused. Wachter's evidence contradicts thegovernment's allegation that her surgery could nothave been performed with IMA grafts alone. Theprincipal support for the government's contentionis Billig's affidavit, which states that "Wachter was4Perhaps the standard would be different had Wachterundergone a third bypass operation using IMA graftswhich subsequently occluded. Such failure of the IMAgrafts would present strong evidence that the grafts wouldalso have occluded had she received them in the secondoperation. However, I have seen no evidence in the recordthat Wachter had submitted to a third bypass operation atthe time the district court granted summary judgment.WACHTER V. UNITED STATES

§ A. MEDICAL MALPRACTICE 367having a double bypass (left anterior descendingand obtuse marginal grafts) and we could not useIMA for the obtuse marginal graft." AlthoughBrickman never contradicted Billig's assertion thatWachter needed a double bypass, his affidavit doesdispute Billig's claim that IMA could not be usedfor both grafts. Specifically, Brickman declared inhis affidavit that:The left internal mammary artery canbe used to bypass the left anteriordescending or the obtuse marginal branchof the circumflex artery. The right internalmammary can be used to bypass either ofthe same two vessels. (Emphasis added).Even if Wachter's double bypass would haverequired at least one SVG, that fact would notcompel summary judgment in favor of the UnitedStates. The majority apparently assumes that hadWachter received both an SVG and IMA graft inthe August 1983 surgery, the single SVG wouldhave failed as it had after the first bypass surgery.Even were I to accept that assumption, I cannotagree with the majority's further implicitassumption that Wachter would have been nobetter off with the combination of a successfulIMA graft and an occluded SVG than with twooccluded saphenous vein grafts. I respectfullysubmit that we on the panel simply lack themedical expertise to engage in such speculation,especially in the absence of any supportingevidence in the record. The question is a factualone best left to the trier of fact which would havethe benefit of expert medical testimony.IV. ConclusionWachter has raised a genuine issue of materialfact as to each of the three elements - duty todisclose, causation and injury - she must prove tosucceed on her informed consent claim underMaryland law. I therefore dissent from themajority opinion insofar as it upholds the grant ofsummary judgment on the IMA issue.Questions and Notes1. In determining whether the patient gavetruly informed consent, the trier of fact mustdetermine whether the patient was informed ofmaterial risks and alternative treatment options.Particularly where the risks are remote or thealternatives novel, the question arises as to whodecides which risks are "material." What is agreedupon is that the standard is what would bereasonable. But jurisdictions differ on whether thestandard is set by the "reasonable physician" or bythe "reasonable patient." The two should be veryclose, but the standard of the reasonable patientmay suggest a greater willingness to recognizesubjective and idiosyncratic considerations uniqueto the patientCso long as those have beendisclosed to the physician. See Eccleston v. Chait,492 N.W.2d 860 (Neb. 1992); Scott v. Bradford,606 P.2d 554 (Okla. 1979); Reyes v. WyethLaboratories, 498 F.2d 1264 (5th Cir. 1974).2. Would it make sense to restructure medicalmalpractice law by switching from a system basedon tort to one based on contract? How would sucha system differ from the present one? See Epstein,Medical Malpractice: The Case for Contract, 1AM. B. FOUND. RES. J. 87 (1976).3. Medical malpractice law has been thesubject of significant statutory changes. For ageneral overview of the phenomenon, seeHubbard, The Physicians' Point of ViewConcerning Medical Malpractice: A SociologicalPerspective on the Symbolic Importance of "TortReform," 23 GA. L. REV. 295 (1989); Bovbjerg,Legislation on Medical Malpractice, 22 U.C.DAVIS L. REV. 499 (1989). Some statutoryreforms have been subjected to challenge based onarguments that such statutes deprive the patient ofconstitutional rights. Recall Fein v. PermanenteMedical Group, 175 Cal. Rptr. 177 (1981), supraChapter Four, § C.4. One statutory response to complaints aboutthe medical malpractice system has been thecreation of pre-litigation screening panels toidentify meritorious cases (and their opposite) atan early stage of litigation. The findings of thepanel (usually in the form of an opinion that thestandard of care was met or was not met) areusually admissible in any subsequent litigation.For a review of existing proposals and a modelWACHTER V. UNITED STATES

368 10. PROFESSIONAL NEGLIGENCEact, see Macchiaroli, Medical MalpracticeScreening Panels: Proposed Model Legislation toCure Judicial Ills, 58 GEO. WASH. L. REV. 181(1990).Another suggestion for improving relationsbetween doctors and patients is to expandparticipation by patients in the decisionmakingprocess; see Dobson, Achieving Better MedicalOutcomes and Reducing Malpractice LitigationThrough the Healthcare Consumer's Right toMake Decisions, 15 J. CONTEMP. L. 175 (1989).For a comparative analysis of British andAmerican approaches to medical malpractice, seeNote, Medical Malpractice Litigation: AComparative Analysis of United States and GreatBritain, 12 SUFFOLK TRANSNAT'L L.J. 577 (1989)(suggests that similarities in malpractice explosionhave produced or will produce similar pressuresfor reform). See also Neil Vidmar and Leigh AnneBrown, Tort Reform and the Medical LiabilityInsurance Crisis in Mississippi: Diagnosing theDisease and Prescribing a Remedy 22 MISS. C.L.REV. 9 (2002).5. Virginia and Florida have adopted"no-fault" plans for catastrophic obstetricalinjuries. See Note, Innovative No-Fault TortReform for an Endangered Specialty, 74 VA. L.REV. 1487 (1988).6. The liability of HMOs (health maintenanceorganizations) has been clouded by the argumentthat suits against HMOs are pre-empted byERISA. See Vicki Lawrence MacDougall, The"Shared Risk" of Potential Tort Liability of HealthMaintenance Organizations and the Defense ofERISA Preemption, 32 VAL. U. L. REV. 855(1998).§ B. Other Forms ofProfessional MalpracticeLegal Malpractice. One fast developing areaof professional negligence is legal malpractice.For a good overview of the state of legalmalpractice law, see Symposium, Mistakes, 15LITIGATION 7 (Winter 1989); Kellos v. Sawilowsky,254 Ga. 4, 325 S.E.2d 757 (1985). One of thesticky questions in legal malpractice cases isdeciding how far the lawyer's duty extends. Inmany cases the lawyer will commit malpractice inperforming services for client A, but the effects ofthe mistakes are borne by B. For example, iflawyer L negligently draws up a will that by whichtestator A intended to benefit descendant B, then Bmay want to sue L for malpractice. But L wasnever B's lawyer. Does the duty extend to nonclients?See Bohn v. Cody, 119 Wash.2d 357, 832P.2d 71 (1992).Accountant Malpractice. Accountants havealso been the target of professional malpracticesuits. One of the difficult issues in such cases isdeciding whether the accountant is liable not onlyto his client, but also to others who rely upon theaccountant's analysis of the financial health of thecompany. See Toro Co. v. Krouse, Kern & Co., 827F.2d 155 (7th Cir. 1987); Sliciano, NegligentAccounting and the Limits of Instrumental TortReform, 86 MICH. L. REV. 1929 (1988).Other Forms of Professional Malpractice.The list extends to real estate brokers, engineers,veterinarians (Ponder v. Angel Animal Hosp., 62S.W.2d 844 (Mo. App. 1988) [dog brought in forgrooming, castrated instead]), see King, TheStandard of Care for Veterinarians in MedicalMalpractice Cases, 58 TENN. L. REV. 1 (1990);etc. So far educators have escaped significantexposure for negligent educating; but a changemay be afoot. See McBride, EducationalMalpractice: Judicial Recognition of a LimitedDuty of Educators Toward Individual Students; AState Law Cause of Action for EducationalNegligence, 1990 ILL. L. REV. 475; Todd A.Demitchell and Terri A. Demitchell, Statutes andStandards: Has the Door to EducationalMalpractice Been Opened? 2003 BYU EDUC. &L.J. 485.There are even claims for clergy malpractice.See Note, Nalley v. Grace Community Church ofthe Valley (763 P.2d 948 (Cal.): Absolution forClergy Malpractice?, 1989 B.Y.U. L. REV. 913. Afrequent basis for lawsuits against clergy is thesexual exploitation of parishioners who rely uponthem for spiritual guidance. See, e.g., Destefano v.Grabrian, 763 P.2d 275 (Colo. 1988); Janna SatzNugent, A Higher Authority: the Viability of ThirdParty Tort Actions Against a Religious InstitutionGrounded on Sexual Misconduct by a Member ofthe Clergy, 30 FLA. ST. U. L. REV. 957 (2003).WACHTER V. UNITED STATES

Chapter 11Rescuers, Justifiable Reliance, and the Extension ofDuty to Remote PlaintiffsIntroductory Note. In the previous cases theplaintiff's relationship with the defendant usuallystarted out in a contractual relationship: byentering the defendant's premises, or buying thedefendant's product, or going to the defendant formedical care. In the following cases therelationship between the plaintiff and thedefendant is more difficult to characterize. Henceit is uncertain whether the defendant ever owedthe plaintiff any duty at all. One way tocharacterize these relationships is through theconcept of justifiable reliance: did the defendantbehave in such a way as to create a duty on hispart to protect the plaintiff from harm, even if thedefendant didn't create the problem in the firstplace?Most of the previous cases in this bookconcern situations where the defendant created theinitial risk: by driving too fast, or producing adefective product, or putting noxious fumes intothe air. The defendant is often saddled with therisk of such activity, in order to provide anincentive for him either to use an optimum level ofcare or to avoid the activity altogether. In the kindsof cases considered in this section the defendant isoften performing a valuable public service that wedon't want to discourage. Nonetheless, at times thedefendant is expected to use reasonable care, orelse pay in damages. The line is a difficult one todraw.BUCH v. AMORY MANUFACTURINGCO.44 A. 809 (N.H. 1898)* * *There is a wide difference, - a broad gulf, -both in reason and in law, between causing andpreventing an injury; between doing, bynegligence or otherwise, a wrong to one'sneighbor, and preventing him from injuringhimself; between protecting him against injury byanother, and guarding him from injury that mayaccrue to him from the condition of the premiseswhich he was unlawfully invaded. The duty to dono wrong is a legal duty. The duty to protectagainst wrong is, generally speaking, andexcepting certain intimate relations in the natureof a trust, a moral obligation only, not recognizedor enforced by law. Is a spectator liable if he seesan intelligent man or an unintelligent infantrunning into danger, and does not warn or forciblyrestrain him? What difference does it makewhether the danger is on another's land, or uponhis own, in case the man or infant is not there byhis express or implied invitation? If A sees an 8year old boy beginning to climb into his gardenover a wall stuck with spikes and does not warnhim or drive him off, is he liable in damages if theboy meets with injury from the spikes? 1 Hurl. &N. 777. I see my neighbor's two year old babe indangerous proximity to the machinery of hiswindmill in his yard, and easily might, but do not,rescue him. I am not liable in the damages to thechild for his injuries, nor, if the child is killed,punishable for manslaughter by the common lawor under the statute (Pub. St. c. 278, 8), becausethe child and I are strangers, and I am under nolegal duty to protect him. Now, suppose I see thesame child trespassing in my own yard, andmeddling in like manner with dangerousmachinery of my own windmill. What additionalobligation is cast upon me by reason of the child'strespass? The mere fact that the child is unable toBUCH V. AMORY MANUFACTURING CO.

370 11. RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFStake care of himself does not impose on me thelegal duty of protecting him in the one case morethan in the other. Upon what principle of law canan infant, by coming unlawfully upon mypremises, impose upon me the legal duty of aguardian? None has been suggested, and we knowof none.* * *Questions and Notes1. "Good Samaritan" statutes are frequentlymisunderstood. The typical statute provides that ifa person who renders aid voluntarily to someoneinjured in an automobile accident, he is not held tothe standard of reasonable care, but is only liablefor willful or wanton conduct. See, e.g., R.C.W.70.136.070. Such statutes do not create a duty tostop in the first place, but instead encourage thosewho do stop by assuring them that they will not besubject to tort liability if their skills are belowwhat the average person possesses.2. Vermont does have a statute that requires aperson to render aid if he can do so at no trouble tohimself. VT. STAT. ANN. ch. 23, § 519(a) ("Aperson who knows that another is exposed tograve physical harm shall, to the extent that thesame can be rendered without danger or peril tohimself or without interference with importantduties owed to others, give reasonable assistanceto the exposed person unless that assistance orcare is being provided by others.") Would youfavor adding that provision to the statutes in yourjurisdiction?TARASOFF v. REGENTS OFUNIVERSITY OF CALIFORNIA17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d334 (1976)TOBRINER, JusticeOn October 27, 1969, Prosenjit Poddar killedTatiana Tarasoff. 67 Plaintiffs, Tatiana's parents,allege that two months earlier Poddar confided hisintention to kill Tatiana to Dr. Lawrence Moore, apsychologist employed by the Cowell MemorialHospital at the University of California atBerkeley. They allege that on Moore's request, thecampus police briefly detained Poddar, butreleased him when he appeared rational. Theyfurther claim that Dr. Harvey Powelson, Moore'ssuperior, then directed that no further action betaken to detain Poddar. No one warned plaintiffsof Tatiana's peril.Concluding that these facts set forth causes ofaction against neither therapists and policemeninvolved, nor against the Regents of the Universityof California as their employer, the superior courtsustained defendants' demurrers to plaintiffs'second amended complaints without leave toamend. 68 This appeal ensued.67The criminal prosecution stemming from this crime isreported in People v. Poddar (1974) 10 Cal. 3d 750, 111Cal. Rptr. 910, 518 P.2d 342.68The therapist defendants include Dr. Moore, thePlaintiffs' complaints predicate liability ontwo grounds: defendants' failure to warn plaintiffsof the impending danger and their failure to bringabout Poddar's confinement pursuant to theLanterman-Petris-Short Act (Welf. & Inst. Code, §5000ff.) Defendants, in turn, assert that they owedno duty of reasonable care to Tatiana and that theyare immune from suit under the California TortClaims Act of 1963 (Gov. Code, § 810ff.).We shall explain that defendant therapistscannot escape liability merely because Tatianaherself was not their patient. When a therapistdetermines, or pursuant to the standards of hisprofession should determine, that his patientpresents a serious danger of violence to another,he incurs an obligation to use reasonable care toprotect the intended victim against such danger.The discharge of this duty may require thetherapist to take one or more of various steps,psychologist who examined Poddar and decided thatPoddar should be committed; Dr. Gold and Dr. Yandell,psychiatrists at Cowell Memorial Hospital who concurredin Moore's decision; and Dr. Powelson, chief of thedepartment of psychiatry who countermanded Moore'sdecision and directed that the staff take no action toconfine Poddar. The police defendants include OfficersAtkinson, Brownrigg and Halleran, who detained Poddarbriefly but released him; Chief Beall, who receivedMoore's letter recommending that Poddar be confined; andOfficer Teel, who, along with Officer Atkinson, receivedMoore's oral communication requesting detention ofPoddar.TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 371depending upon the nature of the case. Thus itmay call for him to warn the intended victim orothers likely to apprise the victim of the danger, tonotify the police, or to take whatever other stepsare reasonably necessary under the circumstances.* * *2. Plaintiffs can state a cause ofaction against defendant therapists fornegligent failure to protect Tatiana.The second cause of action can be amended toallege that Tatiana's death proximately resultedfrom defendants' negligent failure to warn Tatianaor others likely to apprise her of her danger.Plaintiffs contend that as amended, suchallegations of negligence and proximate causation,with resulting damages, establish a cause ofaction. Defendants, however, contend that in thecircumstances of the present case they owed noduty of care to Tatiana or her parents and that, inthe absence of such duty, they were free to act incareless disregard of Tatiana's life and safety.In analyzing this issue, we bear in mind thatlegal duties are not discoverable facts of nature,but merely conclusory expressions that, in cases ofa particular type, liability should be imposed fordamage done. As stated in Dillon v. Legg (1968)68 Cal. 2d 728, 734, 69 Cal. Rptr. 72, 76, 441 P.2d912, 916: "The assertion that liability must ... bedenied because defendant no `duty' to plaintiff`begs the essential question - whether theplaintiff's interests are entitled to legal protectionagainst the defendant's conduct.... [Duty] is notsacrosanct in itself, but only an expression of thesum total of those considerations of policy whichlead the law to say that the particular plaintiff isentitled 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.2d561, Justice Peters recognized that liability shouldbe imposed "for an injury occasioned to anotherby his want of ordinary care or skill" as expressedin section 1714 of the Civil Code. Thus, JusticePeters, quoting from Heaven v. Pender (1883) 11Q.B.D. 503, 509 stated: "whenever one person isby circumstances placed in such a position withregard to another ... that if he did not use ordinarycare and skill in his own conduct ... he wouldcause danger of injury to the person or property ofthe other, a duty arises to use ordinary care andskill to avoid such danger."We depart from "this fundamental principle"only upon the "balancing of a number ofconsiderations"; major ones "are the foreseeabilityof harm to the plaintiff, the degree of certainty thatthe plaintiff suffered injury, the closeness of theconnection between the defendant's conduct andthe injury suffered, the moral blame attached tothe defendant's conduct, the policy of preventingfuture harm, the extent of the burden to thedefendant and consequences to the community ofimposing a duty to exercise care with resultingliability for breach, and the availability, cost andprevalence of insurance for the risk involved." 69The most important of these considerations inestablishing duty is foreseeability. As a generalprinciple, a "defendant owes a duty of care to allpersons who are foreseeably endangered by hisconduct, with respect to all risks which make theconduct unreasonably dangerous." (Rodriguez v.Bethlehem Steel Corp. (1974) 12 Cal. 3d 382, 399,115 Cal. Rptr. 765, 776, 525 P.2d 669, 680; Dillonv. Legg, supra, 68 Cal. 2d 728, 739, 69 Cal. Rptr.72, 441 P.2d 912; Weirum v. R.K.O. General, Inc.(1975) 15 Cal. 3d 40, 123 Cal. Rptr. 468, 539 P.2d36; see Civ. Code § 1714.) As we shall explain,however, when the avoidance of foreseeable harmrequires a defendant to control the conduct ofanother person, or to warn of such conduct, thecommon law has traditionally imposed liabilityonly if the defendant bears some specialrelationship to the dangerous person or to thepotential victim. Since the relationship between atherapist and his patient satisfies this requirement,we need not here decide whether foreseeabilityalone is sufficient to create a duty to exercisereasonably care to protect a potential victim ofanother's conduct.Although, as we have stated above, under thecommon law, as a general rule, one person owedno duty to control the conduct of another 7069See Merrill v. Buck (1962) 58 Cal. 2d 552, 562, 25Cal. Rptr. 456, 375 P.2d 304; Biakanja v. Irving (1958) 49Cal. 2d 647, 650, 320 P.2d 16; Walnut Creek AggregatesCo. v. Testing Engineers Inc. (1967) 248 Cal. App. 2d 690,695, 56 Cal. Rptr. 700.70This rule derives from the common law's distinctionbetween misfeasance and nonfeasance, and its reluctanceto impose liability for the latter. (See Harper & Kime, TheDuty to Control the Conduct of Another (1934) 43 YALEL.J. 886, 887.) Morally questionable, the rule owes itssurvival to "the difficulties of setting any standards ofunselfish service to fellow men, and of making anyworkable rule to cover possible situations where fiftypeople might fail to rescue...." (PROSSER, TORTS (4th ed.TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

372 11. RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS(Richards v. Stanley (1954) 43 Cal. 2d 60, 65, 271P.2d 23; Wright v. Arcade School Dist. (1964) 230Cal. App. 2d 272, 277, 40 Cal. Rptr. 812; REST. 2DTORTS (1965) § 315), nor to warn thoseendangered by such conduct (REST. 2D TORTS,supra, § 314, com. c.; PROSSER, LAW OF TORTS(4th ed. 1971) § 56, p. 341), the courts havecarved out an exception to this rule in cases inwhich the defendant stands in some specialrelationship to either the person whose conductneeds to be controlled or in a relationship to theforeseeable victim of that conduct (see REST. 2DTORTS, supra, §§ 315-320). Applying thisexception to the present case, we note that arelationship of defendant therapists to eitherTatiana or Poddar will suffice to establish a dutyof care; as explained in section 315 of theRESTATEMENT SECOND OF TORTS, a duty of caremay arise from either "(a) a special relation ...between the actor and the third person whichimposes a duty upon the actor to control the thirdperson's conduct, or (b) a special relation ...between the actor and the other which gives to theother a right of protection."Although plaintiffs' pleadings assert nospecial relation between Tatiana and defendanttherapists, they establish as between Poddar anddefendant therapists the special relation that arisesbetween a patient and his doctor orpsychotherapist. 71 Such a relationship may supportaffirmative duties for the benefit of third persons.Thus, for example, a hospital must exercisereasonable care to control the behavior of a patient1971) § 56, p. 341.) Because of these practical difficulties,the courts have increased the number of instances in whichaffirmative duties are imposed not by direct rejection of thecommon law rule, but by expanding the list of specialrelationships which will justify departure from that rule.(See PROSSER, supra, § 56, at pp. 348-350.)71The pleadings establish the requisite relationshipbetween Poddar and both Dr. Moore, the therapist whotreated Poddar, and Dr. Powelson, who supervised thattreatment. Plaintiffs also allege that Dr. Gold personallyexamined Poddar, and that Dr. Yandell, as Powelson'sassistant, approved the decision to arrange Poddar'scommitment. These allegations are sufficient to raise theissue whether a doctor-patient or therapist-patientrelationship, giving rise to a possible duty by the doctor ortherapist to exercise reasonable care to protect a threatenedperson of danger arising from the patient's mental illness,existed between Gold or Yandell and Poddar. (SeeHARNEY, MEDICAL MALPRACTICE (1973) p. 7.)which may endanger other persons. 72 A doctormust also warn a patient if the patient's conditionor medication renders certain conduct, such asdriving a car, dangerous to others. 73Although the California decisions thatrecognize this duty have involved cases in whichthe defendant stood in a special relationship bothto the victim and to the person whose conductcreated the danger, 74 we do not think that the dutyshould logically be constricted to such situations.Decisions of other jurisdictions hold that thesingle relationship of a doctor to his patient issufficient to support the duty to exercisereasonable care to protect others against dangersemanating from the patient's illness. The courtshold that a doctor is liable to persons infected byhis patient if he negligently fails to diagnose acontagious disease (Hofmann v. Blackmon (Fla.App. 1970) 241 So. 2d 752), or, having diagnosedthe illness, fails to warn members of patient'sfamily (Wojcik v. Aluminum Co. of America (1959)18 Misc. 2d 740, 183 N.Y.S.2d 351, 357-358;72When a "hospital has notice or knowledge of factsfrom which it might reasonably be concluded that a patientwould be likely to harm himself or others unless preclusivemeasures were taken, then the hospital must use reasonablecare in the circumstances to prevent such harm." (Vistica v.Presbyterian Hospital (1967) 67 Cal. 2d 465, 469, 62 Cal.Rptr. 577, 580, 432 P.2d 193, 196.) (Emphasis added.) Amental hospital may be liable if it negligently permits theescape or release of a dangerous patient (SemlerPsychiatric Institute of Washington, D.C. (4th Cir. 1976)44 U.S.L. WEEK 2439; Underwood v. United States (5thCir. 1966) 356 F.2d 92; Fair v. United States (5th Cir.1956) 234 F.2d 288). Greenberg v. Barbour (E.D. Pa.1971) 322 F. Supp. 745, upheld a cause of action against ahospital staff doctor whose negligent failure to admit amental patient resulted in that patient assaulting theplaintiff.73Kaiser v. Suburban Transp. System (1965) 65 Wash.2d 461, 398 P.2d 14; see Freese v. Lemmon (Iowa 1973)210 N.W.2d 576 (concurring opn. of UHLENHOPP. J.).74Ellis v. D'Angelo (1953) 116 Cal. App. 2d 310, 253P.2d 675, upheld a cause of action against parents whofailed to warn a babysitter of the violent proclivities oftheir child; Johnson v. State of California (1968) 69 Cal.2d 782, 73 Cal. Rptr. 240, 447 P.2d 352, upheld a suitagainst the state for failure to warn foster parents of thedangerous tendencies of their ward; Morgan v. City ofYuba (1964) 230 Cal. App. 2d 938, 41 Cal. Rptr. 508,sustained a cause of action against a sheriff who hadpromised to warn decedent before releasing a dangerousprisoner, but failed to do so.TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 373Davis v. Rodman (1921) 147 Ark. 385, 227 S.W.612; Skillings v. Allen (1919) 143 Minn. 323, 173N.W. 663; see also Jones v. Stanko (1928) 118Ohio St. 147, 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 VeteransAdministration arranged for the patient to work ona local farm, but did not inform the farmer of theman's background. The farmer consequentlypermitted the patient to come and go freely duringnonworking hours; the patient borrowed a car,drove to his wife's residence and killed her.Notwithstanding the lack of any "specialrelationship" between the Veterans Administrationand the wife, the court found the VeteransAdministration liable for the wrongful death of thewife.In their summary of the relevant rulingsFleming and Maximov conclude that the "case lawshould dispel any notion that to impose on thetherapists a duty to take precautions for the safetyof persons threatened by a patient, where due careso requires, is in any way opposed tocontemporary ground rules on the dutyrelationship. On the contrary, there now seems tobe sufficient authority to support the conclusionthat by entering into a doctor-patient relationshipthe therapist becomes sufficiently involved toassume some responsibility for the safety, not onlyof the patient himself, but also of any third personwhom the doctor knows to be threatened by thepatient." (Fleming & Maximov, The Patient or HisVictim: The Therapist's Dilemma (1974) 62 CAL.L. REV. 1025, 1030.)Defendants contend, however, that impositionof a duty to exercise reasonable care to protectthird persons is unworkable because therapistscannot accurately predict whether or not a patientwill resort to violence. In support of this argumentamicus representing the American PsychiatricAssociation and other professional societies citesnumerous articles which indicate that therapists, inthe present state of the art, are unable reliably topredict violent acts; their forecasts, amicus claims,tend consistently to overpredict violence, andindeed are more often wrong than right. 75 Sincepredictions of violence are often erroneous,amicus concludes, the courts should not renderrulings that predicate the liability of therapistsupon the validity of such predictions.The role of the psychiatrist, who is indeed apractitioner of medicine, and that of thepsychologist who performs an allied function, arelike that of the physician who must conform to thestandards of the profession and who must oftenmake diagnoses and predictions based upon suchevaluations. Thus the judgment of the therapist indiagnosing emotional disorders and in predictingwhether a patient presents a serious danger ofviolence is comparable to the judgment whichdoctors and professionals must regularly renderunder accepted rules of responsibility.We recognize the difficulty that a therapistencounters in attempting to forecast whether apatient presents a serious danger of violence.Obviously we do not require that the therapist, inmaking that determination, render a perfectperformance; the therapist need only exercise "thatreasonable degree of skill, knowledge, and careordinarily possessed and exercised by members of(that professional specialty) under similarcircumstances." (Bardessono v. Michels (1970) 3Cal. 3d 780, 788, 91 Cal. Rptr. 760, 764, 478 P.2d480, 484; Quintal v. Laurel Grove Hospital (1964)62 Cal. 2d 154, 159-160, 41 Cal. Rptr. 577, 397P.2d 161; see 4 WITKIN, SUMMARY OF CAL. LAW(8th ed. 1974) Torts, § 514 and cases cited.)Within the broad range of reasonable practice andtreatment in which professional opinion andjudgment may differ, the therapist is free toexercise his or her own best judgment withoutliability; proof, aided by hindsight, that he or shejudged wrongly is insufficient to establishnegligence.In the instant case, however, the pleadings donot raise any question as to failure of defendanttherapists to predict that Poddar presented aserious danger of violence. On the contrary, thepresent complaints allege that defendant therapistsdid in fact predict that Poddar would kill, but werenegligent in failing to warn.Amicus contends, however, that even when atherapist does in fact predict that a patient poses a75See, e.g., People v. Burnick (1975) 14 Cal. 3d 306,325-328, 121 Cal. Rptr. 488, 535 P.2d 352; Monahan, ThePrevention of Violence, in COMMUNITY MENTAL HEALTHIN THE CRIMINAL JUSTICE SYSTEM (Monahan ed. 1975);Diamond, The Psychiatric Prediction of Dangerousness(1975) 123 U. PA. L. REV. 439; Ennis & Litwack,Psychiatry and the Presumption of Expertise: FlippingCoins in the Courtroom (1974) 62 CAL. L. REV. 693.TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

374 11. RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFSserious danger of violence to others, the therapistshould be absolved of any responsibility forfailing to act to protect the potential victim. In ourview, however, once a therapist does factdetermine, or under applicable professionalstandards reasonably should have determined, thata patient poses a serious danger of violence toothers, he bears a duty to exercise reasonable careto protect the foreseeable victim of that danger.While the discharge of this duty of due care willnecessarily vary with the facts of each case, 76 ineach instance the adequacy of the therapist'sconduct must be measured against the traditionalnegligence standard of the rendition of reasonablecare 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 andMaximov, The Patient or His Victim: TheTherapist's Dilemma (1974) 62 CAL. L. REV.1025, 1067: "the ultimate question of resolving thetension between the conflicting interests of patientand potential victim is one of social policy, notprofessional expertise.... In sum, the therapistowes a legal duty not only to his patient, but alsoto his patient's would-be victim and is subject inboth respects to scrutiny by judge and jury."Contrary to the assertion of amicus, thisconclusion is not inconsistent with our recentdecision in People v. Burnick, supra, 14 Cal. 3d306, 121 Cal. Rptr. 488, 535 P.2d 352. Taking noteof the uncertain character of therapeuticprediction, we held in Burnick that a personcannot be committed as a mentally disordered sexoffender unless found to be such by proof beyonda reasonable doubt. (14 Cal. 3d at p. 328, 121 Cal.Rptr. 488, 535 P.2d 352.) The issue in the presentcontext, however, is not whether the patient shouldbe incarcerated, but whether the therapist shouldtake any steps at all to protect the threatenedvictim; some of the alternatives open to thetherapist, such as warning the victim, will notresult in the drastic consequences of depriving the76Defendant therapists and amicus also argue thatwarnings must be given only in those cases in which thetherapist knows the identity of the victim. We recognizethat in some cases it would be unreasonable to require thetherapist to interrogate his patient to discover the victim'sidentity, or to conduct an independent investigation. Butthere may also be cases which a moment's reflection willreveal the victim's identity. The matter thus is one whichdepends upon the circumstances of each case, and shouldnot be governed by any hard and fast rule.patient of his liberty. Weighing the uncertain andconjectural character of the alleged damage donethe patient by such a warning against the peril tothe victim's life, we conclude that professionalinaccuracy in predicting violence cannot negatethe therapist's duty to protect the threatenedvictim.The risk that unnecessary warnings may begiven is a reasonable price to pay for the lives ofpossible victims that may be saved. We wouldhesitate to hold that the therapist who is aware thathis patient expects to attempt to assassinate thePresident of the United States would not beobligated to warn the authorities because thetherapist cannot predict with accuracy that hispatient will commit the crime.Defendants further argue that free and opencommunication is essential to psychotherapy (seeIn re Lifschutz (1970) 2 Cal. 3d 415, 431-434, 85Cal. Rptr. 829, 467 P.2d 557); that "Unless apatient ... is assured that ... information (revealedby him) can and will be held in utmost confidence,he will be reluctant to make the full disclosureupon which diagnosis and treatment ... depends."(Sen. Com. on Judiciary, comment on Evid. Code,§ 1014.) The giving of a warning, defendantscontend, constitutes a breach of trust which entailsthe revelation of confidential communications. 7777Counsel for defendant Regents and amicus AmericanPsychiatric Association predict that a decision of this courtholding that a therapist may bear a duty to warn a potentialvictim will deter violence-prone persons from seekingtherapy, and hamper the treatment of other patients. Thiscontention was examined in Fleming and Maximov, ThePatient or His Victim: The Therapist's Dilemma (1974) 62CAL. L. REV. 1025, 1038-1044; they conclude that suchpredictions are entirely speculative. In In re Lifschutz,supra, 2 Cal. 3d 415, 85 Cal. Rptr. 829, 467 P.2d 557,counsel for the psychiatrist argued that if the state couldcompel disclosure of some psychotherapeuticcommunications, psychotherapy could no longer bepracticed successfully. (2 Cal. 3d at p. 426, 85 Cal. Rptr.829, 467 P.2d 557.) We rejected that argument, and it doesnot appear that our decision in fact adversely affected thepractice of psychotherapy in California. Counsel's forecastof harm in the present case strikes us as equally dubious.We note, moreover, that Evidence Code section 1024,enacted in 1965, established that psychotherapeuticcommunication is not privileged when disclosure isnecessary to prevent threatened danger. We cannot acceptwithout question counsels' implicit assumption thateffective therapy for potentially violent patients dependsupon either the patient's lack of awareness that a therapistcan disclose confidential communications to avertimpending danger, or upon the therapist's advance promisenever to reveal nonprivileged threats of violence.TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 375We recognize the public interest in supportingeffective treatment of mental illness and inprotecting the rights of patients to privacy (see Inre Lifschutz, supra, 2 Cal. 3d at p. 432, 85 Cal.Rptr. 829, 467 P.2d 557), and the consequentpublic importance of safeguarding the confidentialcharacter of psychotherapeutic communication.Against this interest, however, we must weigh thepublic interest in safety from violent assault. TheLegislature has undertaken the difficult task ofbalancing the countervailing concerns. In evidenceCode section 1014, it established a broad rule ofprivilege to protect confidential Communicationsbetween patient and psychotherapist. In EvidenceCode section 1024, the Legislature created aspecific and limited exception to thepsychotherapist-patient privilege: "There is noprivilege ... if the psychotherapist has reasonablecause to believe that the patient is in such mentalor emotional condition as to be dangerous tohimself or to the person or property of another andthat disclosure of the communication is necessaryto prevent the threatened danger." 78We realize that the open and confidentialcharacter of psychotherapeutic dialogueencourages patients to express threats of violence,few of which are ever executed. Certainly atherapist should not be encouraged routinely toreveal such threats; such disclosures couldseriously disrupt the patient's relationship with histherapist and with the persons threatened. To thecontrary, the therapist's obligations to his patientrequire that he not disclose a confidence unlesssuch disclosure is necessary to avert danger to78Fleming and Maximov note that "While [section1024] supports the therapist's less controversial right tomake a disclosure, it admittedly does not impose in him aduty to do so. But the argument does not have to bepressed that far. For if it is once conceded ... that a duty infavor of the patient's foreseeable victims would accordwith general principles of tort liability, we need no longerlook to the statute for a source of duty. It is sufficient if thestatute can be relied upon ... for the purposes of counteringthe claim that the needs of confidentiality are paramountand must therefore defeat any such hypothetical duty. Inthis more modest perspective, the Evidence Code's`dangerous patient' exception may be invoked with someconfidence as a clear expression of legislative policyconcerning the balance between the confidentiality valuesof the patient and the safety values of his foreseeablevictims." (Emphasis in original.) Fleming & Maximov, ThePatient or His Victim: The Therapist's Dilemma (1974) 62CAL. L. REV. 1025, 1063.others, and even then that he do so discreetly, andin a fashion that would preserve the privacy of hispatient to the fullest extent compatible with theprevention of the threatened danger. (See Fleming& Maximov, The Patient or His Victim: TheTherapist's Dilemma (1974) 62 CAL. L. REV.1025, 1065-1066.) 79The revelation of a communication under theabove circumstances is not a breach of trust or aviolation of professional ethics; as stated in thePRINCIPLES OF MEDICAL ETHICS OF THEAMERICAN MEDICAL ASSOCIATION (1957), section9: "A physician may not reveal the confidenceentrusted to him in the course of medicalattendance ... [u]nless he is required to do so bylaw or unless it becomes necessary in order toprotect the welfare of the individual or of thecommunity." 80 (Emphasis added.) We concludethat the public policy favoring protection of theconfidential character of patient-psychotherapistcommunications must yield to the extent to whichdisclosure is essential to avert danger to others.The protective privilege ends where the publicperil begins.Our current crowded and computerizedsociety compels the interdependence of itsmembers. In this risk-infested society we canhardly tolerate the further exposure to danger thatwould result from a concealed knowledge of thetherapist that his patient was lethal. If the exerciseof reasonable care to protect the threatened victimrequires the therapist to warn the endangered partyor those who can reasonably be expected to notifyhim, we see no sufficient societal interest thatwould protect and justify concealment. Thecontainment of such risks lies in the publicinterest. For the foregoing reasons, we find thatplaintiffs' complaints can be amended to state acause of action against defendants Moore,Powelson, Gold, and Yandell and against theRegents as their employer, for breach of a duty to79Amicus suggests that a therapist who concludes thathis patient is dangerous should not warn the potentialvictim, but institute proceedings for involuntary detentionof the patient. The giving of a warning, however, would inmany cases represent a far lesser inroad upon the patient'sprivacy than would involuntary commitment.80See also Summary Report of the Task Force onConfidentiality of the Council on Professions andAssociations of the American Psychiatric Association(1975).TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

376 11. RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFSexercise reasonable care to protect Tatiana. 81* * *CLARK, Justice (dissenting)Until today's majority opinion, both legal andmedical authorities have agreed thatconfidentiality is essential to effectively treat thementally ill, and that imposing a duty on doctorsto disclose patient threats to potential victimswould greatly impair treatment. Further,recognizing that effective treatment and society'ssafety are necessarily intertwined, the Legislaturehas already decided effective and confidentialtreatment is preferred over imposition of a duty towarn.The issue whether effective treatment for thementally ill should be sacrificed to a system ofwarnings is, in my opinion, properly one for theLegislature, and we are bound by its judgment.Moreover, even in the absence of clear legislativedirection, we must reach the same conclusionbecause imposing the majority's new duty iscertain to result in a net increase in violence.Questions and Notes1. Tarasoff naturally raises the question ofwhat kind of liability is faced by psychiatricinstitutions when they discharge (or fail to preventthe escape of) patients who later commit acts ofviolence. See Comment, Tort Liability forCalifornia Public Psychiatric Facilities: Time fora Change, 29 SANTA CLARA L. REV. 459 (1989).Remember that when one negligently allowsanother tortfeasor to engage in criminal conduct,the argument can be made that the criminalconduct was a superseding cause of the injury andthat the negligent failure to prevent the injury wasnot a proximate cause. This argument, of course, isless persuasive when it is precisely the risk offuture criminal conduct that makes the defendant'sact negligent in the first place. See RESTATEMENT(2D), TORTS, § 485.2. There is a countervailing interest in themaintenance of confidentiality between therapistand patient. See Ellen W. Grabois, The Liability ofPsychotherapists for Breach of Confidentiality, 12J.L. & HEALTH 39 (1997-98). See also ToddWaller, M.D., Application of Traditional Tort LawPost-Tarasoff, 31 Akron L. Rev. 321 (1997).3. Tenants' suits against landlords for assaultscommitted on the premises are common; suchcases raise difficult issues both about reliance andabout the duty to rescue. See Kline v. 1500Massachusetts Avenue Apartment Corp., 439 F.2d477 (D.C. Cir. 1970); Frances T. v. Village GreenOwners Assn., 42 Cal. 3d 490, 723 P.2d 573, 229Cal. Rptr. 456 (1986).4. Tarasoff has even been extended to theInternet: Jon B. Eisenberg and Jeremy B. Rosen,Unmasking "Crack_smoking_jesus": Do InternetService Providers Have a Tarasoff Duty to Divulgethe Identity of a Subscriber Who Is Making DeathThreats? 25 Hastings Comm. & Ent. L.J. 683(2003).81Moore argues that after Powelson countermanded thedecision to seek commitment for Poddar, Moore wasobliged to obey the decision of his superior and thattherefore he should not be held liable for any derelictionarising from his obedience to superior orders. Plaintiffs inresponse contend that Moore's duty to members of thepublic endangered by Poddar should take precedence overhis duty to obey Powelson. Since plaintiffs' complaints donot set out the date of Powelson's order, the specific termsof that order, or Powelson's authority to overrule Moore'sdecisions respecting patients under Moore's care, we neednot adjudicate this conflict; we pass only upon thepleadings at this stage and decide if the complaints can beamended to state a cause of action.TARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 377BROWN v. UNITED STATES790 F.2d 199 (1st Cir. 1986)Bailey ALDRICH, Senior Circuit JudgeFriday noon, November 21, 1980, the F/V SEAFEVER and the F/V FAIRWIND set out from theirhome port of Hyannis, Massachusetts, for thesoutheastern edge of Georges Bank to engage inlobster fishing. Before leaving, they listened, aswas their custom, on their radio receivers, to theNational Weather Service (NWS) marine weatherpredictions. On VHF and sideband radios therecan be received regularly, at 5:00 a.m., 11:00 a.m.,5:00 p.m. and 11:00 p.m., reports prepared byNWS as of 21 minutes before, with duplicatebroadcasts 20 minutes later. The Friday 11:00 a.m.broadcast predicted good weather, as did those at5:00 and 11:00 p.m. thereafter. Early Saturdaymorning the vessels arrived at the fishing grounds.The 5:00 a.m. report carried a gale warning,predicting northwest winds, 30 to 40 knots for thearea, diminishing by night, with seas 6 to 12 feet,subsiding at night. In point of fact, the vesselswere already experiencing such winds, and evengreater seas. This was too much weather, butbecause of the wind's direction, it was impossibleto turn back.The 10:39 a.m. report, broadcast at 11:00 and11:20, read, Storm warning in effect at 10 a.m.EST ... northwest winds 40 to 50 knots overnight... Seas 15 to 25 rest of today subsiding tonight.Again, the storm was already even greaterthan the forecast. The SEA FEVER was experiencingwinds in excess of 70 knots, with seas runningbetween 30 and 40 feet in height. This was a stormknown, because of its sudden and explosivedevelopment, as a "bomb." At about this time theFAIRWIND pitchpoled and sank. Three of her crewwere lost; the one other ultimately being rescuedin a liferaft. In addition, one of the SEA FEVER'screw was swept overboard.Based on a finding of negligence in not earlierpredicting the storm's true path, the district court,following a bench trial pursuant to the Suits inAdmiralty Act, 46 U.S.C. §§ 741 et seq., 1 awardeddamages to plaintiff representatives of thedeceased fishermen. Brown v. United States, 5991Concededly liability corresponds with the FederalTort Claims Act. Gercey v. United States, 540 F.2d 536(1st Cir. 1976), cert. denied, 430 U.S. 954, 97 S. Ct. 1599,51 L. Ed. 2d 804.F. Supp. 877 (D. Mass. 1984); s.c. 615 F. Supp.391 (D. Mass. 1985). On this appeal thegovernment denies liability as a matter of law, andas a matter of fact. Plaintiffs' claims in bothrespects are based upon the government's failureto have repaired or replaced a sporadicallymalfunctioning weather-reporting buoy onGeorges Bank. Put summarily, the government'sposition is that it owed no actionable duty, but, if itdid, that it had acted reasonably, and that causationwas lacking, viz., that the court's findings withrespect to the buoy's contribution to the failure topredict were clearly erroneous.First, the facts. 2 The government maintains aNational Meteorological Center (NMC) nearWashington, D.C., which processes weatherinformation received from all over, including fromweather buoys that transmit via satellite. It reportsits computer-prepared data to the various NWSoffices, which use it in preparing their forecasts.The Georges Bank buoy's station, known as44003, is not always occupied by the same buoy.At the times here relevant the buoy was number6N12. This buoy was scheduled to be replaced byan improved type. In the meantime, on August 11,1980 it was discovered that it had been damaged,apparently by a passing ship. Limited repairs weremade, leaving the buoy functioning in all respects,but on September 9 it was found that the windspeed and direction data was sometimes erratic,known as "spiking." Because it could not be surewhen this was happening, NMC continued to logits wind data, but ceased transmitting it to theNWS offices.The government Data Buoy Center (NDBC)had planned an early replacement of buoy 6N12with buoy 6N3, after bringing 6N3 ashore andinstalling the new reporting system, but 6N3 wentadrift, and though ultimately recovered, it was notexpected to be ready until January. In the interim,because of 6N12's erratic performance, NDBCthought to deploy 6N9, which was itself about tobe replaced, as a temporary substitute. However,6N9, too, went adrift and was permanently lost.Further temporary repairs to 6N12 itself were notattempted. The court found this to have beenunreasonable. The government disputes this, butfor present purposes we will assume in plaintiffs'favor that if, as a matter of tort law, the2Many more facts are contained in the district court's1984 opinion, 599 F. Supp. 877, ante.

378 11. RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFSgovernment owed a duty of care, the finding waswarranted. 3As to causation, plaintiffs' expert, whom thecourt credited, testified that an importantcomponent in predicting the future weather atGeorges Bank would be an accurate report of whatwas the weather there at the moment, and that ifNMC had received correct reports from station44003 NWS should have forecast the storm intime for the SEA FEVER and FAIRWIND to escape byreturning to port. The government's causationposition is that, although its data was not used,6N12 was not spiking at that time, and thatplaintiffs' expert's factual assumptions to thecontrary were unsupported, and hence his entireopinion was disproven. Rather than pursue thealways difficult questions of clearly erroneous,because the court's finding or, more precisely, itsruling as to a government duty could have verysignificant repercussions, we will deal with thatfirst.Ever since enactment of the Federal TortClaims Act, the area of government acceptance ofliability on account of government functions haspresented difficult questions. One line ofdemarcation is rejection if the undertaking was"discretionary." 28 U.S.C. § 2680(a). 4 Thus, whenthe government has discretion whether to issue alicense to vessels carrying passengers for hire, itcannot be held liable for an alleged unjustifiablerefusal. Coastwise Packet Co. v. United States,398 F.2d 77 (1st Cir. 1968), cert. denied, 393 U.S.937, 89 S. Ct. 300, 21 L. Ed. 2d 274. However, thetest is not that simple. In the leading case ofIndian Towing Co. v. United States, 350 U.S. 61,76 S. Ct. 122, 100 L. Ed. 48 (1955), thegovernment negligently failed to maintain alighthouse whose presence was advertised in theofficial Light List. The Court agreed with thegovernment that the decision whether or not toprovide the lighthouse was, in the first instance, adiscretionary matter, and that there was no duty to3We have examined the record and, in fairness to theWeather Service, it is not certain that this finding issupportable. Clearly, a finding the other way would havebeen justified.4"(a) Any claim ... based upon the exercise orperformance or the failure to exercise or perform adiscretionary function or duty on the part of a federalagency or an employee of the government, whether or notthe discretion involved was abused, [is not consented to.]"do so. However, once it had done so, and had"engendered reliance on the guidance afforded bythe light, the government was obligated to use duecare...." 350 U.S. at 69, 76 S. Ct. at 125. Twoprinciples are thus involved: the government's freeright to engage, or not, in discretionary functions,but with a cut-off where by its conduct, it hasinduced justified reliance on its adequateperformance. The important word is "justified."As to the first, the government not only hasdiscretion whether or not to engage, but discretionto determine the extent to which it will do so.Thus, in Chute v. United States, 610 F.2d 7 (1stCir. 1978), cert. denied, 446 U.S. 936, 100 S. Ct.2155, 64 L. Ed. 2d 789, the government marked asunken wreck with a buoy that protruded only 3 1 /2feet above water. Plaintiff's vessel operator failedto see the buoy, and struck the wreck. The districtcourt adopted the testimony - which we did notdispute - that a 15 foot day marker would havebeen "more effective." It further found that the 3 1 /2foot buoy was inadequate, and that the CoastGuard having recognized a need of marking thewreck, this was improper performance, and heldfor the plaintiff. In reversing, we discussed atlength the teaching of Indian Towing.In that case damage was sustainedwhen a lighthouse light operated by theCoast Guard was negligently allowed togo out. The Supreme Court stated thatwhile the Coast Guard need not haveundertaken the lighthouse service, once ithad exercised its discretion to operate thelight and engendered reliance on theguidance afforded thereby, it wasobligated to use due care to make certainthe light was kept in good workingorder.... [L]iability was not imposed inthat case because a more powerful light ortaller lighthouse would have been a betterwarning of the rocks marked by thelighthouse, but rather because thenegligent non-functioning of the charted(viz., advertised) lighthouse misledplaintiff to his detriment. 610 F.2d at13-14.We accordingly held that, even if a 3 1 /2 footbuoy could be found inadequate had thegovernment assumed a duty of due care, it was forthe government to decide on the extent of care itwished to undertake.The rationale of Chute was that although theTARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 379Coast Guard is known to have undertaken markingdangers to navigation, the extent to which it willdo so is a discretionary function. There can be nojustified reliance upon, or expectation of, anyparticular degree of performance; something moreis needed to establish liability. "[T]here are variousdegrees of protection. Courts have neither theexpertise, the information, nor the authority toallocate the finite resources available to theSecretary among competing priorities." 610 F.2dat 12. Similarly, in our earlier case of UnitedStates v. Sandra & Dennis Fishing Corp., 372 F.2d189, 195 (1st Cir. 1967), where we held thegovernment liable for negligent performance bythe Coast Guard of a rescue operation after it hadundertaken it, we stated, after noting that the onlyrescue vessel available had an inoperable radiodirection finder, a seriously defective fathometer,an error in its gyro compass, and an inaccurate andunreliable loran, "How much equipment the CoastGuard is to possess, and how much money it is tospend, measured, necessarily, by Congressionalappropriations, must be for the government'suncontrolled discretion."We note, in passing, that in Eklof MarineCorp. v. United States, 762 F.2d 200 (2d Cir.1985), the Second Circuit has disagreed withChute, holding that although, concededly, therewas no duty to mark the danger at all, by setting abuoy the Coast Guard had accepted a duty, andwas thus obligated to perform it fully, even, ifnecessary, to the point of setting two or threebuoys. With respect, for reasons we developherein, we believe the court misunderstood therationale of Indian Towing on which it relied. 5In the present case, the district court basicallyfollowed the Eklof reasoning. The very offering ofweather service of itself accepted liability anddestroyed the government's exemption from suit."[O]nce a system was in place and mariners beganto rely on it the time for policy judgments waspast." 599 F. Supp. at 889. Put simply, the court'sapproach was this. The government established the5We believe, too, that the court failed to consider thepernicious consequences that could flow from its approach.With necessarily limited funds, and unable to afford threebuoys, will a Coast Guard official place one and risk heavydamages ($382,000 in Eklof), or place none at all and playit safe - from the government's standpoint? Eklof cuts tothe heart of governmental discretion, and, in effect, coulddeprive navigators of half a loaf, usually thought betterthan none.service for the benefit, inter alia, of fishermen;fishermen relied upon it; the government knewthey would rely on it; therefore the governmentinduced reliance; having induced reliance, itbecame obligated to use due care. At first blushthis perhaps seems plausible. The difficulty is, itproves too much. Every service that thegovernment offers is presumably intended tobenefit some class or classes of persons; ergo, theyuse it; ergo they relied on it; ergo the governmentinduced reliance; ergo the government owed aduty of due care. On this basis, the only parties towhom the discretionary exception would applywould be who? Non-users? The court has read thediscretionary function exception right out byfinding it does not apply at precisely the place towhich it is particularly directed.In analyzing this we note first that, unlikeIndian Towing, the government here did not makean affirmative misstatement of fact, viz., that anoperating buoy was currently providing wind datafrom location 44003. 6 Although some weatherbroadcasts did, at least on occasion, reportindividual station findings, station 44003 winddata had not been released by NMC sinceSeptember 9, 1980, a fact not contradicted.Plaintiffs' complaint is, rather, that thegovernment's weather predictions were not up toan adequate standard because the forecasterslacked that particular information. Our question iswhether the government, by issuing reports,assumed a duty to invest in that activity whateverresources a court might find necessary in order toachieve what it believed to be proper care.Although we think what we have already saidindicates the answer to be no, we will pursue thematter further. To begin with, while, as we havealready stated, we are dealing here with a tangibleobject, a particular supplier of information thatgoes into the mix, and while we accept the court'sfinding that this would be information ofimportance, the representation was not the buoy,but the prediction. Hence the principle involved isnot limited to finding unreasonable the failure tomaintain a particular supplier, but is universal, andwould apply to anything judicially foundunreasonably to impair the quality of theprediction. An expert might testify, and a courtaccept, that to prepare a fully adequate weather6Cf. De Bardeleben Marine Corp v. United States, 451F.2d 140 (5th Cir. 1971) (failure of government chart toshow sunken pipeline; dictum).

380 11. RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFSreport would call for still additional buoys, or formore advanced computers, or for more operators.Or it might find malfeasance in the processing. Allof these are matters which Congress reserved, bothto itself in respect to appropriations, and to theagencies' conduct, by the discretionary exceptionfrom the F.T.C.A.'s consent to suit. A compilationof early examples of discretionary functions maybe found in Dalehite v. United States, 346 U.S. 15,73 S. Ct. 956, 97 L. Ed. 1427 (1953). See, also,United States v. S.A. Empresa de Viacao Aerea RioGrandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L. Ed. 2d 660 (1984), hereafter VarigAirlines; Shuman v. United States, 765 F.2d 283(1st Cir. 1985). Without question, a weatherservice constitutes such, and to say that the veryexercise of the function justifies reliance and aright to expect complete care would make thediscretionary exception self-destructive.Although we did not so express it in Chute,the proper dividing line between liability andnonliability in such cases has been well stated inthe recent case of Wysinger v. United States, 784F.2d 1252, 1253 (5th Cir. 1986). "In these cases[imposing liability] the government created thedanger after the critical discretionary decision hadbeen made." In Indian Towing, the governmentcreated a danger by representing that an operatinglighthouse was present. In Varig Airlines, ante, thegovernment did not create the defective airplane;by merely making only spot checks it did notsupply a fully efficient inspection service. For thisit was not liable. So, in the case at bar, thegovernment did not create the weather; it merelyfailed, in the court's opinion, to render adequateperformance. In both cases this was adiscretionary undertaking. The court failed torespect the statutory provision, n.4, ante, "whetheror not the discretion involved was abused."Nor does it advance matters to say, as did thedistrict court, perhaps aware of the consequencesof a broader ruling, that the "duty ... is ... limited ...to an identifiable group of mariners that placespecial reliance on the accuracy of the NWSweather forecast." 599 F. Supp. at 885. This waswrong in principle, and wrong in the particular. Totake the latter first, we might judicially notice thatVHF marine forecasts, in addition to localgeographical designations, are divided into zones:"Up to 25 miles offshore;" "Georges Bank,Northeast Channel & Great South Channel;" andbeyond, sometimes described as "Up to 1,000fathoms." "Small craft advisories" are given whenparticular caution is indicated. Quite apart fromthese details, a cursory look at yacht marinas willshow that, in summer, far more amateur seafarersare concerned with weather than are professionalseamen. Are the former (who, because of lack ofskill, might need warnings more?) not expected torely? Or does the government represent due carefor offshore waters, but not for inshore? Surelyweather phenomena are not respecters of personsor places.More important, the court's making anexception is unsupportable in principle. The courtbased this special treatment upon the legislativehistory recognizing a need for more accurateservice. This proves too much. Presumably a needis found for every government service, or it wouldnot be undertaken in the first place. Need cannot,by implication, amend the plain language of thediscretionary exception. Nor can the court'sfinding that fishermen "had come to rely on thegovernment forecasts." 599 F. Supp. ante, at 885.We are back to the beginning: the fishermencannot unilaterally impose on the government aliability it expressly disclaimed.We add that, from the standpoint of thegovernment, the Weather Service is a particularlyunfortunate area in which to establish a duty ofjudicially reviewable due care. A weather forecastis a classic example of a prediction ofindeterminate reliability, and a place peculiarlyopen to debatable decisions, including thedesirable degree of investment of governmentfunds and other resources. Weather predictions failon frequent occasions. If in only a smallproportion parties suffering in consequencesucceeded in producing an expert who couldpersuade a judge, as here, that the governmentshould have done better, the burden on the fiscwould be both unlimited and intolerable. Whatplaintiffs choose to disregard as a chamber ofhorrors in Judge Johnson's concurring opinion inNational Manufacturing Co. v. United States, 210F.2d 263, 280 (8th Cir. 1954), cert. denied, 347U.S. 967, 74 S. Ct. 778, 98 L. Ed. 1108, becausehe was speaking in terms of strict liability, is notto be so dismissed. Rather, as the court said inVarig Airlines, ante, 104 S. Ct. at 2768,Judicial intervention in suchdecisionmaking through private tort suitswould require the courts to"second-guess" the political, social, andeconomic judgments of an agencyexercising its regulatory function. It wasTARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 381precisely this sort of judicial interventionin policymaking that the discretionaryfunction exception was designed toprevent.Finally, plaintiffs contend, and the courtfound, that the government should have reportedin the Notice to Mariners the suspended use ofwind data from station 44003. Notice to Marinersis a service by which interested parties areinformed of current changes believed to be ofmoment. Loss or abandonment of an importantnavigational aid would be an example. The shortanswer to this claim is that the government has apolicy not to report the underlying structure orbasis of its weather computing system, or ofchanges therein. Such a policy is a classicdiscretionary matter not subject to judicial review.Dalehite v. United States, ante. Though not ouraffair, we add this seems a highly reasonablechoice. For the government to add a servicerequiring it, with a penalty of judicial assessment(in both senses), to permit public scrutiny of itsfunctioning would open up a whole new field,indeed one in terms excluded by the statute.Reversed.PETTINE, Senior District Judge, concurringWhile I concur in the result reached by mybrethren, I feel compelled to write separately toclarify my reasons for joining the reversal of thejudgment below. The opinion of the district courtjudge was provocative, well-reasoned, andobviously carefully thought through. I feelconstrained for two interrelated reasons, however,to reverse. First, our opinion in Chute v. UnitedStates, 610 F.2d 7 (1st Cir. 1979), cert. denied, 446U.S. 936, 100 S. Ct. 2155, 64 L. Ed. 2d 789(1980) indicated that the discretionary functionexception precludes a court from evaluatingwhether a particular service provided by thegovernment is "effective" or "adequate." We madeclear, however, that under the rationale of IndianTowing Co. v. United States, 350 U.S. 61, 76 S. Ct.122, 100 L. Ed. 48 (1955), a government entity'sdiscretion is confined by the requirement that onceit undertakes to provide a given component of aservice and renders reliance on that particularcomponent, it is obligated to exercise due care inmaking certain that aspect of the service is kept ingood working order. 610 F.2d at 13.This brings me to my second reason. Theplaintiffs' reliance in this case, as well stated bymy colleagues, was not on an affirmativemisstatement of fact, i.e., was not on informationprovided by the Georges Bank buoy, but rested onthe prediction itself, which at any one time ismade up of a number of different factors, no oneof which is necessarily determinative. If courts areto interfere so as to ensure that the weather servicecontinues to maintain a given level or quality ofprediction, which is made up of numerous andvaried factors, in effect, courts would be assessingthe adequacy of this government service, for whois to say what components are necessary tomaintaining the previously set level of prediction.I, therefore, believe this case different from IndianTowing.Questions and Notes1. The RESTATEMENT (2D), TORTS, § 284defines negligent conduct as "either (a) an actwhich the actor as a reasonable man shouldrecognize as involving an unreasonable risk ofcausing an invasion of an interest of another, or (b)a failure to do an act which is necessary for theprotection or assistance of another and which theactor is under a duty to do." Does this provide anyhelp in determining whether a duty of reasonablecare is owed?2. Negligent failure to rescue is a frequentbasis for tort claims, but courts are divided onwhen a duty to rescue attaches. In DeShaney v.Winnebago County Dep't of Social Serv., 109 S.Ct. 998 (1989), the Supreme Court ruled that achild welfare agency's failure to prevent the deathof a child at the hands of an abusive father did notconstitute a violation of 42 U.S.C. § 1983, whichcreates a cause of action for deprivation ofconstitutional rights. The court specificallyrecognized the potential for claims based uponstate tort law (Id. at 1007), but denied aconstitutional basis for compensation. However, ina Washington case based on similar facts, socialservice caseworkers were held as a matter of statetort law to enjoy absolute immunity for theexecution of the full range of their duties. Babcockv. State, 112 Wash. 2d 83, 768 P.2d 481 (1989).For a general treatment of failure to rescue cases,see Note, Negligent Failure to Rescue: LiabilityUnder 42 U.S.C. Section 1983: DeShaney v.Winnebago County Dept. of Social Serv., 109 S.Ct. 998 (1989), 12 Hamline L. Rev. 421 (1989).3. The Public Duty Doctrine. Some courts

382 11. RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFSdescribe problems like the one presented in Brownunder the heading "public duty doctrine." Thesecases typically involve a police department orsocial service agency that fails to provide somekind of assistance, leading to injury. The generalrule is that the governmental entity must haveowed a specific duty to the individual seeking torecover in tort, as opposed to a duty owed to thepublic at large. Unfortunately, there are a varietyof conflicting principles, such as those at work inthe Brown case, including sovereign immunity,concepts of reliance, and questions about whetherthe defendant increased the risk of injury to theplaintiff. See generally, Marcus, Washington'sSpecial Relationship Exception to the Public DutyDoctrine, 64 Wash. L. Rev. 401 (1989); Gilbert v.Billman Construction, Inc., 371 N.W.2d 542(Minn. 1985).One particularly famous case is Riss v. City ofNew York, 240 N.E.2d 860 (N.Y. 1968), in whichthe plaintiff (Riss) repeatedly complained to policeabout the threats made by her boyfriendPugachCan attorney, no less. Pugach hired thugsto throw lye in her face, blinding her. She suedthe city, claiming the failure to protect her fromPugach constituted actionable negligence. Thoughthe court rejected her claim, she eventually gotsomething out of the caseCshe married Pugachafter he was released from prison. The marriagelasted, despite Pugach's carrying on a five-yearaffair with a woman who accused him ofthreatening to kill her when she dumped the 70-year-old for a younger man. See (filed under“Truth is Stranger than Fiction”) Hays, "QueensMan Acquitted of Threats to Lover Blinded Wifewith Lye Before Marrying Her," (Bergen County)RECORD, May 1, 1997, page A8.CodaWrongful TerminationA final illustration of the interplay of contractand tort is found in the area of wrongfultermination. If an employee claims he wasunjustly fired by his employer, what kind of claimis it? Is it simply a breach of contract action? Or ifthe motives for the firing are illegitimate, does itconstitute a tort of some kind?The common law rule was that all such caseswere governed by contract; if the employer andthe employee had entered into a contract whichpromised employment for a specific duration (orindefinitely), then the employer could notterminate the employee except for "just cause,"i.e., for a breach of the employment agreement bythe employee. On the other hand, if there was nocontract, then the employee was "terminable atwill." (Does this initial classification as a contractaction sound familiar?)Beginning about 25 years ago, courts began toentertain suits for "wrongful termination" basedupon either a more liberal view of contract (oralcontracts would suffice; and a generalunderstanding of a permanent employment mightcreate an obligation to fire only for just cause), orby articulating tort doctrines that would create aduty even in the absence of a contract. Forexample, if an employer fired an employee forserving as a juror, or fired the employee forreporting illegal conduct by the employer, courtsheld that public policy required protection of theemployee.Some courts began to create a larger body ofdoctrine based upon so-called "bad faith" practicesin a variety of contractual relations:insurer/insured; lender/borrower; landlord/tenant;employer/employee. Under UCC § 1-203, forexample, all contracts are deemed to contain acovenant of good faith and fair dealing. Even ifthe transaction in question is not governed by theUCC, the plaintiff has frequently been successfulin arguing that large institutions (insurancecompanies, banks, employers) should be bound bythe same standard. Thus, an employee (or bankcustomer or insured) seeking a recovery from hisformer contracting party argues that even if hecannot prove a breach of contract, he is entitled torecover damages if the defendant exhibited "badfaith."The rise (and retrenchment) of this concept of"bad faith" is summarized in Foley v. InteractiveTARASOFF V. REGENTS OF UNIVERSITY OF CALIFORNIA

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 383Data Corp., 47 Cal. 3d 654, 254 Cal. Rptr. 211(1988). Washington employment law issummarized in Thompson v. St. Regis Paper Co.,102 Wn. 2d 219, 685 P.2d 1051 (1984).For a recent review of wrongful terminationcases, see Grass, Legal Reasoning and WrongfulDischarge Tort Law in California, 26 CAL. W. L.REV. 69 (1989); Notes, 6 Alaska L. Rev. 265(1989); Symposium issue, 11 INDUS. REL. L.J. 1(1989). The U.S. Supreme Court has held that aunion member's wrongful discharge claims are notpre-empted by federal labor law: Lingle v. Norge,108 S. Ct. 1877 (1988).A recent example of Washington law on thesubject of wrongful termination can be found inFord v. Trendwest Resorts, Inc., 146 Wn.2d 146,43 P.3d 1223 (2002). In that case, Ford sued hisformer employer for wrongful discharge when,after returning from an alcohol rehabilitationprogram, the former employer refused to rehirehim. Ford argued that the resort had promised torehire him as an at-will employee after histreatment program ended. The court agreed withFord; however, much to his dismay, they awardedhim only nominal damages.The court‟s rationale was that at-willemployment, by nature, does not involve anyexpectation of future employment. Therefore,expectation damages for future lost earningswould be inappropriate where an expectation didnot exist. Though the resort promised to rehireFord as an employee, the at-will nature of hisemployment had not changed. In accordance withprinciples of contract law, the court held that onlynominal damages were appropriate.

RESCUERS, JUSTIFIABLE RELIANCE, REMOTE PLAINTIFFS 387PART IVINTENTIONAL TORTS

388 12. INTENTIONAL TORTS: THE PRIMA FACIE CASEChapter 12Intentional Torts: The Prima Facie CaseIntroductionIntentional torts are among the oldest causesof action recognized in tort law. Although thenegligence principle has come to dominate tortlaw, this is a relatively recent development,attributable in part to the importance of insuranceas a compensation mechanism, 82 and in part to theutility of the negligence test as a means ofbalancing competing social interests. Relativelylittle of the personal injury practice of modernlawyers is taken up by intentional torts. However,for a variety of reasons they figure prominently inmost law school torts courses. 83 Thus, moststudents' education would be incomplete withoutan understanding of intentional torts, despite thefact that they may never see one again, except(possibly) on a bar exam.The unique thing about intentional torts is theemphasis upon the defendant's state of mind.Whereas in the negligence case the jury isinstructed to judge the defendant's conduct by anobjective standard, i.e., the hypotheticalreasonably prudent person, in intentional tortscases the jury must ordinarily find that thedefendant subjectively intended to inflict a certainconsequence upon the plaintiff. It must be borne inmind that the plaintiff can rarely provide tangibleproof of the defendant's state of mind other thanby showing what the defendant did, and asking the82Insurance is important in part because it usuallyprovides coverage only for "accidental" harms. Intentionaltorts are frequently excluded from coverage because theydo not meet the requirement that the loss arise from an"occurrence," which is typically defined as "an accident ora happening ... which unexpectedly and unintentionallyresults in personal injury...."83One commonly cited reason is that the rules forintentional torts are relatively clear, and thus easier for thebeginning student to understand and apply. Relative toproduct liability law, this statement is certainly true.jury to infer his intent. The defendant can usuallyclaim that the injury to the plaintiff was accidentalrather than intentional, and the plaintiff cannotoffer an X-ray of the defendant's brain as proof.Nonetheless, the jury must find as a fact (basedupon their experience in the world and theircommon sense) that the defendant's conduct wasintentional (or in some cases highly reckless)rather than merely careless before the legalrequirements of the intentional tort are met.Once the plaintiff has met his burden of proof,the defendant can always claim that his conductwas "privileged" or justified, and thereby escapeliability.The "rules" governing intentional torts arerelatively well settled; they are set forth in theRESTATEMENT (2D) OF TORTS. Their application,however, is often quite complex, as the succeedingcases demonstrate.Restatement (2d) of Torts§ 8A. IntentThe word "intent" is used throughout theRESTATEMENT of this Subject to denote that theactor desires to cause consequences of his act, orthat he believes that the consequences aresubstantially certain to result from it.§ 13. Battery: Harmful ContactAn actor is subject to liability to another forbattery if(a) he acts intending to cause a harmful oroffensive contact with the person of the otheror a third person, or an imminentapprehension of such a contact, and(b) a harmful contact with the person ofthe other directly or indirectly resultsRESTATEMENT (2D) OF TORTS

§ A. BATTERY AND ASSAULT 389§ 15. What Constitutes Bodily HarmBodily harm is any physical impairment of thecondition of another's body, or physical pain orillness.§ 18. Battery: Offensive Contact(1) An actor is subject to liability to anotherfor battery if(a) he acts intending to cause a harmful oroffensive contact with the person of the otheror a third person, or an imminentapprehension of such a contact, and(b) an offensive contact with the person ofthe other directly or indirectly results.(2) An act which is not done with the intentionstated in Subsection (1,a) does not make the actorliable to the other for a mere offensive contactwith the other's person although the act involvesan unreasonable risk of inflicting it and, therefore,would be negligent or reckless if the riskthreatened bodily harm.§ 21. Assault(1) An actor is subject to liability to anotherfor assault if(a) he acts intending to cause a harmful oroffensive contact with the person of the otheror a third person, or an imminentapprehension of such a contact, and(b) the other is thereby put in suchimminent apprehension.(2) An act which is not done with the intentionstated in Subsection (1, a) does not make the actorliable to the other for an apprehension causedthereby although the act involves an unreasonablerisk of causing it and, therefore, would benegligent or reckless if the risk threatened bodilyharm.§ 35. False Imprisonment(1) An actor is subject to liability to anotherfor false imprisonment if(a) he acts intending to confine the otheror a third person within boundaries fixed bythe actor, and(b) his act directly or indirectly results insuch a confinement of the other, and(c) the other is conscious of theconfinement or is harmed by it.(2) An act which is not done with the intentionstated in Subsection (1, a) does not make the actorliable to the other for a merely transitory orotherwise harmless confinement, although the actinvolves an unreasonable risk of imposing it andtherefore would be negligent or reckless if the riskthreatened bodily harm.§ 36. What Constitutes Confinement(1) To make the actor liable for falseimprisonment, the other's confinement within theboundaries fixed by the actor must be complete.(2) The confinement is complete althoughthere is a reasonable means of escape, unless theother knows of it.(3) The actor does not become liable for falseimprisonment by intentionally preventing anotherfrom going in a particular direction in which hehas a right or privilege to go.§ 46. Outrageous Conduct Causing SevereEmotional Distress(1) One who by extreme and outrageousconduct intentionally or recklessly causes severeemotional distress to another is subject to liabilityfor such emotional distress, and if bodily harm tothe other results from it, for such bodily harm.(2) Where such conduct is directed at a thirdperson, the actor is subject to liability if heintentionally or recklessly causes severe emotionaldistress(a) to a member of such person'simmediate family who is present at the time,whether or not such distress results in bodilyharm, or(b) to any other person who is present atthe time, if such distress results in bodilyharm.§ 63. Self-Defense by Force not ThreateningDeath or Serious Bodily Harm(1) An actor is privileged to use reasonableforce, not intended or likely to cause death orserious bodily harm, to defend himself againstunprivileged harmful or offensive contact or otherbodily harm which he reasonably believes thatanother is about to inflict intentionally upon him.(2) Self-defense is privileged under theconditions stated in Subsection (1), although theactor correctly or reasonably believes that he canavoid the necessity of so defending himself,RESTATEMENT (2D) OF TORTS

390 12. INTENTIONAL TORTS: THE PRIMA FACIE CASE(a) by retreating or otherwise giving up aright or privilege, or(b) by complying with a command withwhich the actor is under no duty to comply orwhich the other is not privileged to enforce bythe means threatened.§ 65. Self-Defense by Force ThreateningDeath or Serious Bodily Harm(1) Subject to the statement in Subsection (3),an actor is privileged to defend himself againstanother by force intended or likely to cause deathor serious bodily harm, when he reasonablybelieves that(a) the other is about to inflict upon himan intentional contact or other bodily harm,and that(b) he is thereby put in peril of death orserious bodily harm or ravishment, which canbe safely be prevented only by the immediateuse of such force.(2) The privilege stated in Subsection (1)exists although the actor correctly or reasonablybelieves that he can safely avoid the necessity ofso defending himself by(a) retreating if he is attacked within hisdwelling place, which is not also the dwellingplace of the other, or(b) permitting the other to intrude upon ordispossess him of his dwelling place, or(c) abandoning an attempt to effect alawful arrest.(3) The privilege stated in Subsection (1) doesnot exist if the actor correctly or reasonablybelieves that he can with complete safety avoid thenecessity of so defending himself by(a) retreating if attacked in any placeother than his dwelling place, or in a placewhich is also the dwelling of the other, or(b) relinquishing the exercise of any rightor privilege other than his privilege to preventintrusion upon or dispossession of hisdwelling place or to effect a lawful arrest.§ A. Battery and AssaultIntroductory Note. In Dickens v. Puryear,already considered in Chapter Seven, there is agood introduction to the general requirements ofbattery and assault.ROGERS v. LOEWS L'ENFANTPLAZA HOTEL526 F. Supp. 523 (D.C. D.C. 1981)Joyce Hens GREEN, District JudgePlaintiff, Norma Rogers, alleges in hercomplaint that while employed by the defendantLoews L'Enfant Plaza Hotel (Hotel) she wassubjected to physical and emotional harassment byher superiors. Claiming that defendants' conducthas deprived her of rights guaranteed under theConstitution and federal, local and common law,she seeks monetary, declaratory and injunctiverelief. Motions to dismiss are presently before thecourt. A recitation of the allegations is germane tothe rulings on those motions.In September, 1979, plaintiff was hired by thedefendant Hotel as Assistant Manager of theGreenhouse Restaurant. Defendant JamesDeavers, Manager of that restaurant, wasplaintiff's immediate supervisor with whom shewas required to work closely in order to assure thesmooth operation of the restaurant. Plaintiffalleges that after being employed a few weeks,Deavers began to make sexually oriented advancestoward her, verbally and in writing, whichextended over a period of two months. Thedefendant would write her notes and letters,pressing them into her hand when she was busyattending to her duties in the restaurant, or placingthem inside menus that plaintiff distributed topatrons of the restaurant, or even slipping theminto plaintiff's purse without her knowledge.Plaintiff further claims that defendant wouldalso telephone her at home or while she was onduty at the restaurant, which conversationsincluded sarcastic, leering comments about herpersonal and sexual life. Plaintiff was frightenedROGERS V. LOEWS L’ENFANT PLAZA HOTEL

§ A. BATTERY AND ASSAULT 391and embarrassed by this defendant's actions anduncertain as to how she could protect herself. Shecontends that she continually rejected hissuggestions and rebuffed his advances by tellingdefendant that she was not interested in himpersonally, and that his suggestions and advanceswere distressful and unwanted.During this period, plaintiff received what sheconsidered to be an abusive and violent telephonecall from defendant Deavers' wife, who hadapparently discovered a letter written by herhusband to the plaintiff. Ms. Deavers warnedRogers not to become involved with her husband.Extremely disturbed by this call, plaintiff urgeddefendant to tell his wife that there was norelationship, other than a working one.Plaintiff avers that for a short time after thetelephone incident between herself and Ms.Deavers, the advances ceased, but soon theyresumed again. This time in addition to leavingmore notes, Deavers would pull at plaintiff's hair,touch her and try to convince her to spend a nightor take a trip with him. The complaint states thathe offered her gifts and favors and at times usedabusive crude language, stating that he found herattractive and would never leave her alone.The explicit sexual advances ceased at the endof November, but then the employmentatmosphere and working conditions at theGreenhouse became difficult and veryuncomfortable according to plaintiff. DefendantDeavers would sometimes exclude her frommeetings of the Greenhouse staff; he suggested tothe staff that plaintiff was unhappy with her joband might not stay; he used abusive language,belittling plaintiff in the presence of the staff; herefused to cooperate with her or share necessaryinformation on occasion. Plaintiff claims hegenerally made it difficult for her to perform herjob.Plaintiff attempted to arrange a meeting withdefendant Randy Gantenbein, the Hotel's Foodand Beverage Manager, who had authority toresolve staff problems in the Greenhouse, in orderto discuss defendant Deavers' conduct. She assertsGantenbein avoided her and for three weeksdeclined to meet her. Near the end of this period,Deavers advised Rogers that defendantGantenbein intended to discharge both Deaversand Rogers. After pursuing the matter, plaintiffwas able to meet with Gantenbein in January,1980, but only after the Hotel Manager suggestedhe do so. At that time, plaintiff states sheexplained the atmosphere and working conditionsin the restaurant beginning with defendantDeavers' past sexual advances. DefendantGantenbein denied he had any intention ofdischarging plaintiff as Deavers had warned, butacknowledged that he had known, prior to theirmeeting, about Ms. Deavers' telephone call toplaintiff in mid-October. 1 Gantenbein, accordingto plaintiff, advised her to be patient and to waitand see if the situation would improve.Plaintiff's allegations continue that by the endof February, 1980, defendant Deavers notified herthat he would do everything in his power to haveher fired. Plaintiff contacted her attorney andrequested Gantenbein to meet with him, whichGantenbein refused to do. The next dayGantenbein asked plaintiff to take an eveningposition with the Hotel, noting that it was obviousthat things would not work out between plaintiffand defendant Deavers. She refused, againrequesting that the Hotel management or itsattorney promptly meet with her attorney, but therequest was denied.Plaintiff and her counsel eventually met withHotel management on March 14, 1980. By a letterdated March 17, attorneys for the Hotel advisedplaintiff that they had "admonished andreprimanded" Deavers. Hotel management,however, saw no reason to separate the twoemployees, and insisted that plaintiff report backto work with defendant Deavers. They advisedRogers that the company would "monitor" therelationship through weekly meetings. Plaintiffrejected this solution.As an alternative, the Hotel offered to separatethe two by transferring plaintiff to a higher payingposition as night Room Service Manager with theHotel. Plaintiff rejected this offer also. The Hotelrefused to transfer defendant Deavers to a nightposition. Plaintiff thereafter filed a complaintagainst defendants with the Equal EmploymentOpportunity Commission (EEOC) on March 28,1Plaintiff alleges that other supervisory personnel atthe Hotel also knew of defendant Deavers' conduct towardplaintiff, but had taken no action to prevent it. Plaintifffurther argues that defendant Deavers had engaged insexually harassing conduct in the past with other femaleemployees of the Greenhouse.ROGERS V. LOEWS L’ENFANT PLAZA HOTEL

392 12. INTENTIONAL TORTS: THE PRIMA FACIE CASE1980. 2Essentially then, the complaint before theCourt alleges that defendant Deavers withknowledge of defendant Gantenbein and othersupervisory employees at the Hotel willfully andwith premeditation forced himself on plaintiff andattempted to force her either to submit to hisimportunings or lose her employment. She assertsthat she has been severely damaged both mentallyand physically by the conduct described above inviolation of rights guaranteed her by 42 U.S.C. §§1981 and 1983 and by the District of ColumbiaHuman Rights Act, D.C. CODE ANN. § 1-2501 etseq. (formerly § 6-2201 et seq.). Plaintiff furtherclaims that defendants engaged in tortiousconduct, specifically 1) invasion of plaintiff's rightto privacy at her home, in her place ofemployment, and in her personal life; 2) inflictionof extreme emotional distress; 3) assault andbattery. The corporate defendants, it is charged,failed to exercise proper supervision and controlover their employees, thereby causing plaintiffinjury and making defendants jointly and severallyliable to plaintiff.Defendants have presented motions to dismisspursuant to the FEDERAL RULES OF CIVILPROCEDURE 12(b)(6), 12(b)(1), and for partialsummary judgment pursuant to Rule 56, as well asa motion to strike or dismiss. Each motion will beconsidered separately.Pursuant to Rule 12(b)(6) of the Federal Rulesof Civil Procedure, defendants have moved todismiss on the following grounds: (a) thecomplaint fails to state a claim upon which reliefcan be granted under Section 2000e-2(a) of Title42 of the United States Code and Section 1-2512(1) (formerly § 6- 2221(a) (1)) of the Districtof Columbia Human Rights Act; and (b) thecomplaint fails to state a claim upon which reliefcan be granted under District of Columbiacommon-law principles of tort.2For the purposes of a motion todismiss, the material allegations of thecomplaint are taken as admitted. And, thecomplaint is to be liberally construed inEEOC has twice issued and twice withdrawn a Noticeof Right to Sue. The case is still pending before the EEOC.Ifavor of plaintiff." 3 A complaint "shouldnot be dismissed for insufficiency unlessit appears to a certainty that plaintiff isentitled to no relief under any state offacts which could be proved in support ofthe claim. Mere vagueness or lack ofdetail is not ground for a motion todismiss.... 4 * * *(b) Common-Law Tort Claims* * *Assault & Battery: It is elemental that assaultis a tort which protects a plaintiff's "interest infreedom from apprehension of a harmful oroffensive contact with the person" 12 and battery isthe "interest in freedom from intentional andunpermitted contacts with the plaintiff'sperson...." 13 One can be subject to liability toanother for assault if:(a) he acts intending to cause aharmful or offensive contact with theperson of the other or a third person, or animminent apprehension of such a contact,and(b) the other is thereby put in suchimminent apprehension. 14A defendant can be liable for battery if therequirements of (a) are met and3(b) an offensive contact with theperson of the other directly or indirectlyJenkins v. McKeithen, 395 U.S. 411, 421, 89 S. Ct.1843, 1848, 23 L. Ed. 2d 404, reh. denied 396 U.S. 869, 90S. Ct. 35, 24 L. Ed. 2d 123 (1969).42A J. MOORE, FEDERAL PRACTICE P 12.08 (2d ed.1981).121314W. PROSSER, supra note 7, § 10, at 37.Id. at 34.RESTATEMENT OF (SECOND) TORTS § 21 (1979). Seealso Madden v. D.C. Transit System, Inc., D.C. App., 307A.2d 756 (1973).ROGERS V. LOEWS L’ENFANT PLAZA HOTEL

§ A. BATTERY AND ASSAULT 393results. 15To constitute the tort of assault, theapprehension must be one which would normallybe aroused in the mind of a reasonable person andapparent ability and opportunity to carry out thethreat immediately must be present. The mentalinjury which results could include, for example,fright or humiliation. 16 Here, plaintiff Rogers hasasserted that she was frightened and embarrassedby defendant Deavers' actions, complaint 17, andwas put in imminent apprehension of an offensivecontact even though, or especially because, theywere in a public restaurant, and she wasattempting to perform her duties of employment."To be held liable for assault, the defendantmust have intended to interfere with the plaintiff'spersonal integrity...." 17 Plaintiff alleges thatalthough she expressed to defendant Deavers thathis suggestions and advances were distressful andunwanted, he continued to engage in that conduct.Complaint 17 & 30. In construing plaintiff'spleadings as required in a motion to dismiss,plaintiff has made adequate claims to defeat amotion to dismiss her assault cause of action.To constitute the tort of battery, a defendantcan be found liable for any physical contact withthe plaintiff which is offensive or insulting, as wellas physically harmful. Of primary importance insuch a cause of action is the absence of consent tothe contact on the part of the plaintiff, rather thanthe hostile intent of the defendant, although intentis required. The intent, however, is only the intent"to bring about such a contact." 18Here, clearly, an absence of consent has beenasserted, since plaintiff specifically told Deaversthat his advances were unwanted. Plaintiff alsorecites a touching, which included pulling her hair,and that Deavers intended to bring about thisconduct. Complaint 17, 19 & 30. These15RESTATEMENT OF TORTS (SECOND) § 18 (1979). Seealso Jackson v. District of Columbia, D.C. App., 412 A.2d948 (1980).161718W. PROSSER, supra note 7, § 10, at 38-39.Id. at 40-41.Id. at 35-37. See also Madden v. D.C. Transit System,Inc., D.C. App., 307 A.2d 756, 757 (1973).allegations are sufficient to survive the motion todismiss as to the battery claim.Infliction of Emotional Distress: Plaintiff'sthird and final tort claim, infliction of emotionaldistress, can result from either intentional ornegligent conduct. Negligent infliction ofemotional distress, recognized in the District ofColumbia, 19 requires a physical injury, 20 whereasintentional infliction of emotional distress, 21 alsorecognized in the District of Columbia, 22 allowsrecovery in the absence of physical impact. 23Since plaintiff has alleged only intentional tortiousacts in her complaint, only intentional infliction ofemotional distress will be considered.Clark v. Associated Retail Credit Men, 105F.2d 62 (D.C. Cir. 1939), the "landmark case inthis jurisdiction" 24 states that:19The law does not, and doubtlessshould not, impose a general duty of careto avoid causing mental distress. Id. at 64.(However) one who, without just cause orexcuse, and beyond all the bounds ofdecency, purposely causes a disturbanceof another's mental and emotionaltranquility of so acute a nature thatharmful physical consequences might benot unlikely to result, is subject to liabilityin damages for such mental and emotionaldisturbance even though no demonstrableWaldon v. Covington, D.C. App., 415 A.2d 1070,1076 (1980), citing Perry v. Capital Traction Co., 59 App.D.C. 42, 32 F.2d 938, cert. denied, 280 U.S. 577, 50 S. Ct.31, 74 L. Ed. 627 (1929).20Gilper v. Kiamesha Concord, Inc., D.C. App., 302A.2d 740, 745 (1973).21Intentional infliction of emotional distress is a"comparatively recent development in state law." Farmerv. United Brotherhood of Carpenters & Joiners, 430 U.S.290, 97 S. Ct. 1056, 51 L. Ed. 2d 338 (1977).22Waldon v. Covington, 415 A.2d at 1070; Shewmakerv. Minchew, 504 F. Supp. 156 (D.D.C. 1980); Clark v.Associated Retail Credit Men, 105 F.2d 62 (D.C.Cir.1939).23Waldon v. Covington, 415 A.2d at 1076; Shewmakerv. Minchew, 504 F. Supp. at 163.24Waldon v. Covington, 415 A.2d at 1077.ROGERS V. LOEWS L’ENFANT PLAZA HOTEL

394 12. INTENTIONAL TORTS: THE PRIMA FACIE CASEphysical consequences actually ensue. Id.at 65.For a prima facie case to be made out, thetortfeasor's conduct must be "wanton, outrageousin the extreme, or especially calculated to causeserious mental distress." Shewmaker v. Minchew,504 F. Supp. at 163.This liability "clearly does not extendto mere insults, indignities, threats,annoyances, petty oppressions, or othertrivialities;" it is imposed only when theconduct goes "beyond all possible boundsof decency and (is) regarded as atrociousand utterly intolerable in a civilizedcommunity." Waldon v. Covington, 415A.2d at 1076.Severe emotional distress must have occurredand the conduct must have been intentional.Of course, subjective intent can rarelybe proven directly; therefore, the requisiteintent must be inferred, either from thevery outrageousness of the defendant'sacts or, for example, when thecircumstances are such that "anyreasonable person would have known that(emotional distress and physical harm)would result...." Id. at 1077.The court in Doyle v. Continental Air Lines,No. 75 C 2407 (N.D. Ill. Oct. 29, 1979), a sexualharassment case brought under Title VII andvarious common law claims, including inflictionof emotional distress, discussed the tort in thecontext of an advertising campaign the plaintiffairline attendants felt had sexual overtones whichencouraged sexual harassment on the job, as wellas in their personal lives. Plaintiffs werefrequently exposed to comments which, it wasasserted, the advertising campaign and slogan,"We move our tail for you" had prompted.Defendants' motion for summary judgment wasgranted with the holding that the insultingdemeaning and harassing remarks provoked byContinental's advertising campaign wereinsufficient to establish that defendant's conductwas extreme and outrageous. In that case,however, only insulting demeaning and harassingremarks were alleged, whereas in this case, Rogersclaims she has been subjected not only to that typeof remark, but also to abusive language andphysical advances from her direct supervisorwhich have resulted in harmful emotional, as wellas physical, consequences. 25 Additionally, plaintiffalleges essentially that she left her employment asa result of defendant Deavers' conduct.In a case somewhat similar to the instant one,but not concerning sexual harassment specifically,Beidler v. W. R. Grace, Inc., 461 F. Supp. 1013(E.D. Pa. 1978), aff'd mem., 609 F.2d 500 (3d Cir.1979), a male plaintiff failed to state a cause ofaction for intentional infliction of emotionaldistress when he alleged harassment by, inter alia,exclusion from meetings necessary to theperformance of his job, failure to receivecommunications concerning his workperformance, and intimations that his newassistant would replace him. This case is clearlydistinguishable because the extreme conductalleged by Rogers deals not only with interferencewith her personal as well as professional life, butadds the dimension of sexual harassment.The plaintiff further states that she sufferedinfliction of emotional distress as a result ofintentional conduct by the defendants. Complaint 41 & 30. Her assertion of fright andembarrassment resulting from defendant Deavers'actions are added to her notification to Deaversthat his suggestions and advances were distressfuland unwanted; yet, she says he persisted evenwhen it appeared the Hotel management knew ofthe problem. Id. 17, 19, 23 & 24. He excludedher from meetings of the staff, suggested that shewas unhappy with her job and might not stay, usedabusive language and belittled her in the presenceof the staff, and did not share necessaryinformation with her. Id. 20. Further, Deaversadvised her he would do everything in his powerto have her fired from her position. Id. 25.Alleging not only difficulty in discussing herproblems with Hotel management, but also inarranging meetings between the two parties andtheir attorneys, Id. 32, and in attempting toresolve the problem over a period of months,plaintiff contends that at no time did the employeroffer to remove defendant Deavers from hisposition as manager of the Greenhouse. Id. 35.25It should also be noted that the Court is considering amotion to dismiss and not a summary judgment motion asin Doyle v. Continental Air Lines.ROGERS V. LOEWS L’ENFANT PLAZA HOTEL

§ A. BATTERY AND ASSAULT 395This conduct, she claims, precipitated the filing ofher complaint with EEOC and necessitated herrefusal to return to working conditions she foundunacceptable at the Greenhouse.In her complaint, the plaintiff has clearlyalleged conditions and circumstances which arebeyond mere insults, indignities and pettyoppressions and which, if proved, could beconstrued as outrageous. Emotional distress andphysical harm could reasonably result from theconduct of Deavers, as stated, as well as from theconduct of the Hotel management in response toplaintiff's plight. A cause of action for intentionalinfliction of emotional distress does, therefore, lie.§ B. False ImprisonmentMOORE v. PAY'N SAVECORPORATION20 Wash. App. 482, 581 P.2d 159 (1978)DORE, JudgePatricia Moore commenced this action againstPay'N Save Corporation and an unknownemployee alleging false imprisonment. WhatcomSecurity Agency was later joined as a third partydefendant by Pay'N Save. Moore appeals from thegranting of summary judgment in favor ofdefendants.IssuesISSUE 1: Are there material issues of fact as towhether Moore was falsely imprisoned?ISSUE 2: Does the record indicate as a matterof law that the security guard had reasonablegrounds under R.C.W. 4.24.220 to detain Moorefor investigation or questioning?ISSUE 1:DecisionSummary judgment should be granted only if,after considering all the pleadings, affidavits,depositions, and all reasonable inferencestherefrom in favor of the nonmoving party, a trialcourt determines that there is no genuine issue ofmaterial fact and the moving party is entitled tojudgment as a matter of law. LaPlante v. State, 85Wash. 2d 154, 531 P.2d 299 (1975); Wilber Dev.Corp. v. Les Rowland Constr., Inc., 83 Wash. 2d871, 523 P.2d 186 (1974); Balise v. Underwood,62 Wash. 2d 195, 381 P.2d 966 (1963). Summaryjudgment should not be used as a means to "cutlitigants off from their right to a trial...." Bernal v.American Honda Motor Co., 87 Wash. 2d 406,416, 553 P.2d 107 (1976). However, when amoving party demonstrates that there is nomaterial issue of fact, the nonmoving party maynot rest on the allegations in the pleadings butmust set forth specific facts demonstrating thatthere is a material issue of fact. LaPlante v. State,supra; Matthies v. Knodel, 19 Wash. App. 1, 573P.2d 1332 (1977).The pleadings, affidavits, and the depositionof Patricia Moore establish that while in a Pay'NSave store in Bellingham, Washington, Mooretook a can of hairspray to the checkout counter.She stood in line for several minutes, but laterdecided to leave. She put the hairspray on acounter inside the store and left the premises. Inher deposition, she testified as to what transpiredafter she exited from the store:Q. Well now, after you stepped outsidethe store, then what happened?A. Well, then I walked around to getin the car.Q. And then what?A. And this girl came up and tappedme on the back.Q. Were you already in the car when shetapped you?A. No.Q. Were you just getting in?A. Just at the end of the car.Q. So then what did you do?A. I turned around.Q. What did she say or what did you say?A. She had a wallet or a badge with aROGERS V. LOEWS L’ENFANT PLAZA HOTEL

396 12. INTENTIONAL TORTS: THE PRIMA FACIE CASEQ. Yes.wallet in her hand.A. And she asked me where thehairspray was.Q. What did you say?A. I said, "What hairspray?"Q. Then the girl who accosted youaccosted you how soon after you had putit down?A. Oh, as soon as I walked out thedoor and walked out of the buildingand up to the car and I got around tothe end of the car.Q. How long did all this take?A. I don't think any more than aboutfive seconds, maybe.Q. Now, what you are telling me is thatyou had already dismissed this incidentinvolving the spray from your mind infive seconds?A. Yes, because I wasn't thinkingabout that.Q. Then what did you say?A. And then she flipped my coat andshe said, "The hairspray you took outof the store."Q. Then what did you say?A. I said, "I never took any hairsprayout of the store."Q. Then what after that?A. Then she said, "Would youmind coming back in andshowing me where you put thehairspray?"Q. Do you say alright?A. I said, "Yes, certainly."I went back and showed herwhere I had put the hairspraydown.Q. Now, you saidA. By this time we had about adozen people standing there onthe street.Q. You said you had left the hairsprayin the store?A. Yes.Q. Then she said, "Would you mindcoming back in to show me whereyou put it?"A. Yes.Q. Did you mind going back in?A. No, I didn't mind.Q. Did you show her where you hadput it?A. Yes.Q. Was it still there?A. Yes.Q. Then what did she say or do?A. Then she just walked awayfrom me. This is what I didn'tmind.Q. Beg pardon?A. Then she just walked awayfrom me which that I didn't like.[sic] I don't mind going back andshowing her where the hairspraywas.Moore contends that these facts demonstrate amaterial issue of fact as to whether she was falselyimprisoned. We agree.In an action for false imprisonment, theplaintiff must prove that the liberty of his or herperson was restrained. See W. PROSSER, LAW OFTORTS § 11 (4th ed. 1971).A person is restrained or imprisonedwhen he is deprived of either liberty ofmovement or freedom to remain in theplace of his lawful choice; and suchrestraint or imprisonment may beaccomplished by physical force alone, orby threat of force, or by conductreasonably implying that force will beused. One acting under the apparentauthority or color of authority as it issometimes described or ostensibly havingand claiming to have the authority andpowers of a police officer, acts underpromise of force in making an arrest andeffecting an imprisonment.If the words and conduct are such asto induce a reasonable apprehension ofMOORE V. PAY’N SAVE CORPORATION

§ B. FALSE IMPRISONMENT 397force and the means of coercion are athand, a person may be as effectuallyrestrained and deprived of liberty as byprison bars. Kilcup v. McManus, 64 Wash.2d 771, 777-78, 394 P.2d 375, 379 (1964).If the undisputed facts indicate that the personvoluntarily accompanied a policeman or detectiveback to the store, the person is not restrained orimprisoned as a matter of law. James v.MacDougall & Southwick Co., 134 Wash. 314,235 P. 812 (1925). Likewise, the undisputed factsmay indicate that the person was restrained by athreat of force, actual or implied. Kilcup v.McManus, supra. However, whether a person hasa reasonable basis for believing he or she isrestrained or imprisoned is generally a question offact for the jury. Harris v. Stanioch, 150 Wash.380, 273 P. 198 (1928). See 32 AM. JUR. 2D FalseImprisonment § 10 (1967).It is essential ... that the restraint beagainst the plaintiff's will; and if he agreesof his own free choice to surrender hisfreedom of motion, as by remaining in aroom or accompanying the defendantvoluntarily, to clear himself of suspicionor to accommodate the desires of another,rather than yielding to the constraint of athreat, then there is no imprisonment.This gives rise, in borderline cases, toquestions of fact, turning upon the detailsof the testimony, as to what wasreasonably to be understood and impliedfrom the defendant's conduct, tone ofvoice and the like, which seldom can bereflected accurately in an appellaterecord, and normally are for the jury.(Footnotes omitted). W. PROSSER, LAW OFTORTS § 11 (4th ed. 1971).Here, the record indicates that after Moore leftthe store, she was approached by a security guardwho identified herself by displaying a badge. Theguard asked Moore where the hairspray was, andfollowing Moore's response, "What hairspray?"the security guard flipped open Moore's coat andsaid, "The hairspray you took out of the store."From these facts, we cannot say that as a matter oflaw Moore's freedom was not restrained. Thesecurity officer was acting under apparentauthority, i.e., claiming to have the authority andpower of a police officer. Although the securityofficer subsequently "requested" Moore toaccompany her back into the store, the "request"was implicitly coercive. Cf. State v. Buyers, 88Wash. 2d 1, 559 P.2d 1334 (1977). The question ofwhether Moore reasonably believed that herliberty was restrained was a question for the jury.Accordingly, the trial court erred in grantingsummary judgment on the ground that Moore wasnot imprisoned.ISSUE 2:The defendants contend that even if there is amaterial issue of fact as to whether Moore wasimprisoned, the security officer, as a matter of law,had a privilege pursuant to R.C.W. 4.24.220 todetain Moore for purposes of investigation. Wedisagree. R.C.W. 4.24.220 provides:In any civil action brought by reasonof any person having been detained on orin the immediate vicinity of the premisesof a mercantile establishment for thepurpose of investigation or questioning asto the ownership of any merchandise, itshall be a defense of such action that theperson was detained in a reasonablemanner and for not more than areasonable time to permit suchinvestigation or questioning by a peaceofficer or by the owner of the mercantileestablishment, his authorized employee oragent, and that such peace officer, owner,employee or agent had reasonablegrounds to believe that the person sodetained was committing or attempting tocommit larceny or shoplifting on suchpremises of such merchandise. As used inthis section, "reasonable grounds" shallinclude, but not be limited to, knowledgethat a person has concealed possession ofunpurchased merchandise of a mercantileestablishment, and a "reasonable time"shall mean the time necessary to permitthe person detained to make a statementor to refuse to make a statement, and thetime necessary to examine employees andrecords of the mercantile establishmentrelative to the ownership of themerchandise.Under this statute, the security officer had aqualified privilege to detain Moore if the officerhad "reasonable grounds" to believe that MooreMOORE V. PAY’N SAVE CORPORATION

398 12. INTENTIONAL TORTS: THE PRIMA FACIE CASEwas committing, or attempting to commit, larcenyor shoplifting. The question of whether thesecurity officer had reasonable grounds under thisstatute can be analogized to the question ofprobable cause. Generally, whether probable causeexists to justify an arrest or detention is a factualissue to be resolved by the jury. Smith v. Drew,175 Wash. 11, 26 P.2d 1040 (1933); Coles v.McNamara, 131 Wash. 377, 230 P. 430 (1924).The record is devoid of any evidence, such as anaffidavit of the security guard, which wouldenable the trial court to determine whether thesecurity guard "had reasonable grounds to believethat [Moore] was committing or attempting tocommit larceny or shoplifting." R.C.W. 4.24.220.Consequently, the record does not support thedefendants' contention that any detention wasprivileged under R.C.W. 4.24.220, i.e., that as amatter of law, the security guard had reasonablegrounds to believe that Moore was shoplifting.This issue must be resolved by testimony at trial.See generally Annot., 47 A.L.R. 3D 998 (1973).Reversed.FARRIS, C.J., and WILLIAMS, J., concur.Questions and Notes1. In the 1970s there were many publicizedcases dealing with "deprogramming" of membersof "cults." Civil claims against the deprogrammerswere often based on the tort of falseimprisonment. The courts struggled with the clashbetween freedom of religion and falseimprisonment on the one hand and charges ofpsychological imprisonment and mind control onthe other. See Shapiro, Of Robots, Persons, andthe Protection of Religious Beliefs, 56 S. CAL. L.REV. 1277 (1983), and Aronin, Cults,Deprogramming, and Guardianship: A ModelLegislative Proposal, 17 COLUM. J. L. AND SOC.PROBS. 163 (1982).§ C. Intentional Infliction ofEmotional Distress (Outrage)CORRIGAL v. BALL AND DODDFUNERAL HOME, INC89 Wash. 2d 959, 577 P.2d 580 (1975)STAFFORD, Associate JusticeAppellant Mary Jane Corrigal appeals the trialcourt's dismissal of her complaint for failure tostate a claim upon which relief can be granted. Wereverse and remand for trial.Appellant's son, David Brannan, drowned inthe Spokane River. Prior to recovery of his body,appellant contacted respondent Ball and DoddFuneral Home concerning cremation of the body.Respondent informed appellant that a suitablecontainer would be needed for interment of theremains after cremation and provided appellantwith a catalog from which to select a burial urn.Appellant selected an urn and paid respondent forit and the cost of cremation.David Brannan's body was subsequentlyrecovered and sent to respondent for cremation.Later, when appellant claimed her son's remains,she was given a sealed cardboard box. Appellanttook the box home where she opened it fullyexpecting to find the burial urn within which theashes should have been placed. Upon opening thebox appellant discovered a plastic sack. Believingthe sack to contain packing material protecting theburial urn, appellant placed her hands into thematerial to locate the urn. When she found no urn,appellant suddenly realized that what she hadmistakenly believed to be packing material was infact the cremated bones and residue of her son'sbody.Appellant filed this action against respondentalleging outrage, negligence and breach ofcontract. While denying most of appellant'sallegations, respondent admitted agreeing toperform funeral services, including cremation ofthe body and delivery of the son's ashes toappellant. Respondent also admitted returning thedecedent's ashes in a plastic bag encased within asealed cardboard box. Thereafter, respondentmoved for a "summary judgment" dismissingappellant's complaint. Although the motion wasMOORE V. PAY’N SAVE CORPORATION

§ B. FALSE IMPRISONMENT 399denominated "summary judgment", respondent'ssupporting memorandum makes it abundantlyclear that respondent actually sought "to test theplaintiff's allegations within the meaning of CR12(b)(6)."During argument on the motion, respondent'scounsel appears to have conceded his client'sfailure to provide the burial urn. Followingargument, the trial court entered a writtenmemorandum decision which granted respondent'smotion to dismiss the complaint after treating itessentially as a CR 12(b)(6) motion on thepleadings. Later, the court entered judgmentdismissing the complaint after noting respondenthad tendered the $64.00 already paid by appellantfor the missing urn. Appellant appealed thejudgment to the Court of Appeals which certifiedthe matter to this court.Initially respondent moves to dismiss theappeal as untimely. Although appellant's notice ofappeal was filed more than 30 days after entry ofthe memorandum decision, our rules require onlythat the notice be filed within 30 days of the entryof judgment. See RAP 2.1(a)(2); 5.2(a), (c); CR58. Appellant's notice of appeal was filed within14 days of the entry of judgment. Thus, the appealis timely and respondent's motion is denied.The only substantive issue before us iswhether the trial court erred in dismissing thecomplaint for failure to state a claim under CR. 1We have repeatedly said that a motion madepursuant to CR 12(b)(6) must be denied unless itappears beyond doubt that the plaintiff can proveno set of facts, consistent with the complaint,which would entitle the plaintiff to relief.Halverson v. Dahl, 89 Wash. 2d 673, 674, 574P.2d 1190 (1978); Berge v. Gorton, 88 Wash. 2d756, 759, 567 P.2d 187 (1977). Factual allegationsof the complaint must be accepted as true forpurposes of the CR 12(b)(6) motion. Berge v.Gorton, supra at 759, 567 P.2d 187; Stanard v.1Although the relief sought was originally called a"summary judgment" (which would be under CR 56), thecourt properly treated the motion as one made pursuant toCR 12(b)(6). Although the judgment was erroneouslydenominated a "summary judgment", the memorandumdecision makes it clear the dismissal was pursuant to CR12(b)(6) insofar as genuine issues of material fact werepresent. Thus, we review the action as a judgment ofdismissal under CR 12(b)(6). See 6 MOORE'S FEDERALPRACTICE P 56.02(3) at 56-33 (2d ed. 1976).Bolin, 88 Wash. 2d 614, 615, 565 P.2d 94 (1977);see also Contreras v. Crown Zellerbach Corp., 88Wash. 2d 735, 742, 565 P.2d 1173 (1977).Appellant has stated a cause of action fornegligent infliction of mental distress underHunsley v. Giard, 87 Wash. 2d 424, 553 P.2d 1096(1976). In Hunsley we said that a plaintiff whoundergoes mental suffering has a cause of action;that is, the defendant has a duty to avoid thenegligent infliction of such distress. Physicalimpact or threat of an immediate invasion of theplaintiff's personal security is no longer requiredto be alleged or proven. Hunsley v. Giard, supra at435, 553 P.2d 1096. Rather, the confines of adefendant's liability are now measured by thestrictures imposed by negligence theory, i.e.,foreseeable risk, threatened danger, andunreasonable conduct measured in light of thedanger. Hunsley v. Giard, supra at 435, 553 P.2d1096. Mental suffering, to be compensable,however, must at least be manifested by objectivesymptoms. Hunsley v. Giard, supra at 436, 553P.2d 1096.Here appellant alleged respondent agreed tocremate the body of her son, place his remains inan urn, and deliver the urn to her. She also allegedrespondent failed to provide the urn and failed todisclose the absence of the urn when appellantclaimed her son's remains. These derelictions arealleged to have caused appellant to handsiftthrough what appellant thought was "packingmaterial", resulting in her mental suffering whenshe discovered that the material was in fact thecremated remains of her son. She also alleged thefollowing objective physical manifestations whichaccompanied her mental suffering: loss of weight,loss of sleep, and general deterioration of herphysical well being.Based upon the foregoing, we cannot saybeyond doubt appellant will be unable to proveany set of facts which would entitle her to relieffor defendant's alleged negligent infliction ofmental distress. Having concluded appellant'scomplaint states a cause of action for negligentinfliction of mental distress, the trial court'sjudgment of dismissal under CR 12(b)(6) must bereversed and the action remanded for trial. It is soordered.WRIGHT, C.J., and ROSELLINI,HAMILTON, UTTER, BRACHTENBACH,HOROWITZ, DOLLIVER and HICKS, JJ.,concur.CORRIGAL V. BALL AND DODD FUNERAL HOME, INC

Chapter 13Defenses to Intentional TortsIntroductory Note. Just as with thenegligence cases, the defendant may admit that hisconduct met the legal definition that ordinarilyimposes liability, but deny that he is liable becauseof some defense available to him. With intentionaltorts defenses are often called "privileges"; thus,an assault to defend oneself is often termed a"privileged assault." This section considers thetypes of privileges that will justify or excuse theintentional infliction of harm upon another.§ A. ConsentIntroductory Note. To the extent that theplaintiff has consented to physical contact by theplaintiff, ordinarily it will not be consideredharmful or offensive, since the plaintiff has askedfor it. However, in some circumstances the lawwill refuse to recognize the plaintiff's consent as adefense. Consider the following two cases:STRAWN v. INGRAM191 S.E. 401 (W. Va. 1937)HATCHER, JudgeIn a fight between plaintiff, Ray Strawn, anddefendant, Arley Ingram, the former receivedpersonal injuries, for which he recovered ajudgment. Defendant alleges error.The physician who treated plaintiff after thefight testified without contradiction that his skullwas fractured, his brain severely concussed andpermanently contused, his face and head lacerated,and his vision permanently impaired. The plaintiff,aged 36 years, testified without contradiction that,since the assault, his head has pained himintermittently at the place where his skull wasfractured, that his eyes have ached almostcontinuously, that he can "scarcely see" with hisleft eye and can see "not more than half" with hisright eye, that he has been dizzy at times and"night after night" has not "known what sleep is."The verdict specified that actual damages wereassessed at $800 and punitive damages at $25.The points of error are that the trial court (1)struck from the record defendant's special plea ofjustification; (2) directed a verdict for plaintiff;(3) instructed the jury (in writing) it couldconsider as a part of plaintiff's damages anelement not proven; (4) refused to instruct on theburden of proof and preponderance of theevidence; and (5) orally instructed the jury to findboth compensatory and punitive damages forplaintiff.1. The plea was stricken because not filedwithin the time required by a court rule, asconstrued by the court. This action, however, neednot be considered seriously. Defendant testifiedunequivocally that he and plaintiff mutuallyagreed to fight. Defendant admitted strikingplaintiff on the head with an iron bar "not exactlyto protect" himself. He admitted intentionallygouging plaintiff's eye with his thumb and hittingplaintiff with his fist after having him on theground. Under such circumstances, the lawrecognizes no justification for the injuriesinflicted, and striking defendant's plea did notprejudice him. "If men fight the state will punishthem. If one is injured, the law will not listen to anexcuse based on a breach of the law.... The rule oflaw is therefore clear and unquestionable, thatconsent to an assault is no justification. Where acombat involves a breach of the peace, the mutualconsent of the parties thereto is generally regardedas unlawful, and as not depriving the injured party,or for that matter, each injured party, fromrecovering damages for injuries received from theSTRAWN V. INGRAM

§ A. CONSENT 401unlawful acts of the other." COOLEY ON TORTS(4th Ed.) § 97....2 and 4. Because the combat was by mutualconsent and no counterclaim was interposed,verdict for the plaintiff was properly directed. Thefact that plaintiff was also at fault is no defense.Brown v. Patterson, 214 Ala. 351, 108 So. 16, 47A.L.R. 1093. That fact may be taken by the jury topreclude or mitigate punitive damages but not toreduce actual damages. Grotton v. Glidden, 84 Me.589, 24 A. 1008, 30 Am. St. Rep. 413. Andbecause there was no material conflict in theevidence as to the infliction or the extent ofplaintiff's injuries, instruction on the burden ofproof and preponderance of the evidence wasuncalled for.* * *[The trial court had directed the jury to awardpunitive damages; the appellate court found thiserroneous, but since the jury only awarded $25 inpunitive damages, the appellate court simplydeducted that amount from the judgment andotherwise affirmed.]MILLER v. BENNETT190 Va. 162, 56 S.E.2d 217 (1940)HUDGINS, C.J., delivered the opinion of thecourtRaymond J. Bennett, Adm'r of Kerneda C.Bennett, instituted this action against Iva RodefferDavis Coffman to recover $15,000 damages forthe wrongful death of decedent. It was alleged thatthe death of decedent was the result of an abortion,or an attempted abortion, performed by defendantupon Mrs. Bennett. The trial court overruleddefendant's contention that proof that decedentconsented to the commission of the illegal orimmoral act barred recovery. The jury returned averdict for plaintiff in the sum of $8,000, on whichjudgment was entered.This action was commenced before Mrs.Coffman was convicted under Code (Michie's1942), sec. 4401, of an attempted abortion. Afterher conviction, and while she was confined in theState penitentiary, Francis S. Miller was appointedcommittee of her estate, and in his name the actionwas contested. There is no substantial differencein the evidence introduced in this case, and thatintroduced in the criminal case, which need not berepeated, as a full statement of it is found inCoffman v. Commonwealth, 188 Va. 553, 50S.E.(2d) 431, to which reference is made.The decisive question presented is, whetherconsent of a mature married woman to an attemptto produce an illegal abortion, resulting in death,bars recovery, under Lord Campbell's Act, in anaction by her administrator against the partyattempting to procure the abortion. This questionhas not been decided in this jurisdiction.It is conceded that if the consent of decedentto the commission of the immoral or illegal actwould have been a bar to decedent's right torecover had she survived, such consent barsrecovery in an action by her administrator for herwrongful death under the provisions of Code(Michie's 1942), secs. 5786, 5787. See Street v.Consumers Min. Corp., 185 Va. 561, 39 S.E.(2d)271, 167 A.L.R. 886, and cases there cited.The general rule, that a party who consents toand participates in an immoral or illegal act cannotrecover damages from other participants for theconsequence of that act, is well settled. The ruleitself, and the reasons therefore, are clearly statedin the often quoted excerpt from the opinion ofLord Mansfield, in Holman v. Johnson, 98 Eng.Rep. 1120, which is as follows:No Court will lend its aid to a manwho founds his cause of action upon animmoral or an illegal act. If, from theplaintiff's own stating or otherwise, thecause of action appears to arise ex turpicausa, or the transgression of a positivelaw of this country, there the Court sayshe has no right to be assisted. It is uponthat ground the Court goes; not for thesake of the defendant, but because theywill not lend their aid to such a plaintiff.So if the plaintiff and defendant were tochange sides, and the defendant was tobring his action against the plaintiff, thelatter would then have the advantage of it;for where both are equally in fault, potiorest conditio defendentis.* * *STRAWN V. INGRAM

402 13. DEFENSES TO INTENTIONAL TORTSThe principle applies to civil actions, whetherbased on tort or contract. When applied to actionsin tort, it is said that consent or participation in animmoral or unlawful act by plaintiff precludesrecovery for injuries sustained as a result of thatact, on the maxim volenti non fit injuria. It isconceded that Mrs. Bennett consented to andparticipated in the immoral and illegal act whenshe solicited the services of Mrs. Coffman andsubmitted herself to treatment to produce abortion.If the general rule is applicable, then this action isbarred.Appellee contends that there is an exceptionto the general rule, and cites numerous authoritiesto support his contention. Each is based on thereasons stated in 1 COOLEY ON TORTS, 4th Ed.,sec. 97, p. 326, thus: "The life of an individual isguarded in the interest of the state, and not in theinterest of the individual alone; and not his lifeonly is protected but his person as well. Consentcannot justify an assault.... Consent is generally afull and perfect shield when that is complained ofas a civil injury which was consented to.... But inthe case of a breach of the peace it is different. Thestate is wronged by this, and forbids it on publicgrounds. If men fight, the state will punish them.If one is injured, the law will not listen to anexcuse based on a breach of the law. There arethree parties here, one being the state, which forits own good, does not suffer the others to deal ona basis of contract with the public peace. The ruleof law is therefore clear and unquestionable, thatconsent to an assault is no justification."* * *The better reasoned cases support the viewthat no recovery can be had in such cases. Whileabortion was not involved in Levy v. Kansas City,93 C.C.A. 523, 168 F. 524, 22 L.R.A.(N.S.) 862,870, Judge Sanborn, after reviewing manyauthorities on consent to an illegal act, said: "Butthe maintenance of actions to recover moneys orproperty lost, or damages sustained, throughtransactions or contracts wherein the plaintiffswere guilty of moral turpitude, or of the violationof a general law passed to effectuate a publicpolicy, is prohibited by this rule, as well as themaintenance of actions upon contracts of thatnature."* * *In some states the anti-abortion statutes makethe woman who consents to the procurement of anabortion upon herself an accomplice, and in otherssuch a woman is not made an accomplice. Butwhether such a woman is or is not declared to bean accomplice is not regarded as material in a civilaction brought by her to recover damages forinjuries resulting from the abortion, or the illegalattempt to procure abortion.It appears from the opinion in Martin v.Morris, 163 Tenn. 186, 42 S.W.(2d) 207, that theTennessee statute does not make the woman whoconsents to take treatment for the purpose ofprocuring an abortion an accomplice. It was heldthat a woman of mature mind, who knew theserious consequences likely to result from suchtreatment, could not recover for personal injuriesresulting therefrom, on the ground that sheparticipated in an illegal or immoral act.* * *A number of cases are cited in the briefs inwhich a distinction is made between the purposeof an anti-abortion statute and assault and batteryand dueling statutes. These cases hold that theformer class of statutes are not designed for theprotection of the woman, but only of the unbornchild and through it society, while the assault andbattery, dueling, etc., statutes are designed for theprotection of the individuals concerned. Hencerecovery is allowed in one class of cases anddenied in the other. See Herman v. Julian, 117Kan. 733, 232 P. 864; Bowlan v. Lunsford, 176Okla. 115, 54 P.(2d) 666.However, we do not deny recovery in thiscase on the distinction between the two classes ofstatutes, but upon the ground that the plaintiffs'decedent, a mature married woman, was guilty ofmoral turpitude and participated in the violation ofa general anti-abortion statute, enacted toeffectuate a public policy.The judgment of the trial court is reversed, theverdict of the jury set aside, and final judgmententered for defendant.Reversed and final judgment.Questions and Notes1. Are Strawn and Miller reconcilable? If youbelieve they are not, which was (more) correctlydecided?MILLER V. BENNETT

§ B. DEFENESE OF SELF 4032. Athletic sports (e.g., football) consist of agreat deal of intentional physical contact - oftenquite painful, even injurious. What prevents aninjured player from suing for an intentional tort?See Hackbart v. Cincinnati Bengals, Inc., 601 F.2d516, cert. denied, 444 U.S. 931 (10th Cir. 1979),(football player sued for injuries sustained in afootball game, when a defensive end hit thereceiver after the play was essentially over; districtcourt found for the defendants; held, reversed).§ B. Defense of SelfCOTE v. JOWERS515 So. 2d 339 (Fl. 1987)NIMMONS, JudgeMary Bessent Cote, as the personalrepresentative of the Estate of Michael Bessent(plaintiff below), appeals from an adversejudgment entered upon a verdict in favor of theappellee/defendant. 84 This was a civil suit fordamages for the wrongful death of plaintiff'sdecedent, Michael Bessent, against the defendant,Michael Jowers, who the plaintiff claims eithercarelessly and negligently, or willfully,intentionally and maliciously, shot and killedBessent. The defendant answered, admitting thathe intentionally shot Bessent but claiming that hedid so in self defense.Appellant claims, among other things, that thetrial court erred in denying her motion for newtrial on the grounds that the verdict was contraryto the manifest weight of the evidence. Wedisagree.At the time of this unfortunate incident,Bessent was trespassing on the property of hissecond former wife, Deborah Bessent. He hadbeen harassing and cursing her and was abusive. 85He was told to leave. He did not. He remained inthe front yard with his motorcycle. When84Mary Bessent Cote was Michael Bessent's first wife.They had one child who survived Bessent's death.85At the time, there was an outstanding order enjoiningBessent from exercising visitation with his children if hehad consumed alcoholic beverages within 24 hours prior tosuch visitation. This was an unannounced visitation on aday that was not ordinarily one of his visitation days.appellee/Jowers arrived home and learned ofBessent's presence and of his offensive conduct,Jowers went out to the front yard and asked thatBessent leave. 86 Instead of leaving, Bessentapproached Jowers and shoved him. Jowersresponded by striking Bessent. The two menscuffled until Jowers was finally able to pinBessent to the ground. Jowers released Bessentwhen the latter agreed to calm down and leave.But as soon as Jowers released him, Bessent begankicking Jowers. Jowers ran into the house, closedthe door and told Deborah, to call the police. Sheand a neighbor, who had also witnessed thealtercation, already had the police on thetelephone.Bessent had chased Jowers to the house andwas yelling and trying to beat the front door down.Jowers obtained a pistol from his dresser drawer.He went to the front door, opened it slightly, toldBessent to leave the premises, told him that thepolice had been called and displayed the pistol.Instead of leaving, Bessent persisted andmanaged to force the front door open. Heapproached Jowers and backed Jowers all the wayacross the living room. Jowers was pointing thepistol at Bessent. While approaching Jowersmenacingly, Bessent taunted Jowers saying, "Whatare you going to do with that, big boy? Come on,come on." Jowers told Bessent not to come anycloser or he would pull the trigger. At that point,Bessent lunged at Jowers who pulled the trigger,fatally wounding Bessent in the chest.The above facts are uncontradicted. Clearly,the trial court did not err in rejecting the plaintiff'sargument that the verdict was contrary to themanifest weight of the evidence as that standardhas been articulated in Cloud v. Fallis, 110 So. 2d86Jowers was a Marine Corps sergeant who, at the time,was living on the subject premises. He and Deborah weresubsequently married.MILLER V. BENNETT

404 13. DEFENSES TO INTENTIONAL TORTS669 (Fla. 1959). See also Wackenhut Corporationv. Canty, 359 So. 2d 430 (Fla. 1978); 38 FLA. JUR.2D New Trial § 48. No citation of authority isneeded for the proposition that the law does notdemand that we employ heroic efforts at the riskof life and limb to protect those who would breakinto our homes and assault us.The appellant also complains of the trialcourt's denial of six requested jury chargesregarding "self defense" and "privilege." We findno error in such denial as the requestedinstructions are repetitive of those given by thecourt, inapplicable and unsupported by theevidence, or fail to accurately state the law.We have examined and find without merit theremaining points urged by the appellant.AFFIRMED.THOMPSON, J., concurs.SHIVERS, J., dissents with written opinion.SHIVERS, Judge, dissenting.I respectfully dissent.On September 4, 1984, appellee, MichaelJowers, intentionally shot and killed MichaelBessent in the home Bessent had shared with hiswife and children during his marriage to DeborahBessent. Bessent left surviving him three minorchildren, ages 5, 3, and 1, as well as his parents.Appellant, Mary Bessent Cote, 1 as the personalrepresentative of the estate of the deceased,Michael Bessent, appeals final judgment, afterjury verdict, in favor of Michael Jowers. Theoldest child, Brittany Bessent, is the daughter ofthe decedent and Mary Bessent Cote. The othersurviving children are the result of a marriagebetween the decedent and Deborah BessentJowers, who is now married to Michael Jowers.The estate, by Mrs. Cote, seeks damagesagainst Michael Jowers for the wrongful death ofMichael Bessent. The estate contends that thedefendant Michael Jowers either carelessly andnegligently, or willfully, intentionally, andmaliciously fired a gun at Michael Bessent,proximately causing his death. Jowers admits heintentionally shot Bessent, but he alleged belowthe following defenses: (1) self-defense; (2)trespass by Bessent; (3) violation of a restrictive1Mary Bessent Cote was married to Michael Bessentprior to his marriage to Deborah Bessent.court order prohibiting Bessent from coming onthe premises after consuming alcohol; (4) lack ofany justiciable issue of law or fact; (5) assumptionof the risk; and (6) privilege to use deadly force.At issue is whether the trial court erred in itsinstructions to the jury and whether the verdictwas contrary to the manifest weight of theevidence.During Michael and Deborah Bessent'smarriage, they and their two small children andChristopher Crews, Mrs. Bessent's child by a priormarriage, resided at 936 Player Road inJacksonville. Mr. Bessent was a lineman whoclimbed telephone poles and installed lines forcable television. After their divorce, Deborah andthe children continued to live on Player Road.Through Michael Bessent, Deborah Bessenthad met Michael Jowers, a 24-year-old Marinesergeant stationed at the Naval Air Station inJacksonville. Jowers' duties as a Marine Sergeantincluded attending monthly drill and predrillmeetings. When Jowers killed Bessent, Jowerswas living with Deborah Bessent in the house onPlayer Road. Jowers was also paying rent on aseparate apartment which, according to histestimony, he had to maintain until his lease hadexpired.There was evidence that a strainedrelationship had developed between Bessent andJowers. The apparent reason for this strain wasthat after Deborah Bessent divorced her husbandand began to cohabit with Jowers, she neverthelesscontinued something of a relationship withBessent. Bessent's visits to 936 Player Road afterthe divorce were fairly regular. Mrs. DeborahBessent testified:Question: Now, on how manyoccasions prior to this would Mr. Bessentcome to visit you or come to the houseand see you or whatever or talk to you orhow would that occur? How often wouldthat occur?Answer: Approximately every otherweekend and then sometimes he'd justpop over without - without me knowing.Question: Did he have a key to thehouse?Answer: No, sir.Question: Did you ever refuse himentry into the house when he wouldcome?COTE V. JOWERS

§ B. DEFENESE OF SELF 405Answer: No, sir.Jowers testified:Question: And you had been livingthere on Player Road at the House?Answer: That's right.Question: Was there any suggestion,Mr. Jowers, that Michael Bessent hadbeen seeing or living with Debbie whileyou were away?Answer: Yes, sir.Question: And where did you get theinformation from?Answer: Debbie told me.Question: And had that created anyanimosity between you and Debbie?Answer: Yes, sir.Question: Tell me what took place inthat regard.Answer: When I got back - I hadbeen back two or three days, and oneevening Debbie told me, said, "Baby, Igot something I've got to tell you."So we went back in the bedroom. Thekids were asleep. And she said, "Whileyou were gone," she said, "Mike cameover one night," said that he had tried toget her to go to bed with him, which hehad done before on numerous occasions.And she said he was saying, "Youremember how good it used to be betweenus."She said, "Yes, but it's over betweenus."He says, "Just give it one morechance."And she told me she saw this as achance to prove to him once and for allthat she didn't want him. And she went tobed with him.And he had said to her, he said, "Ifyou can make love to me and tell me thatyou don't love me, I'll leave you alone."He told her that, is what she told me.I believed her with all my heart.She said, "All right." And she did it.And she looked at him and said, "I don'tlove you no more. I love him."And he left very upset.Question: And this apparentlyoccurred during the time you were gone?Answer: That's right.Question: Well, did that create anadditional anger in your [sic] againstBessent?Answer: No, sir. I was mad atDebbie, because I'm a firm believer that aman can't go to bed with a woman unlessshe wants him to, see; unless she lets ithappen, whether she wants to or not,unless she lets it happen. I was mad at her.Question: Was that subject broughtup to Bessent or to you the night of theshooting?Answer: No, sir.According to Jowers' deposition testimony, onSeptember 4, 1984, Jowers returned to 936 PlayerRoad at approximately 8:00 p.m. from a meetingat the Naval Air Station and noticed MichaelBessent standing on the front porch. Jowers wentinto the house through the back door and askedDeborah what Bessent was doing at the house.Sheryl Young, a friend of Deborah's who wasvisiting the home at the time, informed Jowers thatBessent "just came over here causing trouble. Hehas been drinking, cussing at Debbie, aggravatingher." Jowers announced that he was going to havea talk with Bessent, and went out the front door towhere Bessent was standing beside his motorcyclein the front yard.Jowers said he told Bessent that Bessentshould not be visiting the children except onweekends when a visitation had been set up inadvance, and that he was not supposed to visitwhen he had been drinking. According to Jowers,Bessent had obviously been drinking. Theconversation lasted a minute or two, at whichpoint Jowers said Bessent stepped up to Jowersand pushed him in the chest with both hands.Jowers then hit Bessent, and the two men scuffledon the ground until Jowers pinned Bessent andended the fight. Jowers agreed to let Bessent up ifhe would calm down and leave the premises.Bessent agreed to leave but, upon rising, kicked atJowers. Jowers ran into the house, closed the door,and instructed Deborah to call the police. SherylYoung had already done so and had them on theline, she and Debbie having witnessed the scufflefrom a bedroom window.COTE V. JOWERS

406 13. DEFENSES TO INTENTIONAL TORTSBessent was still outside the house, but wasbeating on the front door and yelling. Jowers wentinto his bedroom, grabbed a loaded pistol from hisdresser drawer, returned to the wooden front doorof the house (which had been closed since Jowersreentered the house) and opened it slightly. Heagain told Bessent to leave, warned him that hehad called the police, and showed him the gun.Bessent then slammed into the door, forcing it toopen further, and entered the house. Jowerstestified that Bessent then approached him,causing him to back up across the living room.While approaching Jowers, Bessent said, "Whatare you going to do with that, big boy? Come on,come on." Jowers again told Bessent to leave.Bessent continued to approach, and Jowerscontinued to back up until he was into the kitchenarea. Jowers then told Bessent not to come anycloser or he would shoot him. At that point,Bessent (who was unarmed) "came at" him, andJowers shot Bessent in the chest, killing him.Jowers picked up the telephone and informed thepolice, who were still on the line, that he had shotBessent. The police arrived immediatelythereafter.The depositions of Sheryl Young and DeborahBessent were read into the record at trial. Thetestimony of both women was fairly similar toJowers' version of the facts. In addition, bothtestified that Bessent had been using foul languageand harassing Deborah prior to Jowers' arrival.Deborah testified that Bessent had been drinking,and that she had asked him to leave the house.Both Jowers and Deborah testified that Bessenthad stated on other occasions he was going to killJowers or have someone kill him, apparentlybecause he was jealous of the relationship betweenDeborah and Jowers. Jowers did not testify inperson; he relied instead on those portions of hisdeposition which were read into the record byappellant's attorney.After the jury had retired to deliberate, it sentout the following question to the trial judge:We would like to hear a clarificationof the law regarding self-defense and theright of privilege.Over appellant's objection to rereading onlythat portion of the charge, the jury was brought inand the court reread Jowers' requested juryinstructions (numbers 4 and 5), which were thesole instructions given on self-defense andprivilege:THE COURT: You may be seated.Members of the jury, your question hasbeen turned in to me and I believe itstates: "We would like to hear aclarification of the law regarding selfdefenseand the right of privilege." Is thatthe question to me?A JUROR: Yes.THE COURT: I am going to read to youthe instructions and law regarding selfdefenseand also privilege.A defense raised by MichaelJowers and is [sic] an issue inthis case, is whether MichaelJowers acted in self-defense. It isa defense if the death of MichaelBessent resulted from thejustifiable use of force likely tocause death or great bodily harm.The use of force likely tocause death or great bodily harmis justifiable only if MichaelJowers reasonably believes [sic]that the force is necessary toprevent imminent death or greatbodily harm to himself whileresisting any attempt to commitburglary upon any dwellingoccupied by him, or resisting anyattempt to commit a burglarywith intent to commit an assaultin any dwelling house occupiedby him.A person is justified in usingforce likely to cause death orgreat bodily harm if hereasonably believes that suchforce is necessary to prevent theimminent commission of aburglary with intent to commit anassault against himself oranother.However, the use of forcelikely to cause death or greatbodily harm is not justifiable ifyou find Michael Jowers initiallyprovoked use of force againsthimself, unless: in good faith,Michael Jowers withdrew fromphysical contact with MichaelBessent and indicated clearly toCOTE V. JOWERS

§ B. DEFENESE OF SELF 407Michael Bessent that he wantedto withdraw and stop the use offorce likely to cause death orgreat bodily harm, but MichaelBessent continued or resumed theuse of force.In deciding whether MichaelJowers was justified in the use offorce likely to cause death orgreat bodily harm, you mustjudge him by the circumstancesby which he was surrounded atthe time the force was used. Thedanger facing Michael Jowersneed not have been actual;however, to justify the use offorce likely to cause death orgreat bodily harm, theappearance of danger must havebeen so real that a reasonablycautious and prudent personunder the same circumstanceswould have believed that thedanger could be avoided onlythrough the use of that force.Based upon appearances,Michael Jowers must haveactually believed that the dangerwas real.If Michael Jowers wasattacked in his home or on hispremises, he had no duty toretreat and had the lawful right tostand his ground and meet forcewith force, even to the extent ofusing force likely to cause deathor great bodily harm, if it wasnecessary to prevent commissionof a forcible felony.Another defense raised byMichael Jowers which is an issuefor your determination is whetherMichael Jowers was privileged touse deadly force against MichaelBessent.The Florida Statute 782.02states, the killing of a humanbeing is justifiable homicide andlawful if necessarily done whileresisting an attempt to murder orcommit a felony upon thedefendant, or to commit a felonyin any dwelling house in whichthe defendant was at the time ofthe killing. Those are yourinstructions on self-defense andprivilege. You may -A JUROR: Your Honor -THE COURT: You can't ask anyquestions. You can return to the jury roomto deliberate. The only questions I cananswer are those questions that the jurysends out to me in written form.After retiring again, the jury asked a secondquestion:Is he within the law to kill in selfdefenseif he could have defended himselfotherwise?The trial judge then told the jury that since hehad already read the self-defense and privilegeinstructions twice, there was no other appropriatecomment he could make in response to thequestion. The jury returned a verdict in favor ofJowers. After final judgment, the court deniedappellant's motion for new trial.Jowers' intentional ending of a human life,through gunshot wounds fired at close range,warrants our close examination of the record. Inthis case there were six witnesses: Brian DeWittBessent, Brenda Hot, Mary Bessent Cote, MichaelJowers, Sheryl Young, and Deborah BessentJowers. Testimonies of Mr. Bessent, father of thedecedent, Mrs. Cote, first wife of the decedent,and Brenda Holt, sister of the decedent, were allbrief and not directly related to the killing. Thetestimonies of Michael Jowers, Mrs. Jowers, andMiss Young were by deposition. These keywitnesses were not heard or observed by the juryor the trial judge.In these circumstances, the presumption ofcorrectness which ordinarily attaches to the trialcourt's fact findings is slight because the jury andtrial judge have not seen and heard the witnesses.As to these key witnesses, the appellate court hasthe same record before it as did the trial court andtherefore has the same opportunity to weigh itsevidentiary value. Hinkle v. Lindsey, 424 So. 2d983 (Fla. 5th DCA 1983). See also West ShoreRestaurant Corp. v. Turk, 101 So. 2d 123 (Fla.1958); Conklin v. Pruitt, 182 So. 2d 644 (Fla. 1stDCA 1966).These evidentiary sources, I think, clearlyreveal certain salient facts about the eventsCOTE V. JOWERS

408 13. DEFENSES TO INTENTIONAL TORTSimmediately preceding Michael Bessent's death.First, at no time during his confrontation withJowers, either in the yard, on the porch, or in thehouse, did Bessent display or threaten Jowers witha weapon of any sort. Bessent was at all timesunarmed. Second, Bessent had left the house and,in all probability, would have departed on hismotorcycle had not Jowers initiated the argumentby going out into the front yard to accost Bessent.Third, the disparate physical abilities of Bessentand Jowers are evidenced by the fact that Jowershad no real trouble in besting Bessent and pinninghim to the ground. Fourth, Jowers reentered thehouse, closed the door, and told Deborah Bessentto call the police. It was Jowers who reopened thedoor (thus making it possible for Bessent to forehis way into the house) and exhibited his gun toBessent. Once he had again entered the house,Bessent used no force whatsoever on Jowers whenJowers shot him at close range with a .357magnum. At best, Jowers may have feared anotherfistfight with a man who had been drinking andwhom he had already easily brought under control.But there was nothing to cause Jowers to fear forhis life, or for that matter, for the lives of DeborahBessent and her children; nothing, in short, whichwould have justified the use of deadly force.Finally, although Jowers had given instructions tocall the police, he shot to kill rather than cripple.In my view, these facts amply demonstrate thatJowers had no legal justification in killing Bessentand that, accordingly, the jury's verdict wasagainst the manifest weight of the evidence. Onthis basis alone, I would find that reversal and anew trial are warranted.I also think that that part of the juryinstruction which refers to section 782.02, FloridaStatutes (1983) 2 severely misled the jury becauseit implies that once an intruder enters a home, theoccupant can use deadly force to prevent anyfelony, and not merely those which are lifethreatening.On this rationale, an armedhomeowner, upon confronting an unarmedjuvenile burglar in his home, may kill the juvenilewith impunity, notwithstanding that thehomeowner does not fear for his life andnotwithstanding that a reasonable man similarly2The statute provides: "The use of deadly force isjustifiable when a person is resisting any attempt to murdersuch person or to commit any felony upon him or in anydwelling house in which such person shall be."situated would not fear imminent death or seriousbodily injury. See Note, Lovers and OtherStrangers: Or When Is a Home a Castle?, 11 FLA.ST. U. L. REV. 465 (1983).Clearly, this is not the law. Section 782.11,Florida Statutes (1983), which states that"[w]hoever shall unnecessarily kill another, eitherwhile resisting an attempt by such other person tocommit any felony, or to do any other unlawfulact, or after such attempt shall have failed, shall bedeemed guilty of manslaughter" limits the scopeof section 782.02 by engrafting a standard ofnecessity on the justifiable use of deadly force.The Florida Supreme Court recognized this veryprinciple in Popps v. State, 120 Fla. 387, 162 So.701, 702 (1935), when it stated that "a plainlyunnecessary killing, even defending oneselfagainst an unlawful personal attack being made bythe person slain, may be deemed manslaughter,where a plea of justifiable homicide under [section782.02] is interposed as a justification, but suchdefense is not sufficiently supported to constitutean absolute bar to conviction." Just this past year,the court stated:A homeowner is not entitled to usedeadly force to protect his person ordwelling in all instances. A homeownermay use deadly force to protect himself orhis dwelling only if there exists areasonable belief that such force isnecessary. Butler v. State, 493 So. 2d 451,453 (Fla. 1986); see also Falco v. State,407 So. 2d 203, 208 (Fla. 1981).The trial court should not give instructions tothe jury which are confusing, contradictory, ormisleading. Butler, 493 So. 2d at 452. It ismanifest that the trial judge's instructionssuggesting that Jowers had a carte blanche right tokill Bessent once the latter entered the houseconfused the jury, for they requested not once, buttwice, to be given a clarification on the justifiableuse of deadly force. It bears repeating that thejury's second request for clarification queriedwhether Jowers was within the law to kill Bessentin self-defense if he could have defended himselfotherwise. To my mind, that the jury posed thisquestion to the trial judge after he had completelyreread them the instructions on self-defense andprivilege illustrates not only that the instructionswere confusing; it also points to the inescapableconclusion that the jurors simply could not believethat the law as to the justifiable use of deadly forceCOTE V. JOWERS

§ B. DEFENESE OF SELF 409in a dwelling house was as the trial judgeexplained it to them.I recognize that during the trial, appellant didnot request instructions which would have takeninto account the specific limitations on section782.02 which I have discussed, and which Floridacourts have acknowledged. I nevertheless wouldfind that the trial court's statement of the law ofjustifiable use of deadly force, as it appears insection 782.02, is so misleading as to have beenfundamental error. If it "is fundamental that whenthe trial judge purports to give a charge onjustifiable homicide, that every element ofjustifiable homicide ... should be given," Bagley v.State, 119 So. 2d 400, 403 (Fla. 1st DCA 1960),then it follows that the limitations on such adefense, as they appear in statutes and case law,are similarly fundamental.Jowers' killing of an intoxicated and unarmedman whom he had already outfought was aconsequence he could have easily averted bysimply remaining inside Deborah Bessent's houseuntil the police arrived. For the foregoing reasons,and because I believe that the majority's opinionplaces this court's imprimatur on a senseless andunlawful killing, I respectfully dissent.§ C. Defense of OthersYOUNG v. WARREN95 N.C. App. 585, 383 S.E.2d 381 (1989)GREENE, JudgeIn this civil action the plaintiff appeals from afinal judgment entered by the trial court, pursuantto a jury verdict, denying any recovery on awrongful death action.The evidence introduced at trial showed thatdefendant shot and killed Lewis Reid Young("Young") on 12 May 1986. The death occurred asa result of a 20-gauge shotgun blast fired at closerange into the deceased's back. On 14 October1986, the defendant pled guilty to involuntarymanslaughter.Prior to the shooting, in the early morninghours of 12 May 1986, Young, who had beendating defendant's daughter for several months,went to the home of defendant's daughter wholived with her two children within sight of thedefendant's residence. Upon arriving at thedefendant's daughter's home, Young threw a largepiece of wood through the glass in the front door.He then entered the home by reaching through thebroken window and unlocking the door. Onceinside the house Young argued with thedefendant's daughter and "jerked" her arm. At thatpoint, the defendant arrived with his loadedshotgun, having been awakened by a telephonecall from a neighbor, his ex-wife, who had toldhim "something bad is going on" at his daughter'shouse. When the defendant arrived at hisdaughter's house, he heard screaming and sawYoung standing inside the door. The defendantthen testified:A. I told him like, `Come on out. Thisdoesn't make any sense,' and he kind ofcame forward, you know, kind of had hishands up like that. (Indicating) I backedaway from the door and I told him to geton out. `This can be taken care oftomorrow,' or something to that effect.Q. You told him to get the hell out,didn't you?A. Well, okay; something like that.Q. Okay. And then what happened?A. Then he walked out the door and Ijust backed up like he came out the doorand he walked over about six feet. Thereis a cement porch there, and he steppedright there, and I was behind himanywhere from a foot to eighteen inches,maybe even two foot, and he stopped.And in my opinion, he started to turnaround....Q. What did he do?A. He stopped and started to lowerhis hands and started to turn around.Q. What did you do?A. I prodded him with the gun andtold him to get on out, and that's when itwent off.The trial judge submitted two issues to thejury, the second issue being submitted over theobjection of the plaintiff:COTE V. JOWERS

410 13. DEFENSES TO INTENTIONAL TORTS1. Did Lewis Reid Young, deceased,die as a result of the negligent acts of thedefendant, William S. Warren?Answer: Yes.2. Did the defendant, William S.Warren, act in the lawful defense of hisdaughter, Autumn Stanley, and herchildren, his grandchildren?Answer: Yes.Pursuant to the jury's answers to the issuessubmitted by the judge, the trial court ordered"that the plaintiff, Lewis Rankin Young, Jr., haveand recover nothing of the defendant, William S.Warren, and that the costs be taxed against theplaintiff."The determinative issue is whether the trialcourt erred in submitting the defense of familyissue to the jury.We first determine whether a defendant in acivil action may assert defense of family to justifyassault on a third party. While self-defense anddefense of family are seen more often in thecontext of criminal law, these defenses arenonetheless appropriate in civil actions. See Harisv. Hodges, 57 N.C. App. 360, 291 S.E.2d 346,disc. rev. denied, 306 N.C. 384, 294 S.E.2d 208(1982); S. SPIESER, C. KRAUSE & A. GANS, THEAMERICAN LAW OF TORTS Sec. 5:8 at 802 (1983)(self-defense and defense of others recognized inboth criminal and civil law); 22A AM. JUR. 2DDeath Sec. 163 at 237 (1988) (the "defense ofself-defense is available in a wrongful deathaction").If the defenses apply, the defendant's conductis considered "privileged" and the defendant is notsubject to tort liability for actions taken within theprivilege. SPIESER, THE AMERICAN LAW OF TORTSSec. 5:6 at 794. The defenses, as they result inavoidance of liability, are considered affirmativedefenses and must be affirmatively pled. N.C.G.S.Sec. 1A-1, Rule 8(c) (1983); see also SPIESER,THE AMERICAN LAW OF TORTS Sec. 5:8 at 802.The burden of proof is on the defendant to provethe defenses by a preponderance of the evidence.Annot. "Death Action - Self Defense - Proof," 17A.L.R.2D 597, 601 (1951).An assault on a third party in defense of afamily member is privileged only if the "defendantIhad a well-grounded belief that an assault wasabout to be committed by another on the familymember...." State v. Hall, 89 N.C. App. 491, 494,366 S.E.2d 527, 529 (1988). However, in no eventmay defendant's action be in excess of theprivilege of self-defense granted by law to thefamily member. Id.; SPIESER, THE AMERICAN LAWOF TORTS Sec. 5:10 at 810. The privilege protectsthe defendant from liability only to the extent thatthe defendant did not use more force than wasnecessary or reasonable. PROSSER & KEETON, THELAW OF TORTS Sec. 20 at 130 (5th ed. 1984); Hall,89 N.C. App. at 493, 366 S.E.2d at 528. Finally,the necessity for the defense must "be immediate,and attacks made in the past, or threats for thefuture, will not justify" the privilege. PROSSER &KEETON, THE LAW OF TORTS at 130.The defendant did not properly plead in hisanswer the "defense of family." N.C.G.S. Sec. 1A-1, Rule 8(c) (matter constituting affirmativedefense must be pled). The parties neitherexpressly nor impliedly consented to trying theissue of "defense of family." In fact, the plaintiffobjected to the submission of this issue to the jury.Procedurally, no grounds existed for placing theissue before the jury. See Nationwide Mut. Ins. Co.v. Edwards, 67 N.C. App. 1, 6, 312 S.E.2d 656,660 (1984) (when affirmative defense is not pled,parties may by "express or implied consent" waivepleading of the affirmative defense).Additionally, the record contains no evidencethat the defendant reasonably believed hisdaughter was, at the time of the shooting of theplaintiff, in peril of death or serious bodily harm.At that time, the plaintiff stood outside the housewith his back to the defendant. Defendant'sdaughter and children were inside the house,removed from any likely harm from plaintiff.Accordingly, assuming arguendo the "defense offamily" had been adequately pled or tried byconsent, the evidence in this trial did not supportthe submission of the issue to the jury, and theplaintiff is entitled to a new trial. See Hall, 89N.C. App. at 494, 366 S.E.2d at 529; cf. Harris, 57N.C. App. at 361, 291 S.E.2d at 347 (self-defenseissue for jury only after evidence was presentedfrom which jury may infer defendant acted in selfdefense).On remand, as several of the additional issuesraised by plaintiff's assignments of error may ariseIIYOUNG V. WARREN

§ C. DEFENESE OF OTHERS 411at re-trial, we briefly address them.Plaintiff first contends the trial court erred indenying his in limine motion seeking to preventthe admission of testimony concerning Young'spossession of a firearm and his blood/alcohollevel. We agree. An autopsy report indicatedYoung's blood/alcohol level at the time of hisdeath was .23 and that a detective removed a .22caliber pistol from plaintiff's pocket after hisdeath. However, no testimony exists on record thatthe defendant knew Young had a handgun in hispossession or that he was aware that Young hadconsumed any alcohol. Accordingly, we determinethis evidence was not relevant as it had notendency to "make the existence of any fact that isof consequence to the determination of the actionmore probable or less probable than it would bewithout the evidence." N.C.G.S. Sec. 8C-1, Rule401 (1988). Therefore the evidence was notadmissible, and the motion in limine should havebeen allowed. N.C.G.S. Sec. 8C-1, Rule 402(1988).The plaintiff next argues the trial courtincorrectly instructed the jury as follows:The defendant's plea of "guilty" in thecriminal case may be considered by youon the issue of the defendant's potentialliability in this civil case. However, Iinstruct you that this conviction is notconclusive of the defendant's civilliability because this case involvesdifferent parties....ABWe find no error in this part of the trial court'sinstructions. Evidence of a plea of guilty to acriminal charge is generally admissible in a civilcase, but it is not conclusive evidence ofdefendant's culpable negligence. Grant v.Shadrick, 260 N.C. 674, 133 S.E.2d 457 (1963).Plaintiff next argues that his motion fordirected verdict on the issue of the defendant'snegligence should have been allowed sincedefendant had pled guilty to manslaughter. Again,the evidence of the plea of guilty to manslaughteris only some evidence in the civil proceeding anddoes not justify a directed verdict for the plaintiffon the issue.Plaintiff finally argued in his motion fordirected verdict that, as a matter of law, Youngwas not contributorily negligent. Again wedisagree. Whether Young's actions amounted tocontributory negligence in this case is a questionfor the jury. See Taylor v. Walker, 320 N.C. 729,734-35, 360 S.E.2d 796, 800 (1987). We do note,if on retrial the jury determines the defendant'snegligence amounted to a wilfull or wanton injury,the defense of contributory negligence would notbe available. Pearce v. Barham, 271 N.C. 285,289, 156 S.E.2d 290, 294 (1967).As the other assignments of error raised by theplaintiff are not likely to recur at trial, we do notaddress them.New trial.Judges ARNOLD and LEWIS concur.CD§ D. Defense of PropertyC.I.T. CORPORATION v. BREWER146 Fla. 247, 200 So. 910 (1941)PER CURIAMOn writ of error we review judgment in favorof the plaintiff in a suit for damages alleged tohave been inflicted by an assault and battery. Thefacts to sustain a verdict as gleaned from therecord are, in effect: One Amos had bought anautomobile under conditional sales contract. Theconditional sales contract had been assigned toC.I.T. Corporation, a corporation. J.B. Brewer waspresident and manager of J.B. Brewer, Inc., aFlorida corporation, engaged in the businesscommonly known as an automobile garage in FortPierce, Florida. Amos had delivered theautomobile to J.B. Brewer, Inc., to be repaired.The automobile had been repaired. Amos had notpaid the repair bill. The automobile was inpossession of J.B. Brewer, Inc., just outside of thegarage building on the premises of J.B. Brewer,Inc. The ignition key had been removed from theautomobile by the garage owner or its agent.YOUNG V. WARREN

412 13. DEFENSES TO INTENTIONAL TORTSOne Denmark was agent for C.I.T.Corporation with authority to collect installmentsdue under conditional sales contract and torepossess automobiles in event of default inpayment. Amos and Denmark went into the garageof J.B. Brewer, Inc., and requested J.B. Brewer tomake payment for Amos of the amounts in defaultunder the conditional sales contract. Brewerdeclined to do so, whereupon Denmark said thathe would repossess the automobile. J.B. Brewertold Denmark that he was holding the car for theamount due his corporation for repairs and alsotold Denmark that he could not remove the carfrom his possession without paying the repair bill.While they were discussing the matter Brewer'sattention was called somewhere else and as heturned away Denmark got into the automobile,found the ignition key was not in it and thereuponattempted to remove the automobile from thepremises by using the starter as motive power. Thenoise of the operation of the starter attractedBrewer; he returned and attempted to get Denmarkout of the automobile. Denmark resisted and putup a fight. Brewer called on some of hisemployees to assist him and together theyseparated Denmark from the automobile. But, inthe fight or altercation over possession of theautomobile Denmark injured Brewer by eitherstriking him or kicking him in or about theabdomen, thereby causing a serious herniaresulting in great pain and suffering and inpermanent injury.Plaintiff in error has posed seven questions forour consideration, stated as follows:1. Has the holder of a conditionalsales contract upon an automobile theright to take possession of the automobilewhen it is parked on the premises of anautomobile sales agency and garageserving the public when the holder or hisagent is rightfully on the premises and didnot commit a breach of the peace ortrespass in entering into and takingpossession of the automobile?2. Has the holder of a conditionalsales contract on an automobile the rightto defend his possession of theautomobile after he has rightfullyrepossessed it and is in complete chargeand control of it?3. Has the holder of a mechanic's andmaterialmen's lien on an automobile theright to physically and forcibly takepossession of the automobile from oneholding the conditional sales contract ofprior date and effect, who is actually incustody and possession thereof?4. Is it incumbent upon a trial court tofully charge on all material questions oflaw pertaining to the facts before the juryafter it is specifically requested by one ofthe parties litigant?5. Is it incumbent upon a trial court toinstruct the jury at the request of one ofthe parties litigant as to the law of priorityof liens when such issues being before thejury may be confusing in the absence ofsuch instructions?6. Is it prejudicial error to charge thejury as follows: `One who attempts totake the law in his own hands and attainhis property rights does so at his peril andis responsible in damages for an assaultand battery committed in accomplishingthe desired result without process of law'where there is no evidence in the recordthat plaintiff in error did attempt to takethe law into his own hands, and at no timeor place in the instructions to the jury didthe Court enlarge or enlighten thatstatement?7. Is the verdict rendered in this causein accordance with the substantial justiceof the case as shown by the record?The first and second questions indulge theunwarranted assumption that the agent of theholder of the conditional sales contractrepossessed the automobile in question withoutcommitting a breach of the peace or a trespass intaking possession of the automobile.In C.I.T. Corporation et al. v. Reeves, 112 Fla.424, 150 So. 638, 639, in discussing the rights ofthe holder of retain title contract to retakeproperty, we said: "Without doubt, trespasses orassaults perpetrated in exercising the right topeaceably retake possession, as conferred by thecontract, are not contemplated by any of thecontractual provisions, and if any such trespassesor assaults are committed by the title holder or hisagent, in the course of exercising the contract rightgiven, an action on the case for damages willclearly lie. See Silverstin v. Kohler & Chase, 181Cal. 51, 183 P. 451, 9 A.L.R. 1177."Authorities are legion to support that

§ D. DEFENESE OF PROPERTY 413enunciation. See Percifield v. State, 93 Fla. 247,111 So. 519; Annotation and authorities cited 9A.L.R. 1180 et seq., also annotations andauthorities cited 105 A.L.R. 926 et seq.The third question unwarrantedly assumesthat the agent of the holder of the conditional salescontract had accomplished taking possession ofthe automobile, that is of divesting J.B. Brewer,Inc., of the possession of the automobile whenBrewer undertook to remove Denmark from theautomobile. The jury was warranted in finding acontrary condition. There is ample evidence toestablish it as a fact that Denmark was attemptingto forcibly and against the will of the person inpossession of the property remove that propertyfrom the possession of the garage owner.In Crews et al. v. Parker, 192 Ala. 383, 68 So.287, 288, that court said: "Any act or actionmanifesting force or violence, or naturallycalculated to provoke a breach of the peace, in therecaption of property renders the actor atrespasser, and precludes him from availing of hisright to retake the property. To enter one'spremises, and notwithstanding the possessor'sprotest, and in a rule and rough manner to takechattels against his will, is, we think, clearly notan assertion of a right in a peaceful manner."In Singer Sewing Machine Co. v. Phipps, 49Ind. App. 116, 94 N.E. 793, it was held: "Acorporation is liable in damages as an individualfor a tort committed by its agent in the line of hisemployment and within the scope of his authority,though it be malicious and against its expressorder." See also Peddie v. Gally, 109 App. Div.178, 95 N.Y.S. 652; Regg v. Buckley-Newhall Co.,72 Misc. 387, 130 N.Y.S. 172; Gerstein v. C. F.Adams Co., 169 Wis. 504, 173 N.W. 209; SingerSewing Machine Co. v. Methvin, 184 Ala. 554, 63So. 997; Lambert v. Robinson, 162 Mass. 34, 37N.E. 753, 44 Am. St. Rep. 326.So it may be said that the attempt to seizemanual control of a chattel and to remove it fromthe premises of one who is in lawful possessionthereof by one claiming the right to repossess itunder conditional sales contract after he had beenexpressly denied the right by the person in lawfulpossession constitutes a trespass for whichdamages may be awarded; and where suchtrespass is committed by the agent of the owner ofa conditional sales contract when the agent isshown to have general authority to repossessproperty covered by such contracts the employeris liable for the trespass or assault and batterycommitted and may be required to answer indamages for the same.The fourth, fifth and sixth questions may beconsidered together.We have considered the charges andinstructions given the jury by the trial court andfind that they sufficiently cover the law of the caseand sufficiently clearly state the issues to bedetermined by the jury.No reversible error is reflected in the refusalto give certain requested charges. There appearsample evidence in the record to support the verdictand the judgment.A consideration of the entire record disclosesno reversible error. The judgment is affirmed.So ordered.BROWN, C.J., and WHITFIELD, TERRELL,BUFORD, and CHAPMAN, JJ., concur.KATKO v. BRINEY183 N.W.2d 657 (Iowa 1971)MOORE, Chief JusticeThe primary issue presented here is whetheran owner may protect personal property in anunoccupied boarded-up farm house againsttrespassers and thieves by a spring gun capable ofinflicting death or serious injury. We are not hereconcerned with a man's right to protect his homeand members of his family. Defendants' home wasseveral miles from the scene of the incident towhich we refer infra.Plaintiff's action is for damages resulting fromserious injury caused by a shot from a 20-gaugespring shotgun set by defendants in a bedroom ofan old farm house which had been uninhabited forseveral years. Plaintiff and his companion, MarvinMcDonough, had broken and entered the house tofind and steal old bottles and dated fruit jars whichthey considered antiques. At defendants' requestplaintiff's action was tried to a jury consisting ofresidents of the community where defendants'property was located. The jury returned a verdictfor plaintiff and against defendants for $20,000actual and $10,000 punitive damages.

414 13. DEFENSES TO INTENTIONAL TORTSAfter careful consideration of defendants'motions for judgment notwithstanding the verdictand for new trial, the experienced and capable trialjudge overruled them and entered judgment on theverdict. Thus we have this appeal by defendants.* * *II. Most of the facts are not disputed. In 1957defendant Bertha L. Briney inherited her parents'farm land in Mahaska and Monroe Counties.Included was an 80-acre tract in southwestMahaska County where her grandparents andparents had lived. No one occupied the housethereafter. Her husband, Edward, attempted to carefor the land. He kept no farm machinery thereon.The outbuildings became dilapidated.For about 10 years, 1957 to 1967, thereoccurred a series of trespassing and housebreakingevents with loss of some household items, thebreaking of windows and "messing up of theproperty in general". The latest occurred June 8,1967, prior to the event on July 16, 1967 hereininvolved.Defendants through the years boarded up thewindows and doors in an attempt to stop theintrusions. They had posted "no trespass" signs onthe land several years before 1967. The nearestone was 35 feet from the house. On June 11, 1967defendants set "a shotgun trap" in the northbedroom. After Mr. Briney cleaned and oiled his20-gauge shotgun, the power of which he was wellaware, defendants took it to the old house wherethey secured it to an iron bed with the barrelpointed at the bedroom door. It was rigged withwire from the doorknob to the gun's trigger so itwould fire when the door was opened. Briney firstpointed the gun so an intruder would be hit in thestomach but at Mrs. Briney's suggestion it waslowered to hit the legs. He admitted he did so"because I was mad and tired of being tormented"but "he did not intend to injure anyone". He gaveno explanation of why he used a loaded shell andset it to hit a person already in the house. Tin wasnailed over the bedroom window. The spring guncould not be seen from the outside. No warning ofits presence was posted.Plaintiff lived with his wife and workedregularly as a gasoline station attendant inEddyville, seven miles from the old house. He hadobserved it for several years while hunting in thearea and considered it as being abandoned. Heknew it had long been uninhabited. In 1967 thearea around the house was covered with highweeds. Prior to July 16, 1967 plaintiff andMcDonough had been to the premises and foundseveral old bottles and fruit jars which they tookand added to their collection of antiques. On thelatter date about 9:30 p.m. they made a second tripto the Briney property. They entered the old houseby removing a board from a porch window whichwas without glass. While McDonough waslooking around the kitchen area plaintiff went toanother part of the house. As he started to open thenorth bedroom door the shotgun went off strikinghim in the right leg above the ankle bone. Much ofhis leg, including part of the tibia, was blownaway. Only by McDonough's assistance wasplaintiff able to get out of the house and aftercrawling some distance was put in his vehicle andrushed to a doctor and then to a hospital. Heremained in the hospital 40 days.Plaintiff's doctor testified he seriouslyconsidered amputation but eventually the healingprocess was successful. Some weeks after hisrelease from the hospital plaintiff returned to workon crutches. He was required to keep the injuredleg in a cast for approximately a year and wear aspecial brace for another year. He continued tosuffer pain during this period.There was undenied medical testimonyplaintiff had a permanent deformity, a loss oftissue, and a shortening of the leg.The record discloses plaintiff to trial time hadincurred $710 medical expense, $2056.85 forhospital service, $61.80 for orthopedic service and$750 as loss of earnings. In addition thereto thetrial court submitted to the jury the question ofdamages for pain and suffering and for futuredisability.III. Plaintiff testified he knew he had no rightto break and enter the house with intent to stealbottles and fruit jars therefrom. He further testifiedhe had entered a plea of guilty to larceny in thenighttime of property of less than $20 value froma private building. He stated he had been fined $50and costs and paroled during good behavior from a60-day jail sentence. Other than minor trafficcharges this was plaintiff's first brush with the law.On this civil case appeal it is not our prerogativeto review the disposition made of the criminalcharge against him.IV. The main thrust of defendants‟ defense inthe trial court and on this appeal is that “the lawpermits use of a spring gun in a dwelling orwarehouse for the purpose of preventing theunlawful entry of a burglar or thief”....

§ D. DEFENESE OF PROPERTY 415* * *PROSSER ON TORTS, Third Edition, pages 116-118, states:[T]he law has always placed a highervalue upon human safety than upon mererights in property, it is the accepted rulethat there is no privilege to use any forcecalculated to cause death or serious bodilyinjury to repel the threat to land orchattels, unless there is also such a threatto the defendants‟ personal safety as tojustify a self-defense ... spring guns andother mankilling devices are notjustifiable against a mere trespasser, oreven a petty thief. They are privilegedonly against those upon whom thelandowner, if he were present in personwould be free to inflict injury of the samekind.” RESTATEMENT OF TORTS, section85, page 180, states: “The value of humanlife and limb, not only tho the individualconcerned but also to society, sooutweighs the interest of a possessor ofland in excluding from it those whom heis not willing to admit thereto that apossessor of land has, as it is stated in §79, no privilege to use force intended orlikely to cause death or serious harmagainst another whom the possessor seesabout to enter his premises or meddlewith his chattel, unless the intrusionthreatens death or serious bodily harm tothe occupiers or users of the premises....A possessor of land cannot do indirectlyand by a mechanical device that which,were he present, he could not doimmediately and in person. Therefore, hecannot gain a privilege to install, for thepurpose of protecting his land fromintrusions harmless to the lives and limbsof the occupiers or users of it, amechanical device whose only purpose isto inflict death or serious harm upon suchas may intrude, by giving notice of hisintention to inflict, by mechanical meansand indirectly, harm which he could not,even after request, inflict directly were hepresent.”* * *In United Zinc & Chemical Co. v. Britt, 258U.S. 268, 275, 42 S. Ct. 299, 66 L. Ed. 615, 617,the court states: “The liability for spring guns andmantraps arises from the fact that he defendant has... expected he trespasser and prepared an injurythat is no more justified than if he had held thegun and fired it.”* * *Study and careful consideration of defendants‟contentions on appeal reveal no reversible error.Affirmed.All Justices concur except LARSON, J., whodissents.LARSON, Justice.I respectfully dissent, first, because themajority wrongfully assumes that by installing aspring gun in the bedroom of their unoccupiedhouse the defendants intended to shoot anyintruder who attempted to enter the room. Underthe record presented here, that was a fact question.Unless it is held that there property owners areliable for any injury to a intruder from such adevice regardless of the intent with which itinstalled, liability under these pleadings must restupon two definite issues of fact, i.e., did thedefendants intend to shoot the invader, and if so,did they employ unnecessary and unreasonableforce against him?It is my feeling that the majorityoversimplifies the impact of this case on the law,not only in this but other jurisdictions, and that ithas not thought through all the ramifications ofthis holding.There being no statutory provisions governingthe right of an owner to defend his property by theuse of a spring gun or other like device, or of acriminal invader to recover punitive damageswhen injured by such an instrumentality whilebreaking into the building of another, our interestand attention are directed to what should be thecourt determination of public policy in thesematters. On both issues we are faced with a caseof first impression. We should accept the task andclearly establish the law in this jurisdictionhereafter. I would hold that there is no absoluteliability for injury to a criminal intruder by settingup such a device on his property, and unless donewith an intent to kill or seriously injure theintruder, I would absolve the owner from liabilityother than for negligence. I would hold the court

416 13. DEFENSES TO INTENTIONAL TORTShad no jurisdiction to allow punitive damageswhen the intruder was engaged in a seriouscriminal offence such as breaking and enteringwith intent to steal.Questions and Notes1. If spring guns are an unacceptable means ofprotecting property from burglary, what aboutferocious dogs? If Katko had received the sameinjuries from a Doberman Pinscher, would therebe liability? See RESTATEMENT (TORTS) 2d, §516, Watchdogs, which in turn relies upon §§ 82-85.2. A Miami storekeeper electrocuted a burglarby wiring a grate to an electrical outlet. MiamiHerald, Oct. 4, 1984. What defenses could thestorekeeper raise?3. In Tennessee v. Garner, 471 U.S. 1 (1985),the Supreme Court reviewed a case in which apoliceman shot a burglar who was attempting toflee the burglary scene. The court held that it isunconstitutional to use deadly force against afleeing felon unless the suspect poses animmediate threat to the officer or a threat toothers. Would this ruling affect Katko-like casesin the future?4. OKLA. STAT. ANN., tit. 21, provides:§ 1289.25. Unlawful entry of a dwelling -Physical or deadly force against intruder -Affirmative defense and immunity fromcivil liabilityA. The Legislature hereby recognizesthat the citizens of the State of Oklahomahave a right to expect absolute safetywithin their own homes.B. Any occupant of a dwelling isjustified in using any degree of physicalforce, including but not limited to deadlyforce, against another person who hasmade unlawful entry into that dwelling,and when the occupant has a reasonablebelief that such other person might useany physical force, no matter how slight,against any occupant of the dwelling.C. Any occupant of a dwelling usingphysical force, including but not limitedto deadly force, pursuant to the provisionsof subsection B of this section, shall havean affirmative defense in any criminalprosecution for an offence arising fromthe reasonable use of such force and shallbe immune from any civil liability forinjuries or death resulting from thereasonable use of such force.Would you support the passage of such astatute in your jurisdiction?§ E. Statutory PrivilegeNote. In Moore v. Pay’n’Save, supra, theissue of statutory privilege is presented along withan analysis of whether the tort of falseimprisonment had been committed. The privilegeto detain someone has been created by statute notonly for the storekeepers, but also for lawenforcement personnel. Note that it extends onlyto detention based upon reasonable grounds andonly for a reasonable time. That will make it ajury question in most cases.

417 PART III: MODIFICATION OF DUTY BY STATUS AND RELATIONSHIPS

APPENDIXES

APPENDIX ATHE PROCEDURAL HISTORY OF A SIMPLECASEIntroduction. Appellate court cases are written for an audience that already understands the legalprocess. As a beginning law student you are trying to do (at least) two things at once: (1) understand thesubstantive doctrine (in this class, tort law) within a particular case; but to do so you must (2) learn how thatdoctrine gets expressed in the course of an appellate opinion. This Appendix is designed to help you quicklyaccomplish goal #2 so that you can do a better job with goal #1.As noted in the introduction, appellate opinions are the bread and butter of this and most other casebooks.The key to understanding an appellate opinion is to recognize that it is based upon a claim of error. When thelosing party appeals to a higher court to try to reverse the outcome of a case at trial, he must identify wherealong the line the trial court made its mistake(s). It is those mistakes that the appellate court is entitled to"correct" (if necessary by requiring the case to be retried). By understanding how a case proceeds from start tofinish, you will have a better understanding of how the rights and obligations of the parties are enforced.For the most part what follows assumes that something like the Federal Rules of Civil Procedure are ineffect. Some states use different names for the procedures, but the general pattern is common to virtually alljurisdictions.Background Facts and Investigation. Paula Prentice was driving down Oak Street in her red Oldsmobileconvertible. She was observing the speed limit. A blue Ford, driven by Dennis Daniels, attempted to make aleft turn onto Oak Street from Flag Drive, which has a stop sign. Dennis didn't see Paula coming. As Denniscame into view, Paula applied her brakes but could not avoid hitting him. Both cars were damagedextensively. Paula said she was in a lot of pain but managed to stay until the police arrived. The officer,Ophelia Orton, talked to all the witnesses and wrote up an accident report, finding Daniels at fault.Both Paula and Dennis reported the accident to their insurance companies. Both had insurance thatcovered collision damage to their cars as well potential liability they might have to someone injured by theirdriving. Both insurance companies assigned CLAIMS ADJUSTERS to the case. The job of the claims adjuster isto work with the person making claims against the insurance company and attempt to get the case resolved.

A.2 APPENDIX BStarting the lawsuit: The Pleadings. 87Paula went to see a lawyer, PatriciaLeonia, who said she would try tonegotiate with the insurance company toget a favor-able settlement. To make a longstory short, they could not agree, and soPatricia prepared a COMPLAINT againstDennis (see Figure 1). In the complaintPaula is listed as the PLAINTIFF, andDennis, since he is the one against whomrelief is sought, is named the DEFENDANT.The complaint contains the facts necessaryto let the defendant know what the claim isall about and what kind of action theplaintiff wants the court to take against thedefendant. 88After it was prepared and signed bythe plaintiff's lawyer, the complaint wasFILED at the County Courthouse in thecounty where the plaintiff wants the caseto be heard, usually in the place where theplaintiff lives. When the complaint wastaken down to the courthouse, a court clerklooked at it to see that it was ready forfiling, then collected the filing fee andassigned the case a number. The plaintiffmust also SERVE the complaint on thedefendant, 89 along with a SUMMONS thatre-quires the defendant to answer thecomplaint (see Figure 2). The filing of thecomplaint gets the case into the judicialsystem, but the defendant must be notifiedof other claim before he is obligated torespond to it.COLUMBIA SUPERIOR COURTCOUNTY OF LINDENPaula Prentice, ) Action No. ___________Plaintiff ))v. ) COMPLAINT FOR PERSONAL) INJURIES (MOTOR VEHICLE)Dennis Daniels, )Defendant )____________________________)Paula Prentice, for her claim against Dennis Daniels, alleges as follows:1. Plaintiff is a resident of the State of Columbia, County of Linden.2. On information and belief, plaintiff alleges that Dennis Daniels is aresident of the State of Columbia.3. On June 1, 1990, plaintiff was driving northbound on Oak Street.4. At approximately 1:30 p.m. a car driven by defendant DENNISDANIELS negligently made a left turn into the path of Paula Prentice, causing thecars to collide.5. As a direct and proximate result of the negligence of DENNISDANIELS, Paula Prentice suffered physical injury, property damage, and economicloss, in amounts to be proven at time of trial.WHEREFORE, Paula Prentice prays for the following relief:1. For a judgment against defendant DENNIS DANIELS for damagessustained, in an amount to be determined at time of trial;proper.2. For costs of the action, including a reasonable attorney's fee; and3. For such other and further relief as this court should deem just andDATED this 9th day of September, 1990./s/ Patricia LeoniaPatricia LeoniaAttorney for Plaintiff878889PLEADINGS refer to the complaint(s) and answer(s) setting forth the parties who are suing, whom they are suing, andthe facts upon which they base their claims and defenses.Note that in this case the complaint sets forth each of the elements of a negligence claim: the defendant was negligent,his negligence was a proximate cause of injury to the plaintiff, and the plaintiff suffered compensable damages as aresult.Usually the service of process is done by a professional process-server, who is experienced in locating defendants andmaking sure that they personally receive a copy of the summons and complaint.

THE PROCEDURAL HISTORY OF A SIMPLE CASE A.3COLUMBIA SUPERIOR COURTCOUNTY OF LINDENPaula Prentice, ) Action No. ___________Plaintiff ))v. ) SUMMONS (20 DAY))Dennis Daniels, )Defendant )___________________________)TO THE ABOVE-NAMED DEFENDANT(S):A lawsuit has been started against you in the above-entitled court by theabove-named Plaintiff. Plaintiff's claim is stated in the written complaint, acopy of which is served upon you with this Summons.In order to defend against this lawsuit, you must respond to the complaintby stating your defense in writing, and serve a copy upon the person signingthis Summons within 20 days after the service of this Summons, excludingthe day of service, or a default judgment may be entered against you withoutnotice. A default judgment is one where plaintiff is entitled to what he asksfor because you have not responded. If you serve a notice of appearance onthe undersigned person, you are entitled to notice before a default judgmentmay be entered.If you wish to seek the advice of an attorney in this matter, you should doso promptly so that your written response, if any, may be served on time.This summons is issued pursuant to Rule 4 of the Justice Court Rules.DATED this 9th day of September, 1990.Once the complaint has been served andfiled, the defendant has a certain amount oftime (in this case 20 days) in which torespond to the complaint. If the defendantdoes not respond to the complaint, theplaintiff may be able to take a DEFAULTjudgment, 90 which (as the name implies)means that the plaintiff wins simply becausethe other side did not respond to thesummons and com-plaint with an answer orappropriate motion.However, Dennis Daniels took thesummons and complaint immediately to hisclaims adjuster, who then hired a lawyer,Duane Ludlow, to represent Dennis. 91 A fewdays after receiving the com-plaint, and wellwithin the time al-lowed, Duane filed anANSWER on Dennis' behalf (see Figure 3). 92The answer responds to each of theallegations of the complaint, and asserts anyAFFIRMATIVE DEFENSES 93/s/ Patricia LeoniaPatricia LeoniaAttorney for Plaintiff90919293Frequently a default judgment will be entered because the defendant (or his attorney) did not get a response in on time.(This is a common source of malpractice claims.) The defendant may ask for the default judgment to be set aside if hecan show that his failure to answer was excusable, if there appears to be some merit to the defendant's position (so thatfurther proceedings might produce a different result), and if the plaintiff has not been prejudiced by the delay. It isdiscretionary with the judge whether to grant such motions, and even if she does, she may condition setting aside thejudgment upon payment of substantial sanctions.Part of the insurance coverage provided by Dennis' policy is an agreement by the insurance company to provide legalrepresentation (a defense) against any legal action brought against the insured.He will also send (serve) a copy of the answer to the plaintiff's lawyer. After the initial service of the complaint, theparties must give the other side copies of any papers that they file. The attorneys, rather than the parties themselves, aresent the papers.An affirmative defense is one that will defeat (or reduce) the plaintiff's claim even if the plaintiff is able to establish allof the elements of her claim. For example, the statute of limitations bars claims that are not filed within the timepermitted (in Washington, three years after a personal injury claim accrues). Even if the plaintiff is able to provenegligence, causation, and damages, she will lose if the defendant can prove that the claims was not filed within thelimitations period.

A.4 APPENDIX Bthat the defendant thinks might apply tothe case, and then informs the court of whataction the defendant wants the court totake. 94 Pretrial motions and discovery. Ifnothing else were done by either party,eventually the case would be put on the trialcalendar. However, in modern practice thelawyers use the time interval between initialpleadings and trial to conduct DISCOVERYand to file any motions that might help themprepare for trial. Discovery is theopportunity for each side to learn whatevidence the other party has that might berelevant to the case. There are severaldifferent forms of permissible discovery.One is INTERROGATORIES, which arewritten questions addressed to the otherparty. For example, Duane Ludlow, thedefendant's attorney, might send a set ofinterrogatories to the plaintiff asking forinformation about her work history, thenature of her medical complaints, the namesof witnesses who have knowledge of theaccident, etc. Another commonly used formof discovery is the DEPOSITION, which istestimony by a witness in front of a courtreporter. Patricia Leonia, Paula's lawyer,might schedule the deposition of Dennis tofind out why he is claiming that Paula wasnegligent in failing to avoid the accident.The lawyers ask questions, and the witnessmustCOLUMBIA SUPERIOR COURTCOUNTY OF LINDENPaula Prentice, ) Action No. 90-12345Plaintiff ))v. ) ANSWER)Dennis Daniels, )Defendant )___________________________)DENNIS DANIELS, defendant, answers the plaintiff's complaint as follows:1. Paragraph 1 is DENIED for lack of information and belief.2. Paragraph 2 is ADMITTED.3. Paragraph 3 is ADMITTED.4. As to Paragraph 4, defendant admits that an accident occurred at approximately1:30 p.m. involving plaintiff's car and defendant's car, and DENIES thebalance of the allegation.5. Paragraph 5 is DENIED.AFFIRMATIVE DEFENSES1. Plaintiff was negligent in failing to avoid the collision, and her damages,if any, were solely and proximately caused by her own negligence.WHEREFORE, defendant prays for the following relief:1. For a judgment dismissing plaintiff's claim with prejudice;2. For costs of the action, including a reasonable attorney's fee; and3. For such other and further relief as this court should deem just and proper.DATED this 25th day of September, 1990./s/ Duane LudlowDuane LudlowAttorney for Defendant94The defendant also might assert other claims in his answer. For example, if Dennis had been injured (or if his insurancecompany wanted to collect the money paid out for the damage to Dennis' car), he might file a COUNTERCLAIM againstPaula. The counterclaim is just like a complaint, except it is filed by a defendant in response to being sued over the sameincident. Or Dennis might wish to file a THIRD-PARTY COMPLAINT against someone else. A third-party complaintallows a defendant to sue a third party who might be responsible for the injury, as part of the same lawsuit. In this casethe Dennis might file a third-party complaint against Linden County for failing to design or maintain the intersectionproperly to give him sufficient visibility of oncoming traffic.

THE PROCEDURAL HISTORY OF A SIMPLE CASE A.5answer them, and the testimony is taken down by acourt reporter, who later transcribes it. The lawyerscan also send a REQUEST FOR PRODUCTION OFDOCUMENTS, which requires the party to respondwith any relevant documents such as photographs ofthe accident scene, medical records, etc.The parties may also bring pre-trial motions totest the sufficiency of the other party's claims, or toget a legal ruling on some issue. If the defendantdoesn't think that the plaintiff has stated enoughfacts in the complaint - even assuming the facts weretrue - to justify the relief requested, then he may filea MOTION TO DISMISS FOR FAILURE TO STATE ACLAIM. In older cases this motion was called aDEMURRER. The judge would look at the factsalleged in the complaint and determine whether (ifproven) they would justify compensation by thedefendant. 95 For example, suppose in this casePatricia had left out of her complaint the allegationthat Dennis had driven negligently. Without thisallegation the complaint would be legallyinsufficient, since a collision by itself doesn't requireone party to compensate the other. Appellate casesdealing with motions to dismiss or demurrers arecommonly found in first-year casebooks, since insuch cases the court will frequently attempt toarticulate the dividing line between a case thatadequately states a claim for negligence (or someother theory) and one that does not.Another way to get a court's ruling on the law tobe applied to the case is through a MOTION FORJUDGMENT ON THE PLEADINGS. This motion issimilar to the demurrer, except that it can be madeby plaintiff as well as the defendant. Finally, eitherparty may ask for SUMMARY JUDGMENT. Modernrules of procedure allow either party to test whethertheir opponent has enough evidence to support theclaims made in the pleadings. For example, Dennisdenied that he was negligent. Patricia might file amotion attaching a copy of the police report citingDennis as the party at fault, asking for the judge togrant summary judgment on the issue of liability. Itwould then be up to Dennis to show that he hadenough evidence (such as his own testimony thatPaula was going too fast) to require that the jurydecide. 96Trial. Once the parties are ready for trial, thecase will be scheduled on the trial calendar, and onthe appointed day (unless there is a continuance ordelay in the proceeding) the lawyers and their clientswill appear before the trial judge. If either party hasrequested a jury, the potential jurors will be preparedfor jury selection. The process by which theprospective jurors are questioned about theirbackground and potential attitudes about the case iscalled VOIR DIRE. After the jurors have beenselected and sworn in, the lawyers get a chance tomake an OPENING STATEMENT. The lawyers outlinethe evidence that the jurors are going to hear, andwhile they are not permitted to argue (that isreserved for closing argument), they will emphasizethe facts that put their client in the most favorablelight.Then the plaintiff's lawyer calls witnesses, inwhatever order she chooses. In this case, Patriciamight call the police officer, Paula herself, andperhaps a doctor who can explain the nature of herphysical complaints. After a witness is sworn in, thelawyer who called the witness asks questions. This iscalled DIRECT EXAMINATION. If a question is askedimproperly, or if the opposing lawyer doesn't believethe testimony is relevant, he will object -interrupting between the asking of the question andthe answer. The trial judge must then rule on theobjection, either SUSTAINING the objection, whichdoes not permit the witness to answer, or elseOVERRULING the objection, and permitting thetestimony to be given. In older cases, the procedurerequired a lawyer to EXCEPT to a ruling by the trialjudge in order to preserve it for appeal. In modernprocedure, the only requirement is a timelyobjection. Frequently on appeal the issue is whetherthe EXCEPTION to the trial judge's ruling shouldhave been sustained or overruled.When all of the plaintiff's witnesses havetestified, she RESTS, meaning that the case is thenturned over to the defendant to present his witnesses.Before presenting witnesses, however, the defendant95 A motion to dismiss (or a MOTION TO STRIKE, which islimited to asking the judge to remove or ignore part of apleading) might also be used by the plaintiff to attack the legalsufficiency of some pleading by the defendant. For example,in this case the defendant included an affirmative defensebased upon contributory negligence. If Patricia thought therewas no basis in law for using this defense, she might file amotion to strike or dismiss.96 In a summary judgment motion, the key is showing the courtthat there is no genuine dispute over what the facts are, andthat a trial to determine the facts is therefore unnecessary.Unlike a motion for a directed verdict, discussed below, asummary judgment motion does not allow the judge to weighthe facts; rather, she must determine whether the law requiresa judgment based upon undisputed facts.

A.6 APPENDIX Bmay ask the judge for a dismissal of the case, or aNONSUIT. As with the motion to dismiss for failureto state a claim, the request for a nonsuit assumesthat the jury believes all of the evidence presentedby the plaintiff, but claims that even so, there is nobasis for a judgment in the plaintiff's favor. A similarprocedure is a MOTION FOR DIRECTED VERDICT.The defendant may claim that the evidence is soone-sided that no reasonable jury could return averdict for plaintiff. If the judge grants the nonsuit ordirects a verdict in the defendant's favor, the trial isover, and the plaintiff may then appeal if she thinksthe trial judge made a mistake. For example,suppose that in our case no one had testified aboutthe accident itself, and there was no evidence of anynegligence on Dennis' part. Dennis could move for adirected verdict, because in the absence of anyevidence of negligence, a reasonable jury could onlyreturn a verdict in favor of the defendant.Frequently the issue is whether the plaintiff haspresented a PRIMA FACIE CASE. A prima facie(literally, "at first blush") case consists of proof ofthe constituent elements which make up the cause ofaction under which the plaintiff is suing. In this case,for example, Paula is suing in negligence, and shemust prove (1) negligence (which is breach of theduty to use reasonable care), (2) causation, and (3)damages. Usually the burden of proof is upon theplaintiff, and therefore the plaintiff must prove aprima facie case before the judge will even requirethe defendant to put on his own evidence. Failure tosupply a critical element of the cause of action willresult in failure to prove a prima facie case, and thusthe plaintiff will have her case dismissed by amotion for a nonsuit or a directed verdict.But in our case Patricia presented evidence ofnegligence, causation, and damages, and the judgedenied motions for a nonsuit and/or for a directedverdict. Then the defendant had to call his witnesses,and this time he conducts the direct examination andthe plaintiff ask questions on cross-examination. Thedefendant's lawyer called Dennis himself, and BessyBrody, who claimed to be at the intersection whenthe accident took place. At the conclusion of thedefendant's case, either party may request a directedverdict, if the evidence is such that a reasonable jurycould only come out one way. For example, ifDennis has no evidence to contradict the policereport, there might be a directed verdict of liability,leaving the jury to consider only damages. But inour case Dennis testified that the traffic was clear onOak Street when he started his turn, and that Paulawas driving so fast that she didn't allow him tocomplete the turn before she hit him. Thus, the judgedenied both motions.After the defendant rests, the plaintiff may callREBUTTAL witnesses, whose testimony is limited tonew issues raised by the defendant. In this case, forexample, Patricia might recall Paula to testify thatBessy had her back turned when the accident tookplace. After all the testimony is completed, the judgethen INSTRUCTS THE JURY on the law that applies tothe case. 97 (The jury instructions are included at theend of this summary.) JURY INSTRUCTIONS are oneof the most important features of the trial from theperspective of the beginning law student. It is therethat the judge summarizes the law that applies to thecase. For example, in this case the judge assigns theBURDEN OF PROOF to each party; Paula has theburden of establishing negligence, proximate cause,and damages. 98 The defendant, on the other hand,has the burden of establishing any affirmativedefenses, such as negligence on the part of theplaintiff. The jury instructions also containdefinitions of terms like "negligence," "proximatecause," and so forth. Before the judge reads theinstructions, she gives the parties an opportunity tosubmit proposed instructions. Some of theinstructions are standard boilerplate, and the judgewill simply use those that are customary in herjurisdiction. However, on other points each lawyermay propose instructions that favor his client, andthe judge will have to decide which of the proposedinstructions more accurately states the law. If a partybelieves that an instruction incorrectly states the law,97In most cases a jury decides the issues offact. However,t here are some cases where there is no jury, andthe judge decides the issues of fact. These cases are calledBENCH TRIALS, or may be referred to as the JUDGE SITTINGWITHOUT A JURY. There is no jury verdict to decide the issuesof fact, and so the judge will announce his FINDINGS OF FACT,and along with them the CONCLUSIONS OF LAW. For example,in this case, if there had been no jury the judge would issuefindings of fact on the issues of whether Dennis negligentlyentered the intersection, whether that negligence caused injury toPaula, whether Paula was herself negligent, and what damageswere incurred. The judge might then issue conclusions of lawthat determine liability for the injuries. At that point there will bethe basis for entering a judgment, and then the case will parallel acase tried to a jury.98As Instruction 11 states, a "preponderance" of the evidenceon an issue simply means a finding that theproposition is more probable than not. This is thestandard in civil cases (on most issues), and is a muchlower standard than "beyond a reasonable doubt,"which is required in most criminal cases.

THE PROCEDURAL HISTORY OF A SIMPLE CASE A.7he may object to it, and if he loses, he may appealthat mistake to an appellate court. Such cases areagain excellent starting points for the law student,since the court is forced to articulate the subtledifferences between a correct and incorrectstatement of law.After the judge instructs the jury, the lawyersmake their CLOSING ARGUMENTS, in which theysummarize the evidence that was presented, andargue why their client should win. The jury thendeliberates, and if they achieve sufficient unanimity(some courts require only 10 of 12 jurors 99 to agreeon each point), they return a verdict. In older casesthe jury was simply asked to return a verdict for oneparty or the other. Modern procedure sometimespermits the use of JURY INTERROGATORIES orSPECIAL VERDICT FORMS, which list the issues inthe case and ask the jury to check off their decisionon each issue. In this case, for example, the jury wasasked to determine whether Dennis was negligent,whether his negligence proximately caused Paula'sinjuries, and so forth. (See the special verdict form atthe end of the jury instructions.)Once a verdict is rendered, the judge must thenenter a JUDGMENT. The judgment is an order of thecourt that ends the case (unless someone appeals) bydeciding who wins and who (if anyone) must pay,and how much. 100 Prior to entering the judgment, thelawyers may present motions to the judge. Thelosing party often files a MOTION FOR A NEW TRIAL,which attempts to convince the judge either that shemade a serious mistake (for example, in admittingcertain evidence, or in instructing the jury), or thathe did not receive a fair trial (for example, becauseof jury or attorney misconduct). If the judge agrees,she may order a new trial; occasionally a party ispermitted to appeal from that order to ask for areinstatement of the jury's verdict.Another post-trial motion is a MOTION FORJUDGMENT NOTWITHSTANDING THE VERDICT(JNOV). This motion is essentially like the motionfor a directed verdict, but it occurs after the jury hasalready deliberated. A judge will grant a JNOV if shebelieves that there was insufficient evidence for a99 Some courts have juries of six; in such cases only 5 of 6 maybe required to agree on any single issue.100 Most of the time the plaintiff seeks money damages. In somecases, however, the plaintiff may want INJUNCTIVE RELIEF,which asks the court to order the defendant to do something,for example, to stop construction activities threatening anendangered species.reasonable jury to render the verdict it did. 101However, in most cases there will be enoughevidence to create a question about which reasonableminds could differ, and then the jury's verdict mustbe honored. If the verdict is for the plaintiff, thejudge will then enter a judgment ordering thedefendant to pay the amount of money awarded bythe jury, plus TAXABLE COSTS. If the defendantwins, the judge will enter a judgment dismissing theplaintiff's claim, and awarding taxable costs to thedefendant. Taxable costs are certain costs oflitigation (usually not including the lawyer's fees),such as filing fees, witness fees, deposition transcriptfees, and other miscellaneous expenses.Appeal. Once the judgement is entered, thelosing party has the right to appeal within a certaintime period (usually 30 days). 102 There are a varietyof different names for the party who is appealing andthe party who is defending the court's judgment (seeFigure 4).101 Although a trial judge may have denied a motion for adirected verdict, she may still grant the JNOV. Since they arebased on the same standard (whether there is enough evidenceto create a jury question), does this mean the judge haschanged her mind? Not necessarily. The trial judge may haveactually been inclined to grant the motion for a directedverdict, but decided to allow the jury to deliberate, since itcould eliminate an appeal. For example, if (as the movingparty suggests) the evidence is so one-sided that it willsupport only one conclusion, then the jury may very wellreach that conclusion. Then the prospect of appeal has beeneliminated, since the losing party has had his day in court. Onthe other hand, if the jury reaches the "wrong" conclusion, thejudge can "fix" it by granting a JNOV. Then the appellatecourt must decide whether there was indeed enough evidenceto support the jury's verdict. If the trial court is found to be inerror, the appellate court will reinstate the jury's verdict, andthe case ends. Otherwise, if the trial judge doesn't let the jurydeliberate, and the appellate court decides the trial judge waswrong, the case would have to be retried.102Sometimes both parties will appeal; a defendant will claimthat there was no basis for liability to be imposed, while theplaintiff will argue that the jury's verdict was inadequate, or thejudge didn't permit the introduction of evidence which wouldhave produced a more generous award. If both parties appeal,one party will be designated as the appellant, and the other partywill be the CROSS-APPELLANT.

A.8 APPENDIX BAppealing PartyAppellantPetitionerPlaintiff in ErrorParty Defending theCourt=s JudgementAppelleeRespondentDefendant in ErrorFigure 4. Terms Used to Designate the Parties to anAppeal.Sometimes the court will refer to the parties by theircombined title, such as "plaintiff-respondent," or"defendant-petitioner." The name of the court thathears initial appeals depends upon the jurisdiction'scourt structure (see Figure 5). Many state courts andthe federal court system have an intermediate court(a court of appeals) that hears appeals from a trialcourt decision. 103 Some smaller states have only aSupreme Court that hears appeals directly from thetrial court judgment. In jurisdictions with anintermediate court of appeals, the Supreme Courtwill usually hear only those appeals that it choosesto. The U.S. Supreme Court, for example, agrees tohear only about 5% of the cases for which review issought.Type of Court Federal Typical StateTrial District SuperiorIntermediateAppellateCircuitCourt ofAppealsHighestAppellate Supreme SupremeFigure 5. Structure of Appeals Courts.103 The courts in New York are particularly confusing. The trialcourts are called a "supreme court," and the intermediatecourts are called the "appellate division." The highest court inNew York is the Court of Appeals. Other jurisdictions haveseparate courts for criminal appeals. Some jurisdictions referto the appellate court as the "court of errors," meaning thecourt in which losing parties can appeal for the correction oferrors by the trial court.The appeal is commenced by filing a notice ofappeal. If the appellate court accepts review, it willthen set up a timetable for the parties to submit thetrial court record and file briefs. Each party mustdesignate the portions of the trial court record (suchas pleadings, transcripts of hearings or of courttestimony, etc.) that will be needed by the appellatecourt to review the case. In his brief the appellantmust explain to the appellate court what error heclaims was committed by the trial judge. Forexample, he might cite an incorrect jury instruction,or the improper dismissal of a complaint that shouldhave been allowed to go to trial. The respondent, onthe other hand, will argue that the trial judge'sdecisions were based on a correct interpretation ofthe law. After the briefs have been received the courtwill schedule oral argument, at which time thelawyers will come to the appellate court and makebrief presentations and answer the appellate judges'questions.Some time later, the appellate court will deliverits OPINION, which announces the appellate court'sjudgment (who wins or loses) along with theexplanation for its judgment. The appellate court canrespond to the appeal in several different ways. If theappellate court finds no error by the trial judge, itwill AFFIRM the judgment, and the losing party willhave to pay the COSTS ON APPEAL, which are thefiling fees, the costs of reproducing the record attrial, and so forth. In older cases the court willsometimes conclude an opinion affirming the trialcourt's judgment by saying "EXCEPTIONSOVERRULED," that is, the objection or exceptiontaken by the appealing party has been denied.On the other hand, the appellate court may findthat the trial judge did make a mistake of sufficientgravity to require fixing, and will thereforeREVERSE the judgment of the trial court. Reversalactually just means to take away the judgment thathas been entered; it does not necessarily mean thatthe other party has won. The reversal may requirethat there be a new trial (for example, where the juryinstructions were seriously defective), or it mayresult in a final judgment, either dismissing theplaintiff's claim or reinstating the plaintiff'sjudgment. The court will then REMAND the case(send it back) for further proceedings by the trialcourt in conformity to the appellate court's ruling.Older cases will sometimes use the terms"EXCEPTIONS SUSTAINED" in reversing a case,

THE PROCEDURAL HISTORY OF A SIMPLE CASE A.9meaning that the appealing party properly objectedto the trial judge's handling of the case.Modern opinions usually begin with the name ofthe judge who wrote the MAJORITY opinion,followed by her opinion announcing the judgment ofthe court along with the facts and reasoning thatsupport it. Then come the CONCURRING OPINIONSof any judges who agree with the outcome of thecase but disagree with some part of the reasoningused by the majority. Finally come the DISSENTINGOPINIONS of judges who disagree with the outcomeof the case. 104Very old cases, particularly British cases, werereported only by private individuals (like newsreporters) rather than in a written opinion by thecourt itself. Thus they contain only abbreviatedaccounts of the trial court procedure and theopinions delivered orally by the judges. You simplyhave to do the best you can to figure out the outcomeof the case and the reasoning used by the judges.104 Occasionally the court will not produce a majority, butinstead only a PLURALITY OPINION, with which less than amajority of the judges on the court agree. The pluralityopinion plus the concurring opinions create a majority for aparticular outcome, but do not represent a single view of whythe case should come out the way it does. In the U.S. SupremeCourt today, plurality opinions are quite common.

A.10 APPENDIX BCOLUMBIA SUPERIOR COURTCOUNTY OF LINDENPaula Prentice, )Plaintiff )) Action No. 90-12345v. ))Dennis Daniels, )Defendant )_________________)COURT'S INSTRUCTIONS TO THE JURYGIVEN: August 23, 1990BY: THE HONORABLE ROBIN BEANJUDGE - DEPARTMENT 14[The references in brackets are to the Washington Pattern Instructions (WPI).]

THE PROCEDURAL HISTORY OF A SIMPLE CASE A.11INSTRUCTION NO. 1It is your duty to determine the facts in this case from the evidence produced in court. It also is yourduty to accept the law from the judge, regardless of what you personally believe the law is or ought to be. Youare to apply the law to the facts and in this way decide the case.The order in which these instructions are given has no significance as to their relative importance.The attorneys may properly discuss any specific instructions they think are particularly significant. Youshould consider the instructions as a whole and should not place undue emphasis on any particular instructionor part thereof.The evidence you are to consider consists of the testimony of the witnesses and the exhibits admittedinto evidence. It has been my duty to rule on the admissibility of evidence. You must not concern yourselveswith the reasons for these rulings. You will disregard any evidence which either was not admitted or whichwas stricken by the court.In determining whether any proposition has been proved, you should consider all of the evidenceintroduced by all parties bearing on the question. Every party is entitled to the benefit of the evidence whetherproduced by that party or by another party.You are the sole judges of the credibility of the witnesses and of what weight is to be given thetestimony of each. In considering the testimony of any witness, you may take into account the opportunity andability of the witness to observe, the witness's memory and manner while testifying, any interest, bias, orprejudice the witness may have, the reasonableness of the testimony of the witness considered in light of allthe evidence, and any other factors that bear on believability and weight.Counsel's remarks, statements, and arguments are intended to help you understand the evidence andapply the law. They are not evidence, however, and you should disregard any remark, statement, or argumentthat is not supported by the evidence or the law as given to you by the judge.The lawyers have the right and the duty to make any objections that they deem appropriate. Suchobjections should not influence you, and you should make no presumption because of objections by counsel.The law does not permit me to comment on the evidence in any way, and I have not intentionallydone so. If it appears to you that I have so commented, during either the trial or the giving of theseinstructions, you must disregard the comment.Jurors have a duty to consult with one another and to deliberate with a view to reaching a verdict.Each of you must decide the case for yourself, but only after an impartial consideration of the evidence withyour fellow jurors. In the course of deliberations, you should not hesitate to reexamine your own views andchange your opinion if you are convinced it is erroneous. You should not surrender your honest conviction asto the weight or effect of the evidence solely because of the opinions of your fellow jurors, or for the merepurpose of returning a verdict.You are officers of the court and must act impartially and with an earnest desire to determine anddeclare the proper verdict. Throughout your deliberations you will permit neither sympathy nor prejudice toinfluence you. [WPI 1.02]INSTRUCTION NO. 2Evidence may be either direct or circumstantial. Direct evidence is that given by a witness whotestifies concerning facts which the witness has directly observed or perceived through the senses.Circumstantial evidence consists of proof of facts or circumstances which, according to common experience,permit a reasonable inference that other facts existed or did not exist. The law makes no distinction betweenthe weight to be given to either direct or circumstantial evidence. One is not necessarily more or less valuablethan the other. [WPI 1.03]INSTRUCTION NO. 3A witness who has special training, education, or experience in a particular science, profession, orcalling may be allowed to express an opinion in addition to giving testimony as to facts. You are not bound,however, by such an opinion. In determining the credibility and weight to be given such opinion evidence,you may consider, among other things, the education, training, experience, knowledge, and ability of that

A.12 APPENDIX Bwitness, the reasons given for the opinion, the sources of the witness' information, together with the factorsalready given you for evaluating the testimony of any other witness. [WPI 2.10]INSTRUCTION NO. 4Ordinary care means the care a reasonably careful person would exercise under the same or similarcircumstances. [WPI 10.02]INSTRUCTION NO. 5Negligence is the failure to exercise ordinary care. It is the doing of some act which a reasonablycareful person would not do under the same or similar circumstances or the failure to do something which areasonably careful person would have done under the same or similar circumstances. [WPI 10.01]INSTRUCTION NO. 6Contributory negligence is negligence on the part of a person claiming injury or damage which is aproximate cause of the injury or damage complained of.If you find contributory negligence, you must determine the degree of such negligence, expressed asa percentage, attributable to the person claiming such injury or damage. The court will furnish you a specialverdict form for this purpose. Your answers to the questions in the special verdict form will furnish the basisby which the court will reduce the amount of any damages you find to have been sustained by a party whowas contributorily negligent, by the percentage of such contributory negligence. [WPI 11.01]INSTRUCTION NO. 7Every person using a public street or highway has the right to assume that other persons thereon willuse ordinary care and will obey the rules of the road, and has a right to proceed on such assumption until he orshe knows, or in the exercise of ordinary care should know, to the contrary. [WPI 70.06]INSTRUCTION NO. 8Every person has a duty to see what would be seen by a person exercising ordinary care. [WPI 12.06]INSTRUCTION NO. 9The term "proximate cause" means a cause which, in a direct sequence, unbroken by any newindependent cause, produces the injury complained of and without which such injury would not havehappened.There may be one or more proximate causes to an injury. [WPI 15.01]INSTRUCTION NO. 101) The plaintiff claims that the defendant was negligent in one or more of the following respects:(a) Failing to keep a proper lookout.(b) Entering an intersection before it was safe to do so.The plaintiff claims that one or more of these acts was a proximate cause of injuries and damage to plaintiff.The defendant denies these claims.2) In addition, the defendant claims as an affirmative defense that the plaintiff was contributorilynegligent in traveling too fast. The defendant claims that plaintiff's conduct was a proximate cause ofplaintiff's own injuries and damages. The plaintiff denies these claims.3. The defendant further denies the nature and extent of the claimed injuries and damage.[WPI 20.01]

THE PROCEDURAL HISTORY OF A SIMPLE CASE A.13INSTRUCTION NO. 11When it is said that a party has the burden of proof on any proposition, or that any proposition mustbe proved by a "preponderance" of the evidence, or the expression "if you find" is used, it means that youmust be persuaded, considering all the evidence in the case bearing on the question that the proposition onwhich that party has the burden of proof is more probably true than not true. [WPI 21.01]INSTRUCTION NO. 12The plaintiff has the burden of proving each of the following propositions:First, that the defendant acted, or failed to act, in one of the ways claimed by the plaintiff and that inso acting, or failing to act, the defendant was negligent;Second, that the plaintiff was injured;Third, that the negligence of the defendant was a proximate cause of the injury to the plaintiff.The defendant has the burden of proving that the plaintiff was contributorily negligent. [WPI 21.02]INSTRUCTION NO. 13It is the duty of the court to instruct you as to the measure of damages. By instructing you ondamages, the court does not mean to suggest for which party your verdict should be rendered.If your verdict is for the plaintiff, then you must determine the amount of money which willreasonably and fairly compensate the plaintiff for such damages as you find were proximately caused by thenegligence of the defendant.If you find for the plaintiff, your verdict should include the following past economic damageselements:The reasonable value of necessary medical care, treatment, and services received to the present time.The reasonable value of earnings lost to the present time. [WPI 30.08.01]The lesser of the following:(1) The reasonable value of necessary repairs to any property which was damaged plus thedifference between the fair cash market value of the property immediately before theoccurrence and its fair cash market value after it is repaired; or(2) The difference between the fair cash market value of the property immediately before theoccurrence and the fair cash market value of the unrepaired property immediately after theoccurrence. [WPI 30.10]In addition, you should consider the following future economic damages elements:The reasonable value of necessary medical care, treatment, and services with reasonable probabilityto be required in the future. [WPI 30.07.02]The reasonable value of earnings with reasonable probability to be lost in the future. [WPI 30.08.02]In addition, you should consider the following noneconomic damages elements:The nature and extent of the injuries. [WPI 30.04]The disability [and disfigurement] experienced and with reasonable probability to be experienced inthe future. [WPI 30.05]The pain and suffering both mental and physical plaintiff experienced and with reasonable probabilityto be experienced in the future. [WPI 30.06]The burden of proving damages rests with the plaintiff and it is for you to determine whether anyparticular element has been proved by a preponderance of the evidence.

A.14 APPENDIX BYour award must be based upon evidence and not upon speculation, guess, or conjecture.The law has not furnished us with any fixed standards by which to measure noneconomic damages.With reference to these matters, you must be governed by your own judgment, by the evidence in the case,and by these instructions. [WPI 30.01.01]INSTRUCTION NO. 14Upon retiring to the jury room for your deliberation of this case, your first duty is to select a foremanto act as chairman. It is his or her duty to see that discussion is carried on in a sensible and orderly fashion,that the issues submitted for your decision are fully and fairly discussed, and that every juror has a chance tobe heard and to participate in the deliberations upon each question before the jury.You will be furnished with all of the exhibits admitted in evidence, these instructions and a specialverdict form which consists of several questions for you to answer. It is necessary that you answer each ofthese questions unless the questions themselves specifically provide otherwise. You should answer thequestions in the order in which they are asked as your answers to some of them will determine whether youare to answer all, or only some, or none of the others. Accordingly, it is important that you read the questionscarefully and that you follow the directions set forth.This being a civil case, ten of your number may agree upon a verdict. When ten of you have soagreed, fill in the verdict form to express the results of your determination. Whether the foreman is one of theten or not, the foreman will sign the verdict and announce your agreement to the bailiff who will conduct youinto court to declare your verdict.____________________________________[WPI 1.11]JUDGE ROBIN BEAN

THE PROCEDURAL HISTORY OF A SIMPLE CASE A.15COLUMBIA SUPERIOR COURTCOUNTY OF LINDENPaula Prentice, )Plaintiff )) Action No. 90-12345v. )) SPECIAL VERDICT FORMDennis Daniels, )Defendant )____________________________)We, the jury, make the following answers to the questions submitted by the court:QUESTION NO. 1:Was the defendant negligent?Answer: _________ (Yes or No)QUESTION NO. 2:If your answer to Question No. 1 is "yes," then answer both of the following: Wasthe negligence of the defendant a proximate cause of injury or damage to theplaintiff?Answer: __________ (Yes or No)QUESTION NO. 3:Was the plaintiff negligent?Answer: _________ (Yes or No)QUESTION NO. 4:If your answer to Question No. 3 is "yes," then answer the following: What is thetotal amount of the damages to the plaintiff?Answer: $________QUESTION NO. 5:Answer the following only if you answered "yes" to both Question 1 andQuestion 3. If you answered "no" to either of those questions, do not answer thisQuestion No. 5: Using 100 percent as the total combined negligence of the partieswhich contributed to the injuries or damages to the plaintiff, what percentage ofsuch negligence is attributable to plaintiff?Answer: ________ percentQUESTION NO. 6:Answer the following only if you answered "yes" to both Question 1 andQuestion 3. If you answered "no" to either of those questions, do not answer thisQuestion No. 6: Using 100 percent as the total combined negligence of the partieswhich contributed to the injuries or damages to the plaintiff, what percentage ofsuch negligence is attributable to the defendant?Answer: ________ percent[WPI 45.03]_____________________________PRESIDING JUROR

A.16 APPENDIX BAPPENDIX BINSURANCEThe relationship between tort law andinsurance is quite complex, and scholars (and in theage of tort reform, legislatures) debate vigorouslyover what is the proper function of each. 1 A separatecourse on insurance law is available in the lawschool curriculum, and this short treatment is notintended as a substitute for it. However, someunderstanding of the insurance mechanism is usefulfor the first-year law student.1. First-Party and Third-Party InsuranceThe term "insurance" describes twodifferent kinds of arrangements. Of greatestimportance in tort law is liability (also calledcasualty or indemnity 2 insurance), which protects thedefendant in case he is sued by someone. This formof insurance is sometimes called third-partyinsurance as distinguished from first-partyinsurance, which compensates the insured directlyfrom some kind of peril. Take automobile insuranceas a typical example. One part of the automobileinsurance consists of liability coverage. 3 If you getinto an accident, liability coverage provides youwith a defense in case you are sued, and will paydamages to the injured party up to the limitsspecified in the policy (typically $50,000 or1Schwartz, The Ethics and the Economics of TortLiability Insurance, 75 CORNELL L. REV. 313 (1990).$100,000). In addition to liability coverage, you maychoose property or comprehensive coverage, whichwill reimburse you (minus a deductible 4 ) if a treefalls on your car, or if you lose control of your carand strike a tree. The difference between liability(third-party) coverage and property (first-party)coverage is that in the latter you have the claimdirectly against the insurance company for your owndamage; in the case of third-party coverage, on theother hand, you are simply protected against claims(damages suffered) by other individuals.First-party coverage becomes relevant totort law where the claimant is asking the defendantto pay for his injury, but already has his owninsurance. For example, suppose A's house burnsdown and A collects compensation from his fireinsurance company. That is his first-party coverage.In the insurance policy there is usually an agreementthat if the insurance company has to pay out on aclaim, they have the right of subrogation against anyparty who might be responsible for the loss. Forexample, suppose the house was burned down by thefaulty wiring in a toaster. The fire insurancecompany might sue the toaster manufacturer torecover the money they had to pay out on the claim.Similarly, if A was injured in an automobile accidentby B, and A's medical bills are paid by his healthinsurance company, the health insurance companymay assert the right of subrogation to seekreimbursement from the person who caused the23To indemnify means to make the other person whole;many insurance companies incorporate the word"indemnity" into their company name, signifying the factthat they are promising to make a person whole if theyhave an accident or suffer a loss.More than 40 states require some form of third partyliability insurance for autos.4To reduce their claims handling costs, most insurancecompanies offer substantial discounts if you will agree to claimonly the amount above a certain "deductible" (typically $100 or$200), so that the insurance company won't have to pay forminor claims. You still have coverage for larger claims, but itsaves the insurance company the cost of administering smallclaimsCfor which your insurance dollar is not as well spent.

INSURANCE A.17accident; thus A and his health insurance companywill have a claim against the defendant.2. The Scope of CoverageIn the case of first-party coverage, there isusually a financial ceiling that is set in the policy.Health insurance policies typically cover onlycertain kinds of diseases, and contain exclusions forvarious kinds of ailments (dental work, forexample). Life insurance policies have a "facevalue" ($50,000, for example) which specifies howmuch will be paid in the event of death. Third-partycoverage policies vary considerably, not only in theamount of coverage (the dollar limits), but also interms of what is insured against. A homeowner'spolicy, for example, will provide coverage ifsomeone slips and falls on your porch, but doesn'tcover you for automobile accidents. An automobilepolicy will protect you on your family vacation, butwon't insure you if you provide a taxicab service.Business insurance policies are tailored to the kindof business, and can include or exclude such thingsas products liability coverage, malpractice, etc.One thing that all insurance policies share incommon is that they only apply to "occurrences,"which include not only the typical accident such asan auto collision, but also gradual processes such asleakage, earth movement, etc. A person can benegligent and still receive insurance coverage; infact, one of the key features of insurance coverage isthat it will protect a person if he gets sued fornegligently driving his car, manufacturing adefective product, missing the statute of limitations,etc.On the other hand, insurance does not coverintentional acts, or acts so reckless that it would beoffensive to public policy to indemnify the insured.Insurance policies vary on whether they coverpunitive damages; some states prohibit coverage forpunitive damages on the ground that it would runcounter to the purpose for which punishment issought.3. The Interaction of Insurance and Tort LawIn theory, tort law is independent ofinsurance, since it is because of tort law that mostpeople purchase insurance. 5 In a typical tort suit, theword insurance is never mentioned. In fact, lawyersare forbidden from even mentioning insurance(except in limited circumstances 6 ) in the course oftheir presentation of evidence or argument to thejury. Nonetheless, the ubiquity of auto insurance hasled some scholars to conclude that juries, withoutbeing instructed to do so, often include theassumption of coverage in their deliberations. SeeKalven, The Jury, the Law, and the Personal InjuryDamage Award, 19 OHIO ST. L. J. 158 (1958).The availability of insurance has alsoaffected courts' willingness to impose liability uponthe defendant. Since insurance permits the spreadingof the cost of an injury to all defendants within theinsurance pool, not just the individual defendant, itis easier to base the decision on which party in theabstract is better situated to bear the loss. See, forexample, Justice Traynor's concurrence in Escola v.Coca Cola Bottling, Chapter Nine (suggesting thatstrict liability for product defects would be desirablein view of the availability of insurance as amechanism for transferring the cost of injury fromthe innocent purchaser to the manufacturer). But asProsser points out, surprisingly little reference hasbeen made to the impact of insurance on tort law andawards in court opinions. PROSSER & KEETON, ' 82,at 593. The most noticeable effect of insurance hasbeen to abrogate various immunities that onceprovided a defense from liability. Family and charityimmunity are two such examples cited that have, ineffect, been replaced by insurance. Id., at 595.Finally, much has been made in recent years of theso-called insurance crisis of the mid-1980s. Manyscholars (and legislators) were convinced that risinginsurance rates were attributable to a tort systemwhich had expanded liability beyond sensibleboundaries. Priest, The Current Insurance Crisis andModern Tort Law, 96 YALE L. J. 1521 (1987)5Of course, people also purchase first-party insurance(health insurance, fire insurance, life insurance, etc.).However, automobile liability and property damageaccounted for 42 percent ($73.4 billion) of the totalpremiums written. (Fire insurance premiums, forexample, totaled only $7 billion and homeownersliability insurance was set at $15 billion.)6For example, in some cases statutes permit theintroduction of evidence that the plaintiff's damages have alreadybeen compensated, for example through disability insurance.

18 APPENDIX B(suggesting that the desire to compensate plaintiffshas backfired, driving insurance costs beyond themeans of most low-income people and reducing theamount of coverage available to society as a whole).A contrary view suggests that the steep rise ininsurance rates in the early 1980s were more afunction of investment cycles, and that rising rateswere mostly attributable to the softening demand forinvestment money than to changes in tort liabilityrules. 74. Practice Considerations Regarding InsuranceFor tort lawyers, insurance coverage is ofcritical importance to both to the plaintiff and to thedefendant. From the perspective of the plaintiff'slawyer, the availability of insurance may make thedifference between a case that is worth taking andone that is not. If the plaintiff is injured in anautomobile collision by an uninsured driver, theremay be no point in suing the driver. 8 Similarly, if theother driver's policy has limits of $20,000, there maybe little to recover. Remember that a plaintiff is notlimited to the defendant's available insurance - thedefendant is still obligated to pay, even if hisinsurance doesn't cover the accident - but in mostcases the uninsured defendant doesn't have much topay in damages. Typically the bankruptcy statuteswill permit the defendant to declare bankruptcy andprotect his personal possessions and even someequity in his home from the reach of creditors,including the tort plaintiff.On the other hand, a defendant oftendepends upon insurance to protect him from thedevastating effects of a lawsuit. Often thedefendant's lawyer is initially hired by the insurancecompany when the insured reports the claim to hisinsurance company. Prior to hiring a lawyer, thecompany will often employ a claims adjuster toattempt to settle with the plaintiff. If there is nosettlement and a lawsuit is filed, a lawyer will behired to defend the claim. This often createssomething of a conflict of interest, since theinsurance company pays the lawyer's fees, andusually represents an ongoing source of business. Onthe other hand, the insured who is actually beingrepresented may have interests contrary to those ofthe company. The defendant may want to settle forany amount within his insurance company, even ifthe company would like to gamble on a trialoutcome that could exceed the insurance coveragebut might also result in a defeat for the plaintiff or avery modest recovery. The law is clear that where alawyer is hired pursuant to an insurance contract thatrequires the company to provide the insured with adefense, the lawyer's loyalty is solely to the insured,and that the lawyer must resolve any conflict infavor of protecting the insured. If the insurancecompany fails to live up to their obligations in theinsurance contract, the insured may sue the companyfor "bad faith." Claims based upon the breach of thecovenant of good faith and fair dealing are a majorgrowth industry in law in the last fifteen years.Recent cases in California have cut back on bad faithin both insurance and employment cases. SeeMoradi-Shalal v. Firemen's Fund Ins. Cos., 46 Cal.3d 287, 250 Cal. Rptr. 116, 758 P.2d 58 (1988)(insurance); and Foley v. Interactive Data Corp., 47Cal. 3d 654, 254 Cal. Rptr. 211 (1988)(employment).78See The Manufactured Crisis, Liability-InsuranceCompanies Have Created a Crisis and Dumped It OnYou, CONSUMER REPORTS (August 1986); Mazzagatti v.Everingham, 512 Pa. 266, 516 A.2d 672 (1986)(LARSEN, J., dissenting).However, many automobile policies provide uninsuredmotorist insurance, which obligates the policyholder'sinsurance company to pay damages on behalf of theuninsured driver, if he cannot pay.

APPENDIX CFORMS OF ACTIONForms of action are ancient common lawprocedural devices which have had a great impact onthe development of substantive tort law. At commonlaw, pleading rules were much less flexible than theyare today. Instead of pleading facts and thendeciding what legal doctrine(s) would allowrecovery on those facts, a plaintiff had to choose the"form of action" that fit his case, and then provefacts constituting that particular form. In torts, aplaintiff was relegated to bringing suit either fortrespass or trespass on the case. In general, a writ fortrespass required some harm to be caused by thedefendant's use of force on the plaintiff's person orproperty. Trespass on the case was used in situationswhere the defendant's actions caused more indirectharms.A classic example of the differencesbetween the two writs was formulated in Reynolds v.Clarke, 1 Str. 634, 92 Eng. Rep. 410 (1726). If thedefendant threw a log onto a highway and hit theplaintiff, the plaintiff could sue for trespass. If thelog instead was negligently dropped on the highwayand later the plaintiff tripped over it, the plaintiffcould only sue for trespass on the case.The procedural differences between the twowrits were very important in bringing a plaintiff'scase. Under trespass the plaintiff was allowed toseize the defendant's property to force the defendantinto court. Under a writ of trespass on the case,however, the plaintiff had to use a summons andcomplaint. Another difference was that in someactions for trespass the plaintiff was entitled only todamages. Under trespass on the case damages andcosts were available - the modern English rule today.See, Savignac v. Roome, 6 D.& E. (6 T.R.) 129, 101Eng. Rep. 470 (1794). Other differences, such asdiffering statutes of limitations, were not resolveduntil much later. See, Letang v. Cooper, 1 Q.B. 232(1965).Since the plaintiff had to choose which writto use, choosing incorrectly could be fatal to hisaction. At a minimum the differences created someconfusion. In Scott v. Shepherd, 2 Wm. Bl. 892, 96Eng. Rep. 525 (1773), the justices could not agree asto whether a squib (firecracker) thrown into acovered market by the defendant constituted trespassor trespass on the case. A merchant had picked upthe lighted squib and threw it across the room.Another merchant then picked it up and threw itagain, striking the plaintiff as it exploded and puttingout his eye. Was the defendant's initial action theimmediate cause of the plaintiff's injury, andtrespass, or only a consequential result and trespasson the case? (All justices agreed the merchants wereallowed to protect themselves and their wares bytossing the squib.) Two of three justices ruled infavor of the plaintiff, who had brought the suit intrespass.Another complication caused by thedivision in forms of action concerned negligentemployees. Their masters could only be sued on thecase, as being indirectly liable for the injuriesoccasioned by their employees. Pity the plaintiffwho sued on the case only to find out it was not anemployee who actually injured him but theemployer. See, McManus v. Crickett, 1 East 106, 102Eng. Rep. 580 (1800). Much confusion waseliminated by Williams v. Holland, 10 Bing. 112,131 Eng. Rep. 848 (1833), when the Court ofCommon Pleas ruled a plaintiff could sue on thecase so long as the defendant's negligence caused theharm complained of.For a history of trespass andcase, see M. J. Prichard, Trespass, Case and the Rulein Williams v. Holland, 1964 CAMB. L.J. 234.For a history of trespass and case, see M.J.Prichard, Trespass, Case and the Rule in Williams v.Holland, 1964 CAMB. L.J. 234.