Also known as: scope of risk
Written by attorneys — see sources below.
A limitation on tort liability that confines an actor's responsibility to those harms that arise from the very risks that rendered the actor's conduct tortious. The inquiry focuses on the hazards that made the original conduct negligent and asks whether the plaintiff's injury falls among them.
Sterling Manufacturing left a loading dock unsecured after employees finished their shift. An intruder entered through the open gate, stole a forklift, and drove it into a neighboring warehouse where it struck and injured Skylar Sullivan. The risk of unauthorized entry and resulting property damage or personal injury was precisely the hazard that made leaving the dock unsecured negligent.
Sydney Santos drove negligently and struck a vehicle carrying Samantha Stone. Stephen Shaw, Samantha's father, witnessed the collision from across the street and suffered severe emotional distress. The risk that made Sydney's driving negligent was physical injury to other motorists and pedestrians in the path of the car, not emotional injury to distant family members who observed the accident.
On September 27, 1964, at approximately 4:30 p.m., at the intersection of Blue Ridge Road and Chenango Avenue in Sacramento County, defendant David Legg operated his motor vehicle in such a manner that it struck and killed two-year-old Erin Lee Dillon. Plaintiff Cheryl Dillon, the mother of the deceased child, was a pedestrian at or near the intersection in close proximity to the accident and actually witnessed the impact and death of her daughter. Plaintiff Robert Dillon, the minor brother of the deceased, was also a pedestrian in close proximity to the accident and witnessed the impact and death of his sister. The complaint set forth three separate counts seeking recovery for the resulting injuries. In the first count, Cheryl Dillon alleged that as a direct and proximate result of the defendant's negligence she suffered fright, shock, and mental anguish and sustained physical injuries along with great emotional and physical pain and suffering. The second count alleged that Robert Dillon suffered great emotional and physical pain and suffering as a direct and proximate result of witnessing the accident. The third count alleged that Clyde Dillon, the father of the deceased minor, sustained a loss of the affection, society, and companionship of his daughter and incurred funeral and burial expenses. Defendant demurred to the complaint on the ground that it failed to state facts sufficient to constitute a cause of action. The trial court sustained the demurrers without leave to amend and entered a judgment of dismissal in favor of the defendant. Plaintiffs appealed from that judgment to the Supreme Court of California. In related proceedings, the trial court granted a motion for judgment on the pleadings against the mother's cause of action but denied a similar motion as to the sister's cause of action, and later denied a motion for summary judgment on the sister's claim. The case thus presented claims by a mother who was not within the zone of danger and by a sibling who may have been within it.
View caseThe scope-of-the-risk test asks whether the harm that occurred is among the hazards that made the defendant's conduct negligent in the first place. But-for causation is a broader factual inquiry that includes every consequence that would not have happened without the defendant's act. The risk test narrows liability to harms that fall within the original zone of danger created by the negligence.
An intervening criminal act remains within the scope of the risk when the defendant's conduct created or increased the very opportunity for that type of criminal harm. If the defendant undertook a duty to protect against unauthorized entry and then performed that duty negligently, the resulting criminal intrusion and injury are treated as within the original risk rather than as a superseding cause.
Supporting sources
An extraordinary natural event relieves liability only when it produces a kind of harm different from the risk that made the defendant's conduct negligent. If the resulting injury is of the same general type as the original risk, the natural event does not operate as a superseding cause even though its magnitude was unusual.
Supporting sources
Identify each negligent omission separately, state the particular risk it created, then compare that risk to the harm that actually occurred. For each omission, determine whether the intervening act or force produced a harm of the same kind or a qualitatively different kind. Conclude by weighing which risks remain within the original scope after the comparison.
Supporting sources