Also known as: scope of the risk analysis · scope-of-risk analysis · scope of risk analysis · scope of the risk · scope-of-risk doctrine
Written by attorneys · grounded in primary & secondary sources — see below
A method for assessing proximate causation in negligence cases by identifying the risks that rendered the defendant's conduct unreasonable and then determining whether the plaintiff's harm falls among those risks. The analysis treats an intervening force as non-superseding when the resulting harm is a realization of the very danger that made the original conduct wrongful.
Skyline Construction left an open trench in a busy intersection without barriers. A passing motorist who had skipped medication lost control and struck worker Seth Shapiro. The court applied scope-of-the-risk analysis and held Skyline liable because the precise sequence of events realized the danger that barriers were meant to prevent.
Simon Stern negligently struck a car carrying Sydney Santos's child. Santos, standing nearby, witnessed the impact and suffered severe emotional distress. Scope-of-the-risk analysis permitted recovery because the emotional harm to a close family member was among the risks that made Stern's driving unreasonable in the first place.
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Scope-of-the-risk analysis asks whether the harm that occurred is among the specific risks that made the defendant's conduct negligent. It supplies greater clarity than a general foreseeability inquiry by focusing the factfinder on the precise dangers that justified labeling the conduct wrongful.
Supporting sources
No. When the third party's negligence produces the very type of harm the original conduct created a risk of, scope-of-the-risk analysis treats the intervention as non-superseding and keeps liability on the first actor.
Supporting sources
The analysis still permits liability if the harm to that plaintiff is a realization of one of the risks that rendered the conduct unreasonable, even if the plaintiff was not the primary target of the danger.
Supporting sources
…to those risks or hazards whose likelihood made the conduct unreasonably dangerous. Duty, in other words, is measured by the scope of the risk which negligent conduct foreseeably entails." (2 Harper & James, The Law of Torts, supra, at p. 1018; fns. omitted.) [6a] This foreseeable risk may be of two types. The first class…