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 — see sources 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.
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 caseScope-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…