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Judge or Jury: Who Should Decide?
  • 1 Pokora v. Wabash Railway Co.--"The Driver Who Failed to Step Out and Look Around"

    Should judges impose strict rules defining reasonable conduct in dangerous or unusual situations or should they defer to the jury?

    1
    292 U.S. 98
    2
    54 S.Ct. 580
    3
    78 L.Ed. 1149
    5
    POKORA
    6
    v.
    WABASH RY. CO.
    7
    No. 585.
    8
    Argued March 8, 9, 1934.
    9
    Decided April 2, 1934.
    10

    [292 U.S. 99] Mr. Wm. St. J. Wines, of Springfield, Ill., for petitioner.

    11

    Mr. Homer Hall, of St. Louis, Mo., for respondent.

    12
    Mr. Justice CARDOZO delivered the opinion of the Court.
    13

    John Pokora, driving his truck across a railway grade crossing in the city of Spring field, Ill., was struck by a train and injured. Upon the trial of his suit for damages, the District Court held that he had been guilty of contributory negligence, and directed a verdict for the defendant. The Circuit Court of Appeals (one judge dissenting) affirmed (66 F.(2d) 166), resting its judgment on the opinion of this court in B. & O.R. Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A.L.R. 645. A writ of certiorari brings the case here.

    14

    Pokora was an ice dealer, and had come to the crossing to load his truck with ice. The tracks of the Wabash Railway are laid along Tenth street, which runs north and south. There is a crossing at Edwards street running east and west. Two ice depots are on opposite corners of Tenth and Edward streets; one at the northeast corner, the other at the southwest. Pokora, driving west along Edwards street, stopped at the first of these corners to get his load of ice, but found so many trucks ahead of him that he decided to try the depot on the other side of the way. In this crossing of the railway, the accident occurred.

    15

    [292 U.S. 100] The defendant has four tracks on Tenth street; a switch track on the east, then the main track, and then two switches. Pokora, as he left the northeast corner where his truck had been stopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet east of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet from the north line of Edwards street, cut off his view of the tracks beyond him to the north. At the same time he listened. There was neither bell nor whistle. Still listening, he crossed the switch, and reaching the main track was struck by a passenger train coming from the north at a speed of twenty-five to thirty miles an hour.

    16

    The burden of proof was on the defendant to make out the defense of contributory negligence. Miller v. Union Pacific R. Co., 290 U.S. 227, 232, 54 S.Ct. 172, 78 L.Ed. 285. The record does not show in any conclusive way that the train was visible to Pokora while there was still time to stop. A space of eight feet lay between the west rail of the switch and the east rail of the main track, but there was an overhang of the locomotive (perhaps two and a half or three feet), as well as an overhang of the box cars, which brought the zone of danger even nearer. When the front of the truck had come within this zone, Pokora was on his seat, and so was farther back (perhaps five feet or even more), just how far we do not know, for the defendant has omitted to make proof of the dimensions. Nice calculations are submitted in an effort to make out that there was a glimpse of the main track before the switch was fully cleared. Two feet farther back the track was visible, it is said, for about 130 or 140 feet. But the view from that position does not tell us anything of significance unless we know also the position of the train. Pokora was not protected by his glimpse of 130 feet if the train at the same moment was 150 feet away or farther. For all that appears he had no view of the main track northward, or none for [292 U.S. 101] a substantial distance, till the train was so near that escape had been cut off. Cf. Dobson v. St. Louis S.F. Ry. Co., 223 Mo.App. 812, 822, 10 S.W.(2d) 528; Turner v. Minneapolis, St. P. & S.S.M.R. Co., 164 Minn. 335, 341, 205 N.W. 213.

    17

    In such circumstances the question, we think, was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt it was his duty to look along the track from his seat, if looking would avail to warn him of the danger. This does not mean, however, that if vision was cut off by obstacles, there was negligence in going on, any more than there would have been in trusting to his ears if vision had been cut off by the darkness of the night. Cf. Norfolk & W. Ry. v. Holbrook (C.C.A.) 27 F.(2d) 326. Pokora made his crossing in the daytime, but like the traveler by night he used the faculties available to one in his position. Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690, Ann. Cas. 1915B, 598; Parsons v. Syracuse, B. & N.Y.R. Co., 205 N.Y. 226, 228, 98 N.E. 331. A jury, but not the court, might say that with faculties thus limited he should have found some other means of assuring himself of safety before venturing to cross. The crossing was a frequented highway in a populous city. Behind him was a line of other cars, making ready to follow him. To some extent, at least, there was assurance in the thought that the defendant would not run its train at such a time and place without sounding bell or whistle. L. & N.R. Co. v. Summers (C.C.A.) 125 F. 719, 721; Smith-Hurd Rev. St. 1933, c. 114, § 59, Illinois Revised Statutes (1933 Ed.), c. 114, par. 84.[1] Indeed, the [292 U.S. 102] statutory signals did not exhaust the defendant's duty when to its knowledge there was special danger to the traveler through obstructions on the roadbed narrowing the field of vision. Wright v. St. Louis-S.F. Ry. Co., 327 Mo. 557, 566, 37 S.W.(2d) 591; Hires v. Atlantic City R. Co., 66 N.J. Law, 30, 48 A. 1002; Cordell v. N.Y.C. & H.R.R. Co., 70 N.Y. 119, 26 Am.Rep. 550. All this the plaintiff, like any other reasonable traveler, might fairly take into account. All this must be taken into account by us in comparing what he did with the conduct reasonably to be expected of reasonable men. Grand Trunk R. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485; Flannelly v. Delaware & Hudson Co., 225 U.S. 597, 32 S.Ct. 783, 56 L.Ed. 1221, 44 L.R.A.(N.S.) 154.

    18

    The argument is made, however, that our decision in B. & O.R. Co. v. Goodman, supra, is a barrier in the plaintiff's path, irrespective of the conclusion that might commend itself if the question were at large. There is no doubt that the opinion in that case is correct in its result. Goodman, the driver, traveling only five or six miles an hour, had, before reaching the track, a clear space of eighteen feet within which the train was plainly visible.[2] With that opportunity, he fell short of the legal standard of duty established for a traveler when he failed to look and see. This was decisive of the case. But the court did not stop there. It added a remark, unnecessary upon the facts before it, which has been a fertile source of controversy. 'In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look.'

    19

    There is need at this stage to clear the ground of brushwood that may obscure the point at issue. We do [292 U.S. 103] not now inquire into the existence of a duty to stop, disconnected from a duty to get out and reconnoitre. The inquiry, if pursued, would lead us into the thickets of conflicting judgments.[3] Some courts apply what is often spoken of as the Pennsylvania rule, and impose an unyielding duty to stop, as well as to look and listen, no matter how clear the crossing or the tracks on either side. See, e.g., Benner v. Philadelphia & Reading R. Co., 262 Pa. 307, 105 A. 283, 2 A.L.R. 759; Thompson v. Pennsylvania R. Co., 215 Pa. 113, 64 A. 323, 7 Ann.Cas. 351; Hines v. Cooper, 205 Ala. 70, 88 So. 133; cf. Pennsylvania R. Co. v. Yingling, 148 Md. 169, 129 A. 36, 41 A.L.R. 398. Other courts, the majority, adopt the rule that the traveler must look and listen, but that the existence of a duty to stop depends upon the circumstances, and hence generally, even if not invariably, upon the judgment of the jury. See, e.g., Judson v. Central Vermont R. Co., 158 N.Y. 597, 605, 606, 53 N.E. 514, and cases cited; Love v. Fort Dodge R. Co., 207 Iowa, 1278, 1286, 224 N.W. 815; Turner v. Minneapolis R. Co., supra; Wisconsin & Arkansas Lumber Co. v. Brady, 157 Ark. 449, 454, 248 S.W. 278; cf. Metcalf v. Central Vermont R. Co., 78 Conn. 614, 63 A. 633; Gills v. N.Y., C. & St. L.R. Co., 342 Ill. 455, 174 N.E. 523. The subject has been less considered in this court, but in none of its opinions is there a suggestion that at any and every crossing the duty to stop is absolute, irrespective of the danger. Not even in B. & O.R. Co. v. Goodman, supra, which goes farther than the earlier cases, is there support for such a rule. To the contrary, the opinion makes it clear that the duty is conditioned upon the presence of impediments whereby sight and hearing become inadequate for the traveler's protection. Cf. Murray v. So. Pacific Co., 177 Cal. 1, 10, 169 P. 675; Williams v. Iola Electric R. Co., 102 Kan. 268, 271, 170 P. 397.

    20

    [292 U.S. 104] Choice between these diversities of doctrine is unnecessary for the decision of the case at hand. Here the fact is not disputed that the plaintiff did stop before he started to cross the tracks. If we assume that by reason of the box cars, there was a duty to stop again when the obstructions had been cleared, that duty did not arise unless a stop could be made safely after the point of clearance had been reached. See, e.g., Dobson v. St. Louis-S.F. Ry. Co., supra. For reasons already stated, the testimony permits the inference that the truck was in the zone of danger by the time the field of vision was enlarged. No stop would then have helped the plaintiff if he remained seated on his truck, or so the triers of the facts might find. His case was for the jury, unless as a matter of law he was subject to a duty to get out of the vehicle before it crossed the switch, walk forward to the front, and then, afoot, survey the scene. We must say whether his failure to do this was negligence so obvious and certain that one conclusion and one only is permissible for rational and candid minds. Grand Trunk Ry. Co. v. Ives, supra.

    21

    Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous. If the driver leaves his vehicle when he nears a cut or curve, he will learn nothing by getting out about the perils that lurk beyond. By the time he regains his seat and sets his car in motion, the hidden train may be upon him. See, e.g., Torgeson v. Missouri-K.-T.R. Co., 124 Kan. 798, 800, 801, 262 P. 564, 55 A.L.R. 1335; Dobson v. St. Louis-S.F.R. Co., supra; Key v. Carolina & N.W.R. Co., 150 S.C. 29, 35, 147 S.E. 625; Georgia Railroad & Banking Co. v. Stanley, 38 Ga.App. 773, 778, 145 S.E. 530. Often the added safeguard will be dubious though the track happens to be straight, as [292 U.S. 105] it seems that this one was, at all events as far as the station, about five blocks to the north. A train traveling at a speed of thirty miles an hour will cover a quarter of a mile in the space of thirty seconds. It may thus emerge out of obscurity as the driver turns his back to regain the waiting car, and may then descend upon him suddenly when his car is on the track. Instead of helping himself by getting out, he might do better to press forward with all his faculties alert. So a train at a neighboring station, apparently at rest and harmless, may be transformed in a few seconds into an instrument of destruction. At times the course of safety may be different. One can figure to oneself a roadbed so level and unbroken that getting out will be a gain. Even then the balance of advantage depends on many circumstances and can be easily disturbed. Where was Pokora to leave his truck after getting out to reconnoitre? If he was to leave it on the switch, there was the possibility that the box cars would be shunted down upon him before he could regain his seat. The defendant did not show whether there was a locomotive at the forward end, or whether the cars were so few that a locomotive could be seen. If he was to leave his vehicle near the curb, there was even stronger reason to believe that the space to be covered in going back and forth would make his observations worthless. One must remember that while the traveler turns his eyes in one direction, a train or a loose engine may be approaching from the other.

    22

    Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law. The need is the more urgent when there is no background of experience out of which the standards have emerged. They are then, not the natural flowerings of behavior in its customary forms, but rules artificially developed, and imposed from without. Extraordinary situations may not wisely or fairly be subjected to [292 U.S. 106] tests or regulations that are fitting for the commonplace or normal. In default of the guide of customary conduct, what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of a jury. Dolan v. D. & H.C. Co., 71 N.Y. 285, 288, 289; Davis v. N.Y.C. & H.R.R. Co., 47 N.Y. 400, 402. The opinion in Goodman's Case has been a source of confusion in the federal courts to the extent that it imposes a standard for application by the judge, and has had only wavering support in the courts of the states.[4] We limit it accordingly.

    23

    The judgment should be reversed, and the cause remanded for further proceedings in accordance with this opinion.

    24

    It is so ordered.

    25

    [1] The Illinois Act provides: 'Every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached.'

    26

    [2] For a full statement of the facts, see the opinion of the Circuit Court of Appeals, 10 F.(2d) 58, 59.

    27

    [3] The cases are collected in 1 A.L.R. 203 and 41 A.L.R. 405 notes.

    28

    [4] Many cases are collected in 43 Harvard Law Review 926, 929, 930, and in 56 A.L.R. 647 note.

    29

    See, also, Dobson v. St. Louis-S.F.R. Co., supra; Key v. Carolina & N.W.R. Co., supra; Gills v. N.Y., C. & St. L.R. Co., supra; Georgia Railroad & Banking Co. v. Stanley, supra; Miller v. N.Y.C.R. Co., 226 App.Div. 205, 208, 234 N.Y.S. 560; Id., 252 N.Y. 546, 170 N.E. 137; Schrader v. N.Y., C. & St. L.R. Co., 254 N.Y. 148, 151, 172 N.E. 272; Dolan v. D. & H.C. Co., supra; Huckshold v. St. L., I.M. & S.R. Co., 90 Mo. 548, 2 S.W. 794. Contra: Koster v. Southern Pacific Co., 207 Cal. 753, 762, 279 P. 788; Vaca v. Southern Pacific Co., 91 Cal.App. 470, 475, 267 P. 346; Davis v. Pere Marquette R. Co., 241 Mich. 166, 169, 216 N.W. 424; cf. Torgeson v. Missouri-K.-T.R. Co., supra.

  • 2 Andrews v. United Airlines, Inc.--"The Baggage May Have Shifted During Flight Case"

    When should judges determine reasonable care at summary judgment and when should they defer to juries?

    1
    24 F.3d 39
    2
    62 USLW 2705
    3
    Billie Jean ANDREWS, Plaintiff-Appellant,
    v.
    UNITED AIRLINES, INC., a corporation; Does 1 through 50, inclusive, Defendant-Appellee.
    4
    No. 92-16663.
    5
    United States Court of Appeals,
    Ninth Circuit.
    6
    Argued and Submitted Feb. 10, 1994.
    Decided May 13, 1994.
    7

    [24 F.3d 40] Andrew Zabronsky, Susie Injijian, Deborah M. Heller, Sterns, Walker & Lods, San Francisco, CA, for plaintiff-appellant.

    8

    Philip R. Diamond, James C. Nielson, Peter M. Hart, Wright, Robinson, McCammon, Osthimer & Tatum, San Francisco, CA, for defendant-appellee.

    9

    Appeal from the United States District Court for the Northern District of California.

    10

    Before: FLETCHER, KOZINSKI and TROTT, Circuit Judges.

    11

    Opinion by Judge KOZINSKI.

    12

    KOZINSKI, Circuit Judge.

    13

    We are called upon to determine whether United Airlines took adequate measures to deal with that elementary notion of physics--what goes up, must come down. For, while the skies are friendly enough, the ground can be a mighty dangerous place when heavy objects tumble from overhead compartments.

    14
    I
    15

    During the mad scramble that usually follows hard upon an airplane's arrival at the gate, a briefcase fell from an overhead compartment and seriously injured plaintiff Billie Jean Andrews. No one knows who opened the compartment or what caused the briefcase to fall, and Andrews doesn't claim that airline personnel were involved in stowing the object or opening the bin. Her claim, rather, is that the injury was foreseeable and the airline didn't prevent it.

    16

    The district court dismissed the suit on summary judgment, and we review de novo. Dorsey v. National Enquirer, Inc., 973 F.2d 1431, 1434 (9th Cir.1992). This is a diversity action brought in California, whose tort law applies. Id.

    17
    II
    18

    The parties agree that United Airlines is a common carrier and as such "owe[s] both a duty of utmost care and the vigilance of a very cautious person towards [its] passengers." Acosta v. Southern Cal. Rapid Transit Dist., 2 Cal.3d 19, 27, 84 Cal.Rptr. 184, 465 P.2d 72 (1970); see Cal. Civil Code Sec. 2100 (West 1985); United Air Lines, Inc. v. Wiener, 335 F.2d 379, 402 (9th Cir.1964). Though United is "responsible for any, even the slightest, negligence and [is] required to do all that human care, vigilance, and foresight reasonably can do under all the circumstances," Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72, it is not an insurer of its passengers' safety, Lopez v. Southern Cal. Rapid Transit Dist., 40 Cal.3d 780, 785, 221 Cal.Rptr. 840, 710 P.2d 907 (1985). "[T]he degree of care and diligence which [it] must exercise is only such as can reasonably be exercised consistent with the character and mode of conveyance adopted and the practical operation of [its] business...." Id.

    19

    To show that United did not satisfy its duty of care toward its passengers, Ms. Andrews presented the testimony of two witnesses. The first was Janice Northcott, United's Manager of Inflight Safety, who disclosed that in 1987 the airline had received 135 reports of items falling from overhead bins. As a result of these incidents, Ms. Northcott testified, United decided to add a warning to its arrival announcements, to wit, that items stored overhead might have shifted during flight and passengers should use caution in opening the bins. ER 10. This [24 F.3d 41] announcement later became the industry standard. ER 81.

    20

    Ms. Andrews's second witness was safety and human factors expert Dr. David Thompson, who testified that United's announcement was ineffective because passengers opening overhead bins couldn't see objects poised to fall until the bins were opened, by which time it was too late. Dr. Thompson also testified that United could have taken additional steps to prevent the hazard, such as retrofitting its overhead bins with baggage nets, as some airlines had already done, ER 53,[1] or by requiring passengers to store only lightweight items overhead, ER 54.[2]

    21

    United argues that Andrews presented too little proof to satisfy her burden under Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). One hundred thirty-five reported incidents, United points out, are trivial when spread over the millions of passengers travelling on its 175,000 flights every year. ER 11. Even that number overstates the problem, according to United, because it includes events where passengers merely observed items falling from overhead bins but no one was struck or injured. ER 80.[3] Indeed, United sees the low incidence of injuries as incontrovertible proof that the safety measures suggested by plaintiff's expert would not merit the additional cost and inconvenience to airline passengers.

    22
    III
    23

    It is a close question, but we conclude that plaintiff has made a sufficient case to overcome summary judgment. United is hard-pressed to dispute that its passengers are subject to a hazard from objects falling out of overhead bins, considering the warning its flight crews give hundreds of times each day. The case then turns on whether the hazard is serious enough to warrant more than a warning. Given the heightened duty of a common carrier, Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72, even a small risk of serious injury to passengers may form the basis of liability if that risk could be eliminated "consistent with the character and mode of [airline travel] and the practical operation of [that] business...." Lopez, 40 Cal.3d at 785, 221 Cal.Rptr. 840, 710 P.2d 907. United has demonstrated neither that retrofitting overhead bins with netting (or other means) would be prohibitively expensive, nor that such steps would grossly interfere with the convenience of its passengers. Thus, a jury could find United has failed to do "all that human care, vigilance, and foresight reasonably can do under all the circumstances." Acosta, 2 Cal.3d at 27, 84 Cal.Rptr. 184, 465 P.2d 72.

    24

    The reality, with which airline passengers are only too familiar, is that airline travel has changed significantly in recent years. As harried travelers try to avoid the agonizing ritual of checked baggage, they hand-carry more and larger items--computers, musical instruments, an occasional deceased relative. See Jo Beth McDaniel, Final Call for Carry-On Cargo, Travel Weekly, Feb. 28, 1988, at 22; Valarie Basheda, Airline Sued Over Fallen Luggage Cart, Gannett News Serv., Dec. 3, 1992. The airlines have coped with this trend, but perhaps not well enough. Given its awareness of the hazard, United may not have done everything technology permits and prudence dictates to eliminate it. See Treadwell v. Whittier, 80 Cal. 574, 600, 22 P. 266 (1889) ("common carriers ... must keep pace with science, art, and modern improvement"); [24 F.3d 42] Valente v. Sierra Ry., 151 Cal. 534, 543, 91 P. 481 (1907) (common carriers must use the best precautions in practical use "known to any company exercising the utmost care and diligence in keeping abreast with modern improvement in ... such precautions").

    25

    Jurors, many of whom will have been airline passengers, will be well equipped to decide whether United had a duty to do more than warn passengers about the possibility of falling baggage. A reasonable jury might conclude United should have done more; it might also find that United did enough. Either decision would be rational on the record presented to the district court which, of course, means summary judgment was not appropriate.

    26

    REVERSED AND REMANDED.

    27

    [1] Dr. Thompson testified British Airways began using restraining netting in 1989. ER 53. Apparently at least one other airline, Virgin Atlantic, has followed suit. See Kevin Rafferty, Tricky Thoughts Aloft, Financial Times, May 2, 1992 (Travel), at XI.

    28

    [2] He recognized that this was not a very practical solution from either the airlines' or the passengers' point of view.

    29

    [3] Curiously, neither side introduced these reports into the record. This proved fatal to Andrews's claim below, as the district court, relying on Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir.1991), premised its dismissal on plaintiff's failure to present evidence that any of the 135 incidents bore "some rational relationship" to her own, so as to show United was on notice of a hazard. ER 124. While the district court may have been correct were notice in doubt, here United recognized the hazard as early as 1987. See p. 40-41 supra. The question is whether it did enough to address it.

  • 3 Akins v. Glen Falls--"The Blinding Foul Ball"

    What level of guidance may a judge give the jury with respect to reasonable care?

    1
    441 N.Y.S.2d 644
    2
    53 N.Y.2d 325, 424 N.E.2d 531
    3
    Robin AKINS, Respondent,
    v.
    GLENS FALLS CITY SCHOOL DISTRICT, Appellant.
    4
    Court of Appeals of New York.
    5
    June 18, 1981.
    6

    Peter D. FitzGerald, Glens Falls, for appellant.

    7

    Robert S. Stewart, Glens Falls, for respondent.

    8

    OPINION OF THE COURT

    9

    JASEN, Judge.

    10

    On this appeal, we are called upon to define the scope of the duty owed by a [441 N.Y.S.2d 645] proprietor of a baseball field to the spectators attending its games. The specific question presented is whether such an owner, having provided protective screening for the area behind home plate, is liable in negligence for the injuries sustained by a spectator as a result of being struck by a foul ball while standing in an unscreened section of the field. This case does not involve the "culpable conduct" (CPLR 1411)--be it assumption of risk or contributory negligence--of a spectator injured in the course of a baseball game.

    11

    In the early afternoon of April 14, 1976, plaintiff attended a high school baseball game that was being played on a field owned and maintained by defendant Glens Falls City School District. The field was equipped with a backstop 24 feet high and 50 feet wide. This backstop was located 60 feet behind home plate and was positioned in front of bleachers that could seat approximately 120 adults. There was additional standing room behind the backstop as well. Two chain link fences, three feet in height, ran from each end of the backstop along the base lines to a distance approximately 60 feet behind first and third base.

    12

    Plaintiff arrived while the game was in progress and elected to view the contest from a position behind the three-foot fence along the third base line, approximately 10 to 15 feet from the end of the backstop and 60 feet from home plate. As there were no seating facilities for spectators along the base lines, plaintiff had to stand in order to watch the game. At the time, other spectators were also standing along the base lines behind the three-foot fence. There was, however, no proof that the screened bleachers behind home plate were filled or that plaintiff was prevented from watching the game from behind the backstop. Approximately 10 minutes after arriving at the baseball field, plaintiff was struck in the eye by a sharply hit foul ball, causing her serious and permanent injury.

    13

    The present action was then commenced by the plaintiff against the defendant school district. Alleging that the school district was negligent in failing to provide safe and proper screening devices along the base lines of its field, plaintiff sought judgment against the school district in the sum of $250,000. After trial, the jury returned a verdict in plaintiff's favor, assessing damages in the amount of $100,000 and apportioning fault at 65% to the school district and 35% to plaintiff.

    14

    On appeal, a divided Appellate Division, 75 A.D.2d 239, 429 N.Y.S.2d 467 affirmed the judgment rendered in plaintiff's favor, one Justice concurring in result and two Justices dissenting. The majority held that there was no error of law which warranted disturbing the jury's verdict. The dissenters were of the view that, as a matter of law, there was no showing of any negligence on the school district's part. According to the dissent, "adequately screened the area of its ball park behind home plate, the defendant fulfilled its duty to the plaintiff and cannot be held in negligence when she herself selected a position that was outside the area screened." (75 A.D.2d, p. 243, 429 N.Y.S.2d 467.) We agree.

    15

    Cases involving the liability of an owner of a baseball field for the injuries sustained by those attending its games are not altogether foreign to the courts of this State. Indeed, the doctrine of assumption of risk has had extensive application in a number of cases involving spectators struck by misguided baseballs. (E. g., O'Bryan v. O'Connor, 59 A.D.2d 219, 399 N.Y.S.2d 272; Dillard v. Little League Baseball, 55 A.D.2d 477, 390 N.Y.S.2d 735; Kozera v. Town of Hamburg, 40 A.D.2d 934, 337 N.Y.S.2d 761; Barker v. Topping, 15 A.D.2d 193, 222 N.Y.S.2d 658; Zeitz v. Cooperstown Baseball Centennial, 31 Misc.2d 142, 29 N.Y.S.2d 56; cf. Cadieux v. Board of Educ., 25 A.D.2d 579, 266 N.Y.S.2d 895; Ingersoll v. Onondaga Hockey Club, 245 App.Div. 137, 281 N.Y.S. 505.) As was aptly summarized by Chief Judge Cardozo, the spectator at a sporting event, no less than the participant, "accepts the dangers that inhere in it so far as they are obvious and necessary, just as a fencer accepts the risk of a thrust by his antagonist or a spectator at a ball game the [441 N.Y.S.2d 646] chance of contact with the ball * * * The timorous may stay at home." (Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 482-483, 166 N.E. 173.) However, because these cases arose prior to the adoption of the comparative negligence rule in this State (CPLR 1411), application of the assumption of risk doctrine served as a complete bar to a plaintiff's cause of action without regard to the degree of care exercised by the owner of the ball park. As a result, aside from two lower court decisions (Adonnino v. Village of Mount Morris, 171 Misc. 383, 12 N.Y.S.2d 658; Blackhall v. Capital Dist. Baseball Ass'n, 154 Misc. 640, 278 N.Y.S. 649, affd 157 Misc. 801, 285 N.Y.S. 695), there is no case law in this State which defines the duty of care owed by a proprietor of a baseball field to its spectators. We now define that duty.

    16

    At the outset, it should be stated that an owner of a baseball field is not an insurer of the safety of its spectators. Rather, like any other owner or occupier of land, it is only under a duty to exercise "reasonable care under the circumstances" to prevent injury to those who come to watch the games played on its field. (Basso v. Miller, 40 N.Y.2d 233, 386 N.Y.S.2d 564, 352 N.E.2d 868; Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794.) The perils of the game of baseball, however, are not so imminent that due care on the part of the owner requires that the entire playing field be screened. Indeed, many spectators prefer to sit where their view of the game is unobstructed by fences or protective netting and the proprietor of a ball park has a legitimate interest in catering to these desires. Thus, the critical question becomes what amount of screening must be provided by an owner of a baseball field before it will be found to have discharged its duty of care to its spectators.

    17

    Other jurisdictions addressing this question have adopted various standards in defining the duty of a ball park proprietor to protect its spectators from stray balls. Some courts have held that an owner merely has a duty to screen such seats as are adequate to provide its spectators with an opportunity to sit in a protected area if they so desire. (E. g., Crane v. Kansas City Baseball & Exhibition Co., 168 Mo.App. 301, 153 S.W. 1076; McNiel v. Fort Worth Baseball Club, 268 S.W.2d 244 Other courts have stated that a proprietor of a baseball field need only screen as many seats as may reasonably be expected to be applied for on an ordinary occasion by those desiring such protection. (Quinn v. Recreation Park Ass'n, 3 Cal.2d 725, 46 P.2d 144; Leek v. Tacoma Baseball Club, 38 Wash.2d 362, 229 P.2d 329.) Most courts, however, have adopted a two-prong standard in defining the scope of an owner's duty to provide protective screening for its patrons. Under the majority rule, the owner must screen the most dangerous section of the field--the area behind home plate--and the screening that is provided must be sufficient for those spectators who may be reasonably anticipated to desire protected seats on an ordinary occasion. (E. g., Maytnier v. Rush, 80 Ill.App.2d 336, 225 N.E.2d 83; Brisson v. Minneapolis Baseball & Athletic Ass'n, 185 Minn. 507, 240 N.W. 903; Erickson v. Lexington Baseball Club, 233 N.C. 627, 65 S.E.2d 140; see, generally, Liability to Spectator at Baseball Game Who Is Hit by Ball or Injured As Result of Other Hazards of Game, Ann., 91 A.L.R.3d 24.) We believe this to be the better rule and adopt this definition of the duty owed by an owner of a baseball field to provide protective screening for its spectators.

    18

    We hold that, in the exercise of reasonable care, the proprietor of a ball park need only provide screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest. Moreover, such screening must be of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game. In so holding, we merely recognize the practical realities of this sporting event. As mentioned earlier, many spectators attending such exhibitions desire to watch the contest taking place on the playing field without having their view obstructed or obscured by a [441 N.Y.S.2d 647] fence or a protective net. In ministering to these desires, while at the same time providing adequate protection in the most dangerous area of the field for those spectators who wish to avail themselves of it, a proprietor fulfills its duty of reasonable care under such circumstances.

    19

    This is not to say that, by adequately screening the area of the field where the incidence of foul balls is the greatest, the risks inherent in viewing the game are completely eliminated. Rather, even after the exercise of reasonable care, some risk of being struck by a ball will continue to exist. Moreover, contrary to the supposition of the dissent, we do not attempt to prescribe precisely what, as a matter of law, are the required dimensions of a baseball field backstop. Nor do we suggest that where the adequacy of the screening in terms of protecting the area behind home plate properly is put in issue, the case should not be submitted to the jury. We merely hold that where a proprietor of a ball park furnishes screening for the area of the field behind home plate where the danger of being struck by a ball is the greatest and that screening is of sufficient extent to provide adequate protection for as many spectators as may reasonably be expected to desire such seating in the course of an ordinary game, the proprietor fulfills the duty of care imposed by law and, therefore, cannot be liable in negligence. Indeed, to adopt the view urged by the dissent would mean that every spectator injured by a foul ball, no matter where he is seated or standing in the ball park, would have an absolute right to go to the jury on every claim of negligence, regardless of the owner's efforts to provide reasonable protection and despite the spectator's failure to utilize the protection made available.[*]

    20

    In this case, it is undisputed that the school district equipped its field with a backstop which was 24 feet high and 50 feet wide. Plaintiff presented no evidence that this backstop was inadequate in terms of providing protection for the area behind home plate where there was a substantial likelihood of spectators being struck by misguided balls or that there was an insufficient number of screened seats for those who might reasonably be expected to desire such protection. Under these circumstances, having provided adequate protection for those spectators seated, or standing, in the area behind home plate, liability may not be imposed on the school district for failing to provide additional screening along the baselines of its field where the risk of being struck by a stray ball was considerably less. (Accord Cates v. Cincinnati Exhibition Co., 215 N.C. 64, 1 S.E.2d 131; Curtis v. Portland Baseball Club, 130 Or. 93, 279 P. 277; see, also, Leek v. Tacoma Baseball Club, 38 Wash.2d 262, 229 P.2d 329, supra.)

    21

    As the dissent correctly notes, what constitutes reasonable care under the circumstances ordinarily is a question for the jury. This is not to say, however, that in every case involving a landowner's liability in negligence the question whether reasonable care was exercised must be determined by the jury. As we have only recently stated, "before it becomes appropriate for the jury to consider * * * such questions, the court, as it would in the usual negligence action, must make the threshold determination as to whether the plaintiff, by introducing adequate evidence on each element, has made out a case sufficient in law to support a favorable jury verdict. Only in those cases where there arises a real question as to the landowner's negligence should the jury be permitted to proceed. In all others, where proof of any essential element falls short, the case should go no further." (Basso v. Miller, 40 N.Y.2d 233, 241-242, 386 N.Y.S.2d 564, 352 N.E.2d 868, supra; see, also, Quinlan v. Cecchini, 41 N.Y.2d 686, 689, 394 N.Y.S.2d 872, 363 N.E.2d 578.)[441 N.Y.S.2d 648] In short, a court always is required to undertake an initial evaluation of the evidence to determine whether the plaintiff has established the elements necessary to a cause of action in negligence, to wit: (1) the existence of a duty on defendant's part as to plaintiff; (2) a breach of this duty; and (3) injury to the plaintiff as a result thereof. (See Prosser, Torts § 30, p. 143.) In this regard, this court, on more than one occasion, has held that a defendant fulfilled its duty of care notwithstanding a jury verdict to the contrary. (E. g., Pulka v. Edelman, 40 N.Y.2d 781, 390 N.Y.S.2d 393, 358 N.E.2d 1019; Jenks v. McGranaghan, 30 N.Y.2d 475, 334 N.Y.S.2d 641, 285 N.E.2d 876; Kimbar v. Estis, 1 N.Y.2d 399, 153 N.Y.S.2d 197, 135 N.E.2d 708; Thompson v. Board of Educ., 280 N.Y. 92, 19 N.E.2d 796; Peterson v. City of New York, 267 N.Y. 204, 196 N.E. 27; Maher v. Madison Sq. Garden Corp., 242 N.Y. 506, 152 N.E. 403; see, also, Curcio v. City of New York, 275 N.Y. 20, 9 N.E.2d 760.) Similarly, on the record before us and the undisputed facts of this case, the school district fulfilled its duty of reasonable care to plaintiff as a matter of law and, therefore, no question of negligence remained for the jury's consideration.

    22

    Finally, in view of our holding, we need not reach and, therefore, do not consider the correctness of the trial court's charge to the jury with respect to the applicability of the doctrine of assumption of risk under this State's comparative negligence statute. (See CPLR 1411.)

    23

    Accordingly, the order of the Appellate Division should be reversed, with costs, and the complaint dismissed.

    24

    COOKE, Chief Judge (dissenting).

    25

    The majority today engages in an unfortunate exercise in judicial rule making in an area that should be left to the jury. This attempt to precisely prescribe what steps the proprietor of a baseball field must take to fulfill its duty of reasonable care is unwarranted and unwise. Furthermore, the provision of CPLR 1411, providing that contributory negligence or assumption of the risk "shall not bar recovery", should not be disregarded. I therefore dissent and vote to affirm.

    26

    As the majority recognizes, the proprietor of a baseball field owes the same duty to spectators that any landowner owes to a person who comes onto the owner's property--"reasonable care under the circumstances" (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868; see, also, Scurti v. City of New York, 40 N.Y.2d 433, 387 N.Y.S.2d 55, 354 N.E.2d 794). This duty requires that the landowner "must act as a reasonable man in maintaining his property in a reasonably safe condition in view of all the circumstances, including the likelihood of injury to others, the seriousness of the injury, and the burden of avoiding the risk" (Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868, supra, quoting Smith v. Arbaugh's Rest., D.C.Cir., 469 F.2d 97, 100).

    27

    The majority errs, however, in deciding as a matter of law exactly what steps by a baseball field proprietor will constitute reasonable care under the circumstances. Such a determination, by its very dependence upon the "circumstances", hinges upon the facts of the individual situation and should be left for the jury. Indeed, those exceptions to this rule that have been made by courts occur only in those narrow classes of cases where an identical set of facts is likely to recur with regularity, and "holdings today are rare" (2 Harper and James, Torts, p. 977).

    28

    This court has made clear that "safety precautions may reasonably be required of a landowner is almost always a question of fact for the jury" (Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 520, n.8, 429 N.Y.S.2d 606, 407 N.E.2d 451; see, also, Scurti v. City of New York, 40 N.Y.2d 433, 445, 387 N.Y.S.2d 55, 354 N.E.2d 794, supra). Indeed, well before Basso extended the landowner's duty of reasonable care to all categories of persons who come onto the property, it was well established that "the municipality which extends to its citizens an invitation to enter and use recreational areas owes to those accepting that invitation [441 N.Y.S.2d 649] a duty of reasonable and ordinary care against foreseeable dangers. What degree of care is reasonable necessarily depends upon the attendant circumstances and is a jury question" (Caldwell v. Village of Is. Park, 304 N.Y. 268, 274, 107 N.E.2d 441; see, also, Sadowski v. Long Is. R. R. Co., 292 N.Y. 448, 455-456, 55 N.E.2d 497). This is not to say that every case of alleged negligence by the proprietor of a baseball field must go to the jury. But it is just as unreasonable to declare with such absolutism that, outside narrow and artificial limits, no such case can go to the jury.

    29

    The majority has in effect undertaken the task of prescribing the size, shape and location of backstops and other protective devices that will satisfy a baseball field owner's duty of reasonable care under the circumstances. This attempt to impose a straightjacket upon the relationship between a baseball field proprietor and spectators, regardless of the particular circumstances, is arbitrary and unrealistic. It is reminiscent of the Supreme Court's attempt, in the early years of the automobile, to impose upon the operator the duty of leaving the vehicle and examining each railroad grade crossing on foot, if necessary for a better view of the tracks (Baltimore & Ohio R. R. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 72 L.Ed. 167 This standard enjoyed little favor among State courts, engendered confusion among lower Federal courts attempting to apply it and was quickly repudiated by the Supreme Court (Pokora v. Wabash Ry. Co., 292 U.S. 98, 54 S.Ct. 580, 78 L.Ed. 1149).

    30

    In Pokora, Justice Cardozo noted that the problems springing from the grade-crossing rule emphasized "the need for caution in framing standards of behavior that amount to rules of law" (id., at p. 105, 54 S.Ct. at p. 583). Indeed, railroad crossing cases provide a good example of this court's reluctance to impose blanket rules of conduct divorced from actual events. More than a century ago, this court stated that "is a general rule that care commensurate with the danger must be exercised, and it is also a general rule that it is the province of the jury, and not of the court, to determine whether such care has been exercised" (Dolan v. Delaware & Hudson Canal Co., 71 N.Y. 285, 288; see, also, Beisiegel v. New York Cent. R. R. Co., 34 N.Y. 622, 625-626). The court has expressed this reluctance to take negligence questions from the jury in a variety of other contexts, as well (see, e. g., Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666; Loughran v. City of New York, 298 N.Y. 320, 322, 83 N.E.2d 136; Foltis, Inc. v. City of New York, 287 N.Y. 108, 122, 38 N.E.2d 455; Salomone v. Yellow Taxi Cab Corp., 242 N.Y. 251, 259, 151 N.E. 442; Sheridan v. Brooklyn & Newtown R. R. Co., 36 N.Y. 39, 43).

    31

    The wisdom of eschewing such blanket rules where negligence is concerned is obvious. In the present context, the majority has held as a matter of law that the proprietor of the baseball field fulfilled his duty of reasonable care by erecting a backstop that was 24 feet high and 50 feet wide. The court issues this rule with no more expertise available to it than Justice Holmes had in 1927 when he recommended that motorists venture on foot onto railroad grade crossings for a better view. It has selected one of a variety of forms of protection currently in use at professional ballparks and school playgrounds--what in reality is nothing more than a straight, high fence behind home plate--and has designated it as sufficient protection as a matter of law.

    32

    Such a ruling robs the jury of its ability to pass on whether the circumstances here might have made this type of backstop inadequate. In the present case, the majority has taken from the jury its ability to consider the following evidence: that the cost of placing "wings" on the backstop extending to first and third base would have been only $209 when the backstop was built; that other baseball diamonds do have such wings; that the type of game being played at the field was not a softball game between young tykes but rather a varsity high school hardball game involving players such as the batter in this incident, who was six-foot two-inches tall, weighed 190 pounds [441 N.Y.S.2d 650] and was advanced enough in ability to later play professional ball; that school authorities were aware that line drives "frequently" went over the low fence that ran along the base lines, and that there were no signs or other warnings of the dangers of standing behind this fence. Because of public familiarity with the "national pastime", no expert testimony would generally be required to make out a showing of failure to exercise due care in such a case (see Meiselman v. Crown Hgts. Hosp., 285 N.Y. 389, 396, 34 N.E.2d 367). In this case, however, the jury even had before it the testimony of a civil engineer as to the feasibility and minimal cost of ensuring greater safety for spectators. This makes an even stronger argument for sending this case to the jury.

    33

    The court's ruling will also foreclose juries in the future from considering the wide range of circumstances of individual cases, as well as new developments in safety devices or procedures. Unless the court plans to periodically take up such cases in the future to adjust its rule, it has frozen a position that is certain to become outdated, if it is not already. It would make as much sense for the court to decree, as a matter of law, what sort of batting helmet or catcher's mask a school district should supply to its baseball team. Baseball may be a sport steeped in tradition, but it is hardly immune from technological change and shifts in public perception of what constitute reasonable safety measures. It has traditionally been the jury that reflects these shifts and changes.

    34

    Finally, a few words concerning the doctrines of assumption of the risk and contributory negligence are in order. As the majority notes, in the past these doctrines generally provided the basis for denying recovery when a spectator who willingly stood or sat in an unprotected area was injured by a baseball. When the Legislature enacted comparative negligence (L.1975, ch. 69), it abolished those doctrines as total bars to a plaintiff's recovery. Now (and at the time of this incident), assumption of the risk and contributory negligence are denominated "culpable conduct" and serve only to proportionately diminish a plaintiff's recovery (CPLR 1411; see Memoranda of Judicial Conference, N.Y.Legis.Ann., 1975, pp. 23, 24). Yet the majority, although it speaks in terms of the defendant's duty of reasonable care, has effectively resurrected those doctrines as total bars to recovery. By holding as a matter of law that the defendant's duty of reasonable care extends only to the construction of a backstop of specific proportions, the majority forecloses a jury from considering any other factors that might be present in an individual case. This rule of law denies recovery to injured spectators as effectively as the old doctrines of assumption of the risk and contributory negligence ever did, and uses a fundamentally similar rationale to do so.

    35

    Accordingly, the order of the Appellate Division should be affirmed.

    36

    GABRIELLI, JONES and WACHTLER, JJ., concur with JASEN, J.

    37

    COOKE, C. J., dissents and votes to affirm in a separate opinion in which FUCHSBERG and MEYER, JJ., concur.

    38

    Order reversed, etc.

    39

    [*] The dissent acknowledges that not "every case of alleged negligence by the proprietor of a baseball field must go to the jury." (At p. 334, at p. 649 of 441 N.Y.S.2d, at p. 536 of 424 N.E.2d. However, no guidance whatsoever is offered for determining which cases should be decided by the court as a matter of law and which should be submitted to the jury.

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