restating the well-settled rule that “in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.”
How later courts described this case
- restating the well-settled rule that “in order to establish actionable negligence, one seeking recovery must show the existence of a duty, the breach of the duty, and injury resulting proximately therefrom.”
- noting that a trial court may direct a verdict if “reasonable minds could come to but one conclusion upon the evidence submitted,” but finding that reasonable minds could differ in the case before it
- recognizing that the issue of proximate cause contains factual determinations
- noting that proximate cause is hard to exactly define
Written by the judges who cited it.
The opinion
Holmes, J., dissenting.
I dissent from the majority herein for a number of rather basic reasons. First, I believe that Floyd Binder, the gasoline station employee, was privileged to fire gunshots at the fleeing robbers who were carrying away the money of his employer. He, as in the same instance of the employer he represented, had a real and basic interest in that which transpired upon the station premises. Here, such interests had been seriously invaded, and the right and privilege to guard and protect such interests must be legally recognized with certain limitations. The limitation is that such person may not act beyond a point where his act creates an unreasonable risk of causing harm to others, 1 Restatement of Torts (2d), Section 75.
Where such a privilege exists, as here, the actor is not held to the more restrictive standard generally applicable in the consideration of the existence of negligence in the acts of one who is not favored with the limited privilege to act under the circumstances.
Second, regardless of whether Binder would, under the facts presented, be privileged to fire shots at the fleeing robbers, the issues of foreseeability and proximate cause must be satisfactorily met. I am in disagreement with the majority here that it could be reasonably foreseeable by Binder that his firing shots at the fleeing robbers would occasion a head-on collision with another automobile one block down the street.
In reviewing the facts before the trial court upon the Civ. R. 50(A)(4) motion, the Court of Appeals stated as follows in its decision:
“For purposes of determining the merits of a motion for a directed verdict, the facts are clear and simple. However, the facts raise a question of first impression. We find that injury to Strother was not a probable consequence of Binder’s firing three shots at the occupants of the fleeing vehicle. The vehicle was still on the gas station lot. It was after 11:00 p.m. There was no evidence that there were any persons or vehicles in the vicinity of the getaway car when Binder fired. The risk of physical injury created by Binder’s actions were to the three robbers under the facts presented; Mr. Strother was outside the zone of risk as he was several blocks away from Noah’s Sunoco when the shooting occurred. It was not a probable con *290 sequence of Binder’s firing the shots on the station premises that Strother would be injured in a collision with an intended victim after that injured victim had left the scene of the shooting and was several hundred feet away.”
I am in complete agreement with this conclusion of the Court of Appeals, and would accordingly affirm the judgment of that court.
Sweeney and Locher, JJ., concur in the foregoing dissenting opinion.