Kleinknecht v. Gettysburg College

Suzanne W. Kleinknecht and Richard P. Kleinknecht (collectively "the Kleinknechts") appeal an order of the United States District Court for the Middle District of Pennsylvania granting summary judgment to appellee Gettysburg College ("the College"). The district court had subject matter jurisdiction under 28 U.S.C.A. § 1332(a)(1) (West Supp.1992)1. This Court has appellate jurisdiction under 28 U.S.C.A. § 1291 (West Supp.1992).2 We will reverse the district court's order granting summary judgment to the College for the following reasons.

Drew Kleinknecht died of cardiac arrest on September 16, 1988, while a student at the College and during a practice session of its intercollegiate lacrosse team. His parents filed this wrongful death and survival action against the College on August 15, 1990. The College filed an answer on September 11, 1990, and a motion for summary judgment on August 31, 1991. The district court initially denied the motion on November 1, 1991, but then granted the College's motion for reconsideration on January 9, 1992.

Following oral argument on January 30, 1992, the district court reversed its earlier decision and entered summary judgment in favor of the College on March 12, 1992. Kleinknecht v. Gettysburg College, 786 F.Supp. 449 (M.D.Pa.1992). In its opinion, the court first held that the College had no duty to anticipate and guard against the chance of a fatal arrhythmia in a young and healthy athlete. Id. at 454. The court also held that the actions taken by school employees following Drew's collapse were reasonable, and thus the College did not negligently breach any duty that might exist. Id. at 456.

In a footnote the court observed that because it had found that the College owed no special duty of care to Drew, it was not necessary to reach the question whether the immunity Pennsylvania's Good Samaritan law provides applied to any of the defendants. Id. at 457 n. 2. The court nevertheless stated that if the immunity law were applicable, Head Coach Henry L. Janczyk and Assistant Coach Donald Anderson would not be immune because neither of them held the required certification. Id. The court held, however, that student volunteer trainer Traci Moore would be shielded from liability, and that the College would also be immune because "the statutory context does not 'clearly indicate[ ]' ... that the word 'person' does not apply to corporations...." Id.

The Kleinknechts filed a timely appeal on March 25, 1992.

In September 1988, Drew Kleinknecht was a twenty-year old3 sophomore student at the College, which had recruited him for its Division III intercollegiate lacrosse team. The College is a private, four-year liberal arts school. In 1988, it had an enrollment of about two thousand students and supported twenty-one intercollegiate sports teams involving approximately 525 male and female athletes.

Lacrosse is a contact sport. In terms of sports-related injuries at the College, it ranked at least fourth behind football, basketball, and wrestling, respectively. Lacrosse players can typically suffer a variety of injuries, including unconsciousness, wooziness, concussions, being knocked to the ground, and having the wind knocked out of them. Before Drew died, however, no athlete at the College had experienced cardiac arrest while playing lacrosse or any other sport.

In September 1988, the College employed two full-time athletic trainers, Joseph Donolli and Gareth Biser. Both men were certified by the National Athletic Trainers Association, which requires, inter alia, current certification in both cardio-pulmonary resuscitation ("CPR") and standard first aid. In addition, twelve student trainers participated in the College's sports program. The trainers were stationed in the College's two training room facilities at Musselman Stadium and Plank Gymnasium.

Because lacrosse is a spring sport, daily practices were held during the spring semester in order to prepare for competition. Student trainers were assigned to cover both spring practices and games. Fall practice was held only for the players to learn "skills and drills," and to become acquainted with the other team members. No student trainers were assigned to the fall practices.

Drew participated in a fall lacrosse practice on the afternoon of September 16, 1988. Coaches Janczyk and Anderson attended and supervised this practice. It was held on the softball fields outside Musselman Stadium. No trainers or student trainers were present. Neither coach had certification in CPR. Neither coach had a radio on the practice field. The nearest telephone was inside the training room at Musselman Stadium, roughly 200-250 yards away. The shortest route to this telephone required scaling an eight-foot high cyclone fence surrounding the stadium. According to Coach Janczyk, he and Coach Anderson had never discussed how they would handle an emergency during fall lacrosse practice.

The September 16, 1988 practice began at about 3:15 p.m. with jogging and stretching, some drills, and finally a "six on six" drill in which the team split into two groups at opposite ends of the field. Drew was a defenseman and was participating in one of the drills when he suffered a cardiac arrest. According to a teammate observing from the sidelines, Drew simply stepped away from the play and dropped to the ground. Another teammate on the sidelines stated that no person or object struck Drew prior to his collapse.

After Drew fell, his teammates and Coach Janczyk ran to his side. Coach Janczyk and some of the players noticed that Drew was lying so that his head appeared to be in an awkward position. No one knew precisely what had happened at that time, and at least some of those present suspected a spinal injury. Team captain Daniel Polizzotti testified that he heard a continuous "funny" "gurgling" noise coming from Drew, and knew from what he observed that something "major" was wrong. Other teammates testified that Drew's skin began quickly to change colors. One team member testified that by the time the coaches had arrived, "[Drew] was really blue." Appendix (App.) at 1074.

According to the College, Coach Janczyk acted in accordance with the school's emergency plan by first assessing Drew's condition, then dispatching players to get a trainer and call for an ambulance. Brief for Appellee at 8. Coach Janczyk himself then began to run toward Musselman Stadium to summon help.

The Kleinknechts dispute the College's version of the facts. They note that although Coach Janczyk claims to have told two players to run to Apple Hall, a nearby dormitory, for help, Coach Anderson did not recall Coach Janczyk's sending anyone for help. Even if Coach Janczyk did send the two players to Apple Hall, the Kleinknechts maintain, his action was inappropriate because Apple Hall was not the location of the nearest telephone. It is undisputed that two other team members ran for help, but the Kleinknechts contend that the team members did this on their own accord, without instruction from either coach.

The parties do not dispute that Polizzotti, the team captain, ran toward the stadium, where he knew a training room was located and a student trainer could be found. In doing so, Polizzotti scaled a chain link fence that surrounded the stadium and ran across the field, encountering student trainer Traci Moore outside the door to the training room. He told her that a lacrosse player was down and needed help. She ran toward the football stadium's main gate, managed to squeeze through a gap between one side of the locked gate and the brick pillar forming its support, and continued on to the practice field by foot until flagging a ride from a passing car. In the meantime, Polizzotti continued into the training room where he told the student trainers there what had happened. One of them phoned Plank Gymnasium and told Head Trainer Donolli about the emergency.

Contemporaneously with Polizzotti's dash to the stadium, Dave Kerney, another team member, ran toward the stadium for assistance. Upon seeing that Polizzotti was going to beat him there, Kerney concluded that it was pointless for both of them to arrive at the same destination and changed his course toward the College Union Building. He told the student at the front desk of the emergency on the practice field. The student called his supervisor on duty in the building, and she immediately telephoned for an ambulance.

Student trainer Moore was first to reach Drew. She saw Drew's breathing was labored, and the color of his complexion changed as she watched. Because Drew was breathing, she did not attempt CPR or any other first aid technique, but only monitored his condition, observing no visible bruises or lacerations.

By this time, Coach Janczyk had entered the stadium training room and learned that Donolli had been notified and an ambulance called. Coach Janczyk returned to the practice field at the same time Donolli arrived in a golf cart. Donolli saw that Drew was not breathing, and turned him on his back to begin CPR with the help of a student band member who was certified as an emergency medical technician and had by chance arrived on the scene. The two of them performed CPR until two ambulances arrived at approximately 4:15 p.m. Drew was defibrillated and drugs were administered to strengthen his heart. He was placed in an ambulance and taken to the hospital, but despite repeated resuscitation efforts, Drew could not be revived. He was pronounced dead at 4:58 p.m.

As the district court observed, the parties vigorously dispute the amount of time that elapsed in connection with the events following Drew's collapse. The College maintains that "Coach Janczyk immediately ran to Drew's side, followed closely by assistant coach, Anderson." Brief for Appellee at 7. Team captain Polizzotti estimated that it took him no more than thirty seconds to get from the practice field to the training room. The College contends that it took Moore no more than two minutes to get from the training room to Drew's side. In fact, the College maintains, the lacrosse team was practicing on this particular field because of its close proximity to the training room and the student trainers. The College estimates that an ambulance was present within eight to ten minutes after Drew's collapse.

The Kleinknechts, on the other hand, assert that as much as a minute to a minute and a half passed before Coach Janczyk arrived at Drew's side. Brief for Appellants at 10. With the aid of an engineering firm, the Kleinknechts constructed a map for the district court showing the paths taken by Polizzotti and Kerney, including estimates of how long it took them to arrive at their respective destinations and relay their messages to those who could be of assistance. They estimate that it took Polizzotti a minute and a half to arrive at the stadium training room from the practice field, advise someone on duty, and have that person notify Donolli. The Kleinknechts also estimate that it took Kerney two minutes and thirteen seconds to arrive at the College Union Building, speak to the student at the desk, and then have the secretary telephone for an ambulance. They point to Donolli's deposition testimony indicating that it took him approximately three minutes and fifteen seconds to arrive at the scene. The Kleinknechts further maintain, and the College does not dispute, that at least five minutes elapsed from the time that Drew was first observed on the ground until Head Trainer Donolli began administering CPR. Thus, the Kleinknechts contend that evidence exists from which a jury could infer that as long as twelve minutes elapsed before CPR was administered. They also estimate that roughly ten more minutes passed before the first ambulance arrived on the scene.

Prior to his collapse on September 16, 1988, Drew had no medical history of heart problems. The Kleinknechts themselves describe him as "a healthy, physically active and vigorous young man" with no unusual medical history until his death. Brief for Appellants at 3-4. In January 1988, a College physician had examined Drew to determine his fitness to participate in sports and found him to be in excellent health. The Kleinknecht's family physician had also examined Drew in August 1987 and found him healthy and able to participate in physical activity.

Medical evidence indicated Drew died of cardiac arrest after a fatal attack of cardiac arrhythmia. Post-mortem examination could not detect the cause of Drew's fatal cardiac arrhythmia. An autopsy conducted the day after his death revealed no bruises or contusions on his body. This corroborated the statements by Drew's teammates that he was not in play when he suffered his cardiac arrest and dispelled the idea that contact with a ball or stick during the practice might have caused the arrhythmia. The National Institutes of Health examined Drew's heart as part of the autopsy but found no pathology. A later examination of the autopsy records by a different pathologist, and still further study by yet another physician after Drew's body was exhumed, also failed to reveal any heart abnormality which could have explained Drew's fatal heart attack.

The Kleinknechts present three general issues on appeal. They first argue that the district court erred in determining that the College had no legal duty to implement preventive measures assuring prompt assistance and treatment in the event one of its student athletes suffered cardiac arrest while engaged in school-supervised intercollegiate athletic activity. Second, the Kleinknechts maintain that the district court erred in determining that the actions of school employees following Drew's collapse were reasonable and that the College therefore did not breach any duty of care. Finally, the Kleinknechts urge that the district court erred in determining that both Traci Moore and the College were entitled to immunity under the Pennsylvania Good Samaritan Act.

The following analysis addresses each of these contentions in the order presented. This Court exercises plenary review over the district court's order granting the College's motion for summary judgment. Mellon Bank Corp. v. First Union Real Estate Equity and Mortgage Invs., 951 F.2d 1399, 1404 (3d Cir.1991).

A federal court exercising diversity jurisdiction must "apply the substantive law of the state whose laws govern the action." Robertson v. Allied Signal, Inc., 914 F.2d 360, 378 (3d Cir.1990) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). The parties agree that Pennsylvania law applies to the present dispute. "In cases where the state's highest court has not considered the precise question to be answered, the federal court is called upon to predict how the state court would resolve the issue should it be called upon to do so." Id. (citations omitted). Because the Supreme Court of Pennsylvania has not addressed the precise issues raised by the Kleinknechts, we must attempt to predict how that Court would rule in this case.

Whether a defendant owes a duty of care to a plaintiff is a question of law. See Restatement (Second) of Torts § 328(B) (1965) (court determines whether facts give rise to any legal duty on part of defendant); accord Leedy v. Hartnett, 510 F.Supp. 1125 (M.D.Pa.1981), aff'd, 676 F.2d 686 (3d Cir.1982); Morena v. South Hills Health Sys., 501 Pa. 634, 462 A.2d 680 (1983); see also Bradshaw v. Rawlings, 612 F.2d 135, 138 (3rd Cir.1979) (negligence claim must fail if based on circumstances for which law imposes no duty of care on defendant), cert. denied, 446 U.S. 909, 100 S.Ct. 1836, 64 L.Ed.2d 261 (1980); Boyce v. United States Steel Corp., 446 Pa. 226, 285 A.2d 459, 461 (1971) (no negligence claim can be based upon facts on which law does not impose duty upon defendant in favor of plaintiff). In order to prevail on a cause of action in negligence under Pennsylvania law, a plaintiff must establish: (1) a duty or obligation recognized by the law, requiring the actor to conform to a certain standard of conduct; (2) a failure to conform to the standard required; (3) a causal connection between the conduct and the resulting injury; and (4) actual loss or damage resulting to the interests of another. Morena, 462 A.2d at 684 n. 5 (citing Prosser, Law of Torts § 30, at 143 (4th ed. 1971)).

The Kleinknechts assert three4 different theories upon which they predicate the College's duty to establish preventive measures capable of providing treatment to student athletes in the event of a medical emergency such as Drew's cardiac arrest: (1) existence of a special relationship between the College and its student athletes; (2) foreseeability that a student athlete may suffer cardiac arrest while engaged in athletic activity; and (3) public policy.

a. Special Relationship

The Kleinknechts argue that the College had a duty of care to Drew by virtue of his status as a member of an intercollegiate athletic team. The Supreme Court of Pennsylvania has stated that "[d]uty, in any given situation, is predicated on the relationship existing between the parties at the relevant time...." Morena, 462 A.2d at 684. The Kleinknechts argue that although the Supreme Court has not addressed this precise issue, it would conclude that a college or university owes a duty to its intercollegiate athletes to provide preventive measures in the event of a medical emergency.

In support of their argument, the Kleinknechts cite the case of Hanson v. Kynast, No. CA-828 (Ohio Ct.App. June 3, 1985), rev'd on other grounds, 24 Ohio St.3d 171, 494 N.E.2d. 1091 (1986). In Hanson an intercollegiate, recruited lacrosse player was seriously injured while playing in a lacrosse game against another college. The plaintiff alleged that his university breached its legal duty to have an ambulance present during the lacrosse game. The trial court granted the defendant's motion for summary judgment based on its holding, inter alia, that

There is no duty as a matter of law for the Defendant College or other sponsor of athletic events to have ambulances, emergency vehicles, trained help or doctors present during the playing of a lacrosse game or other athletic events, and the failure to do so does not constitute negligence as a matter of law.

Id. at 10. The court of appeals reversed, concluding, "[I]t is a question of fact for the jury to determine whether or not appellee University acted reasonably in failing to have an ambulance present at the field or to provide quick access to the field in the event of an emergency." Id. at 6. By directing the trial court to submit the case to a jury, the court of appeals implicitly held that the university owed a duty of care to the plaintiff.

Although the Hanson court did not specify the theory on which it predicated this duty, we think it reached the correct result, and we predict that the Supreme Court of Pennsylvania would conclude that a similar a duty exists on the facts of this case. Like the lacrosse student in Hanson, Drew chose to attend Gettysburg College because he was persuaded it had a good lacrosse program, a sport in which he wanted to participate at the intercollegiate level. Head Trainer Donolli actively recruited Drew to play lacrosse at the College. At the time he was stricken, Drew was not engaged in his own private affairs as a student at Gettysburg College. Instead, he was participating in a scheduled athletic practice for an intercollegiate team sponsored by the College under the supervision of College employees. On these facts we believe that the Supreme Court of Pennsylvania would hold that a special relationship existed between the College and Drew that was sufficient to impose a duty of reasonable care on the College. Other states have similarly concluded that a duty exists based on such a relationship. See Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 553 (Ind.1987) (high school personnel have duty to exercise ordinary and reasonable care for safety of student athletes under their authority); Leahy v. Sch. Bd. of Hernando County, 450 So.2d 883, 885 (Fla.Dist.Ct.App.1984) (defendant school board owed duty to properly supervise spring football practice as approved school activity in which school employees had authority to control behavior of students); cf. Fox v. Board of Supervisors, 576 So.2d 978, 984-85 (La.1991) (Louisiana court had no specific personal jurisdiction over Minnesota college arising from its student's injury at rugby tournament in Louisiana where college did not (1) have rugby team in athletic department, (2) provide coach or advisor to rugby club, (3) supply club with athletic equipment or uniforms, or (4) arrange for club to participate in tournament); Benitez v. New York City Bd. of Educ., 73 N.Y.2d 650, 543 N.Y.S.2d 29, 541 N.E.2d 29, 32 (1989) (trial court erroneously instructed jury that defendant high school owed student athlete voluntarily competing in interscholastic football game same duty as prudent parent rather than lesser duty of reasonable care to protect student athletes in sports competitions from injuries arising from unassumed, concealed, or unreasonably increased risks).5

The Supreme Court of Pennsylvania has not specifically addressed the issue whether schools owe its athletes a duty based on that special relationship. The Supreme Court has, however, held that a university cannot be held liable for property damage incurred in a fire started by an intoxicated minor student of the university. In Alumni Association v. Sullivan, 524 Pa. 356, 572 A.2d 1209, 1211 (1990), the plaintiff alleged that the university knew or should have known that alcohol was being provided to minors in a dormitory and a fraternity house. Finding no evidence that either the fraternity or the university was involved in serving, supplying or purchasing the liquor, the Court declined to impose a duty based on a custodial relationship between the university and its students. Id. 572 A.2d at 1213.

In so holding, the Sullivan Court quoted from this Court's decision in Bradshaw v. Rawlings, on which the College relies in support of its position that it has no duty of care to its students. Bradshaw is clearly distinguishable, for the same reasons. There the plaintiff had attended a sophomore class picnic sponsored by his college. He left the picnic with another visibly intoxicated student who, while driving, was involved in an automobile accident that left the plaintiff with severe injuries. We held that the college owed no duty to the plaintiff in this situation based on a recognition that "the modern American college is not an insurer of the safety of its students." 612 F.2d at 138. We found neither the college's regulation imposing sanctions on its students for underage drinking nor its awareness in general of underage drinking by its students sufficient to impose a duty of custodial care on the college. Id. at 140-43; see University of Denver v. Whitlock, 744 P.2d 54, 61 (Colo.1987) (in banc) (university owed no duty to protect student from dangers of using trampoline located in front of fraternity house on campus).6

Here, unlike Sullivan and Bradshaw, Drew was not acting in his capacity as a private student when he collapsed. Indeed, the Kleinknechts concede that if he had been, they would have no recourse against the College. There is a distinction between a student injured while participating as an intercollegiate athlete in a sport for which he was recruited and a student injured at a college while pursuing his private interests, scholastic or otherwise. This distinction serves to limit the class of students to whom a college owes the duty of care that arises here. Had Drew been participating in a fraternity football game, for example, the College might not have owed him the same duty or perhaps any duty at all. There is, however, no need for us to reach or decide the duty question either in that context or in the context of whether a college would owe a duty towards students participating in intramural sports. On the other hand, the fact that Drew's cardiac arrest occurred during an athletic event involving an intercollegiate team of which he was a member does impose a duty of due care on a college that actively sought his participation in that sport. We cannot help but think that the College recruited Drew for its own benefit, probably thinking that his skill at lacrosse would bring favorable attention and so aid the College in attracting other students.

The case of Wissel v. Ohio High School Athletic Ass'n, 78 Ohio App.3d 529, 605 N.E.2d 458 (Ohio Ct.App.1992) is illustrative. There the appellant, a high school football player, was rendered a quadriplegic because of an allegedly defective football helmet. Id. 605 N.E.2d at 461. The trial court granted judgment to the appellee Athletic Association and two other defendants. Although the appellate court affirmed the order granting summary judgment, it did so because the appellant failed to " 'identify sins of commission rather than omission' " necessary to prevail under a theory of increased risk of harm, id. at 465 (quoting Patentas v. United States, 687 F.2d 707, 716 (3d Cir.1982)), not because of a lack of duty of care owed by the appellees to the student athlete:

[A]ll three appellees specifically disclaimed owing young Wissel any direct duty of reasonable care. We find it odd and disconcerting that organizations such as the appellees, which undertake to enhance the quality and safety of high school football games, disclaim that they do so to provide a service to the athletes who participate in the games. Moreover, we find similarly incongruous the argument that organizations whose rules govern the contest and whose discussions determine the type of athletic equipment that the athletes are provided do not owe those athletes a duty of reasonable care in their activities. The fact that these organizations purport to act gratuitously and for noble purposes does not, ipso facto, absolve them of a legal duty of care toward the athletes.

Id.

In conclusion, we predict that the Supreme Court of Pennsylvania would hold that the College owed Drew a duty of care in his capacity as an intercollegiate athlete engaged in school-sponsored intercollegiate athletic activity for which he had been recruited.

b. Foreseeability

This does not end our inquiry, however. The determination that the College owes a duty of care to its intercollegiate athletes could merely define the class of persons to whom the duty extends, without determining the nature of the duty or demands it makes on the College. Because it is foreseeable that student athletes may sustain severe and even life-threatening injuries while engaged in athletic activity, the Kleinknechts argue that the College's duty of care required it to be ready to respond swiftly and adequately to a medical emergency. See Blake v. Fried, 173 Pa.Super. 27, 95 A.2d 360, 364 (1953) (requiring risk "reasonably to be perceived" in order to impose duty).

Foreseeability is a legal requirement before recovery can be had. See Griggs v. BIC Corp., 981 F.2d 1429, 1435 (3d Cir.1992) (foreseeability is integral part of determination that duty exists under Pennsylvania negligence law) (citing Carson v. City of Philadelphia, 133 Pa.Cmwlth. 74, 574 A.2d 1184, 1187 (1990)). " 'The test of negligence is whether the wrongdoer could have anticipated and foreseen the likelihood of harm to the injured person, resulting from his act.' " Id. (quoting Dahlstrom v. Shrum, 368 Pa. 423, 84 A.2d 289, 290-91 (1951)).

The type of foreseeability that determines a duty of care, as opposed to proximate cause, is not dependent on the foreseeability of a specific event. See, e.g., Moran v. Valley Forge Drive-in Theater, Inc., 431 Pa. 432, 246 A.2d 875, 878 (1968) (upholding verdict for plaintiff who lost hearing when firecrackers exploded in restroom of defendant's movie theater). Instead, in the context of duty, "[t]he concept of foreseeability means the likelihood of the occurrence of a general type of risk rather than the likelihood of the occurrence of the precise chain of events leading to the injury." Suchomajcz v. Hummel Chem. Co., 524 F.2d 19, 28 n. 8 (3d Cir.1975) (citing Harper & James, The Law of Torts § 18.2, at 1026, § 20.5, at 1147-49 (1956)); see Griggs, 981 F.2d at 1435 (" 'The risk reasonably to be perceived defines the duty to be obeyed[.]' ") (quoting Dahlstrom, 84 A.2d at 290-91). Only when even the general likelihood of some broadly definable class of events, of which the particular event that caused the plaintiff's injury is a subclass, is unforeseeable can a court hold as a matter of law that the defendant did not have a duty to the plaintiff to guard against that broad general class of risks within which the particular harm the plaintiff suffered befell. Alumni Ass'n v. Sullivan, 369 Pa.Super. 596, 535 A.2d 1095, 1098 (1987) (citing Migyanko v. Thistlethwaite, 275 Pa.Super. 500, 419 A.2d 12, 14 (1980) and Palsgraf v. Long Island R.R., 248 N.Y. 339, 162 N.E. 99, 100 (1928)), aff'd, 524 Pa. 356, 572 A.2d 1209 (Pa.1990).

Even this determination that the harm suffered was foreseeable fails to end our analysis. If a duty is to be imposed, the foreseeable risk of harm must be unreasonable. Griggs, 981 F.2d at 1435. The classic risk-utility analysis used to determine whether a risk is unreasonable "balances 'the risk, in light of the social value of the interest threatened, and the probability and extent of the harm, against the value of the interest which the actor is seeking to protect, and the expedience of the course pursued.' " Id. at 1435-36 (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 31, at 173 (5th ed. 1984) (footnotes omitted)).

No person can be expected to guard against harm from events which are not reasonably to be anticipated at all, or are so unlikely to occur that the risk, although recognizable, would commonly be disregarded.... On the other hand, if the risk is an appreciable one, and the possible consequences are serious, the question is not one of mathematical probability alone.... As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution.

Id. (quoting Prosser and Keeton, supra § 31, at 170-71 (footnotes omitted)).

Although t