(dissenting).
My colleagues rationalize that failure to repair holes in a playground fence gave rise to a fact issue as to breach of the landlord’s well-recognized duty to maintain common areas in a reasonably safe condition, that this duty of ordinary care was owed to a child tenant as a matter of law, and that the linchpin of liability is whether an injury was caused as a natural and probable result of any such breach of that duty. The opinion specifically introduces foreseeability as an integral element of proximate causation, and, in that connection, uses the phrase “natural and probable result” in place of “natural and continuous sequence.” See SCRA 1986, 13-305 (proximate cause defined). Thus, the clear foreseeability of the child leaving the premises and eventually meeting his death on some street becomes the factual test of both breach of duty to maintain the common area1 and proximate causation. More precisely, I believe, this case turns on the presence or absence in law of a duty to the child to maintain the fence to avoid foreseeable risk of harm nearly one-fifth of a mile from the apartment complex.
As an aside, I must disagree with my colleagues that foreseeability is an integral element of proximate cause. Foreseeability is an element of proximate cause only when it may be said that an independent intervening act has produced that which was not foreseeable as a result of an earlier act or ommission. SCRA 1986, 13-305, 13-306. I do not see that issue in the instant case. Petitioner, on the other hand, would pose the issue as whether the breach of the landlord’s duty to maintain the fence was too remote as a matter of law to constitute a proximate cause of the child’s death on the frontage road. However, I do not consider remoteness to be a proximate cause issue either. See Kelly v. Montoya, 81 N.M. 591, 470 P.2d 563 (Ct.App.1970). Remoteness delimits the risk of injury that reasonably may give rise to the existence of duty. I concur with the court of appeals. The frontage road hazard was too remote as a matter of law to constitute a risk of injury reasonably giving rise to any duty to maintain the playground fence.
It may be unreasonable and, therefore, negligent not to avoid a foreseeable risk of harm unless the risk is remote as a matter of law. Remoteness, however, is not a fact. It is a policy. Failure to maintain a fence, foreseeability of a risk of harm, and proximate causation may give rise to genuine issues of fact; but those issues are not material to a determination of whether there exists in law a duty to avoid that which may be remote as a matter of public policy. Said another way, it is not unreasonable in law to fail to avoid that which is remote.
In general, the author of the majority opinion is correct in stating that, “In determining duty, it must be determined that the injured party was a foreseeable plaintiff — that he was within the zone of danger created by respondent’s actions; in other words, to whom was a duty owed?” This foreseeability issue is, indeed, the teaching of the majority opinion authored by Chief Justice Cardozo in Palsgraf No peril to Helen Palsgraf was foreseeable from the conduct of the railroad’s guard in pushing aboard the passenger from whom was dislodged an apparently innocuous but fateful package of fireworks. Helen Palsgraf was injured many feet away by scales thrown down by the shock of the exploding fireworks.
I agree with the majority in the instant case that whether a duty was owed must be decided as a matter of law using existing legal policy. The crux of the duty analysis that is required, however, is not a factual foreseeability determination, but rather it is a legal policy determination. This distinction is critical. In New Mexico, as stated in the majority opinion, we define negligence as an act foreseeably involving an unreasonable risk to that individual who complains of injury. See also, SCRA 1986, 13-1601. Foreseeability is most often a question of fact and only rarely, as in Palsgraf, may foreseeability be considered a false jury issue. More often, duty as a matter of law turns not on an absence of the fact issue of foreseeability, but rather the policy issue of whether it is reasonable to impose a duty to avoid a risk of injury which, although foreseeable, is remote. °
Declining to decide Palsgraf on the absence of foreseeability as a fact, Justice Andrews, dissenting, would have decided the case on proximate causation, which to him meant that, “because of convenience, of public policy, of a rough sense of justice, the law arbitrarily [decides whether] to trace a series of events beyond a certain point. This is not logic. It is practical politics.” Id. Except where foreseeability is factually absent, as in Palsgraf, I would utilize this policy concept in deciding duty as a matter of law, unfettered by proximate cause principles that have their own factual application. I would call this policy concept the doctrine of remoteness. Under the doctrine of remoteness, foreseeability is not controlling. Remoteness and foreseeability are separate and divergent roads by which we approach the question of duty.
In Ramirez v. Armstrong, 100 N.M. 538, 673 P.2d 822 (1983), observing that the interest to be protected was more important than foreseeability in the recognition of a cause of action for negligent infliction of emotional distress, this Court said of Palsgraf:
Duty and foreseeability have been closely integrated concepts in tort law since the court in Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928) stated the issue of foreseeability in terms of duty. If it is found that a plaintiff, and injury to that plaintiff, were foreseeable, then a duty is owed to that plaintiff by the defendant. Dean Prosser defines duty, in negligence cases, as “an obligation to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” W. Prosser, The Law of Torts § 53 (4th ed. 1971). He recognizes, however, that “there is nothing sacred about ‘duty,’ which is nothing more than a word, and a very indefinite one, with which we state our conclusion.” Id. § 43. The key to Dean Prosser’s definition is the requirement that the obligation of the defendant be one to which the law will give recognition and effect.
Id. at 541, 673 P.2d at 825. The grant or denial in law of recognition and effect to an obligation, as to bystanders subject to emotional distress, is a matter of public policy driven by the doctrine of remoteness. The doctrine is not necessarily dependent upon considerations of time and space; although, in the instant case, our policy determination involves those considerations. Nor is foreseeability controlling. It is in the denial of obligation as a matter of fact that foreseeability and proximate cause are controlling.
While purporting to acknowledge the possibility of a duty to maintain the playground fence to avoid foreseeable risk of harm to tenant children attracted to adjoining property, the court of appeals finds no duty when the attraction is too remote. Factually, the court of appeals notes, plaintiff does not dispute that the young boy had to traverse the following path to reach the spot where the accident occurred: First, he had to walk 94 feet to the arroyo, then proceed along the arroyo approximately 559 feet to reach a diversion channel. Upon reaching the diversion channel, the boy then had to travel 294 feet along the channel, at which point he was required to scale a ditch bank approximately 20 feet high, finally arriving at the shoulder of the frontage road where he was hit by a car.
As a matter of policy, it strikes me as it did the trial court and the court of appeals that it would be unreasonable to impose a duty on the part of the landlord to safeguard eight-year-old tenants from risks of injury on streets not immediately adjoining the property. There is no showing of any affirmative conduct of the landlord, relied upon by the tenants, that gives rise to a duty to restrain the child from exploring the wonders of a world one-fifth of a mile from the apartment complex. Again, this is not a case of a youngster chasing a ball from an unfenced playground onto the street, or of a youngster attracted through a hole in the fence to a nuisance existing on adjacent property. As a matter of public policy, absent an affirmative undertaking relied upon by the tenants, it simply is not reasonable to require a landlord to restrain a third or fourth grade boy from leaving his apartment complex.
. The majority opines, ”[I]t is yet to be determined whether respondent breached his duty and did not use due care in maintaining the common area. It may have been reasonable, under the circumstances, balancing the costs of maintaining the fence with the foreseeable harm, for the landlord not to have fixed the holes.”