dissenting.
I respectfully dissent.
Under the guise of avoiding “unreasonably circumscribing” the function of the jury, the principal opinion abdicates the judicial function of deciding as a matter of law whether the case should have been submitted to the jury. Both the trial court and the court of appeals properly exercised this judicial function when they decided that this case should not have been submitted to the jury.
It is axiomatic that a party must plead and then prove each element of the cause of action by a preponderance of the evidence. Traditional negligence law requires that a party must establish a “(1) legal duty on the part of the defendant to conform to a certain standard of conduct to protect others against unreasonable risks; (2) a breach of that duty; (3) a proximate cause between the conduct and the resulting injury; and (4) actual damages to the claimant’s person or property.” Hoover’s Dairy, Inc. v. Mid-America Dairyman, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985). There is a general duty upon landowners to make common areas within the premises reasonably safe.1 See generally J. Page, The Law of Premises Liability, § 9.24 at 217 (1976 and Cum.Supp.1985-86); Annot., Landlord’s Liability for Injury or Death Due to Defects in Outside Walks, Drives, or Grounds Used in Common By Tenants, 68 A.L.R.3d 382 (1976). See e.g., Barker v. East Side Bldg., 344 S.W.2d 299 (Mo.App.1960); Hieken v. Eichhorn, 159 S.W.2d 715 (Mo.App.1942).
The principal opinion focuses on but one of the elements, causation, and holds that it is sufficient that the jury could have believed or found that installation of a speed bump could have “greatly reduced the chances of an accident.” This conclusion is said to be supported by the testimony of an expert witness, whose testimony, to say the least, is dubious and without an adequate foundation in the record.2 There is no burden on the defendant to refute or to present contrary evidence. Under such circumstances, the trial court judge who has listened to the evidence and witnesses is under a duty to determine whether, as a matter of law, the case should be submitted to the jury.
The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.
W. Prosser & P. Keeton, Prosser and Kee-ton on Torts, 269 (1984). The court here *673directed a verdict, and this Court should not, on the meager evidence presented at trial, substitute its judgment for that of the trial court and reinstate the verdict.
Causation is not the central question in this case; rather, the inquiry should focus on the scope of respondents’ duty to this particular plaintiff. “If the other issues are not clearly formulated there is a great danger that they will become confused with the cause issue and convert it in a twinkling into some other issue underlying responsibility.” Green, The Causal Relation Issue In Negligence Law, 60 Mich.L.Rev. 543, 546 (1962). The concept of causation has evoked considerable controversy among the scholars during the last sixty years.3 The necessary “causal” connection is usually referred to as proximate cause, a term of art, according to Prosser and Kee-ton, upon which “nothing in the entire field of law ... has called forth more disagreement, or upon which the opinions are in such a welter of confusion.” W. Prosser & P. Keeton, supra, § 41, at 263. Another observor has suggested that “the phrases of proximate cause are little more than gaudy ribbons with which the package of liability may be decorated once its contents have already been fixed by the court through resort to some other mystique.” Malone, Ruminations on Dixie Drive It Yourself Versus American Beverage Company, 30 La.L.Rev. 363, 364 (1970).
Today, proximate cause theory is separated into two components: a necessary factual connection and a boundary based upon justice or policy within which liability can be imposed. W. Prosser & P. Keeton, supra, § 41 at 264. In a pathbreaking analysis, however, Wex Malone illustrated the difficulty with trying to draw a fine line between factual and legal components of “causation.” Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. 60 (1956). But cf. Wright, Causation in Tort Law, 73 Calif.L.Rev. 1735, 1803 (1985). As a philosophical matter, “the consequences of an act go forward to eternity, and the causes of an event go back to the dawn of human events, and beyond.” W. Prosser & P. Keeton, supra, § 41 at 264. Yet, no one would seriously contend that Orville Wright “caused” all modern day aviation disasters. By the same token, no one would suggest that the person who taught Shawn Amsden how to ride a bicycle “caused” the accident even though it was a necessary antecedent.
In an effort to develop meaningful standards by which to measure causation, *674courts and commentators established certain tests, such as the “but for” and “sub.stantial factor” tests. There is disagreement, however, over whether such tests should be considered as tests for “legal” or “factual” causation. Prosser & Keeton treat such standards as tests for “factual” causation. W. Prosser & P. Keeton, supra, § 41. The Restatement (Second) of Torts § 432 apparently treats such tests under the rubric of “legal” cause. These tests are referred to as hypothetical counter-factual questions designed to determine what would have occurred without the alleged negligent conduct. The “but for” test, for example, provides that the conduct of the defendant caused the event if the event would not have occurred but for the defendant’s conduct. The “substantial factor” test is merely the adoption of the “but for” test when there are multiple sufficient causes of an event:
If two forces are actively operating, one because of the actor’s negligence, the other not because of any misconduct on his part, and each of itself is sufficient to bring about harm to another, the actor’s negligence may be found to be a substantial factor in bringing it about.
Restatement (Second) of Torts § 482(2). Although these tests might be appropriate in many cases, they are woefully inadequate in the hard cases. Aside from the philisophical question of whether “act” and “omission” overlap, these tests cannot explain the situation where there is an affirmative act by a third party and a failure to act (nonfeasance) by another, such as in the case at bar. The Restatement attempts to resolve such cases by suggesting that “if the same harm, both in character and extent, would have been sustained even had the actor taken the required precautions, his failure to do so is not even a perceptible factor in bringing it about and cannot be a substantial factor in producing it.” Restatement (Second) of Torts § 432 Comment b. This tells us very little and is simply a test of exclusion.4
For decades, many of the leading scholars in this area have urged courts to abandon this “orthodox” view of causation, at least in hard cases, and shift the focus of the inquiry to the scope of the defendant’s duty. The question of causation should be limited to determining whether the conduct at issue contributed to the injury. The courts should decide whether the cause is one for which liability should be imposed. Green, The Causal Relation Issue in Negligence Law, 60 Mich.L.Rev. 543 (1962); Malone, Ruminations on Cause-In-Fact, 9 Stan. L.Rev. 60 (1956); Comment, When Cause-In-Fact Is More Than A Fact, 44 La.L.Rev. 1519 (1984). Foreseeability alone is not sufficient; foreseeability makes the conduct negligent, but other factors and policy judgments determine the scope of the duty.
In the case at bar, I do not believe that the scope of respondents’ duty extended to the placement of speed bumps on its property. The only evidence at trial indicating that speed bumps should have been placed in the parking lot came from appellant’s expert witness, who indicated that speed bumps might prevent bicyclists from traveling too fast in the parking lot. It might be said that a wall, fence, sign or security patrol might have had the same effect. Yet, no one suggests that respondents should have built a wall around the parking lot. The precise question, rather, is whether respondents’ owed appellant or someone similarly situated the specific duty alleged in appellant’s pleading — that is, placing a speed bump on the property — in order to *675prevent the accident herein from occurring.5
The principal opinion suggests that this is a question for the jury, and that the jury could have believed the one expert’s6 opinion that speed bumps might be appropriate to control bicycle traffic. It then opines “i[t] would be contrary to the course of the law for us to substitute our judgment for that of the jury.” I believe that such a view unwisely delegates too much discretion to the jury and overlooks one of the most fundamental principles of tort law— that is, that the question of duty is ultimately one of policy for the courts.
The hazards to which any interest is subjected are so numerous, and the reach of any rule which the plaintiff may invoke in its vindication is so poorly defined, and there are so few external guides to tell a court whether a particular hazard is within the range of the rule invoked, that the problem may well prove bewildering. Nevertheless, the court must determine it in every case, consciously or otherwise. The judicial power cannot function in any other way. It is a problem solely for the judge and the jury has no party to play in its determination.
L. Green, Rationale of Proximate Cause 12 (1927). In short, this is a legal question and an appropriate matter for the trial court to decide either through a directed verdict or a j.n.o.v. See L. Green, Judge and Jury (1930); Thode, Tort Analysis: Duty-Risk v. Proximate Cause and the Relational Allocation of Functions Between Judge and Jury, 1977 Utah U.L.Rev. 1. At the close of appellant’s case, respondent moved for a directed verdict, and the trial court indicated that it was a close case but that he would let the case go to the jury anyway and would reconsider the matter in a j.n.o.v. After the verdict, the court granted the j.n.o.v.
This action by the trial court was appropriate. Common sense suggests that the scope of respondents’ duty does not extend to the placement of speed bumps on its property.7 While it may be that speed *676bumps are a generally accepted safe method for slowing fast-moving noisy traffic in subdivisions, I have grave doubts about speed bumps being an appropriate device for slowing bicycles cutting across property. Under a tort theory as suggested by the principal opinion, couldn’t a jury find that a speeding bicyclist injured after striking such an obstruction is just as much entitled to recovery against the landowner as this appellant?
The appellant failed to establish her case by a preponderance of the evidence and the trial court’s granting of the j.n.o.v. should be affirmed.
. When acknowledging this general duty, the principal opinion suggests that the duty is “strongly emphasized in recent cases.” Such a suggestion only serves as a mode of “considerate communication” by using a subtle twist on language. See Weisberg, How Judges Speak: Some Lessons On Adjudication In Billy Budd, Sailor With an Application to Justice Rehnquist, 57 N.Y.U.L.Rev. 1 (1982).
. The expert’s testimony is based upon hypothetical facts that have little support in the record. The witness to the accident testified that the child traveled "several” feet after the collision and previously had told a hospital attendant that the child flew ten feet. The expert, however, based his calculation on the assumption that the child traveled twenty feet. It is not enough to suggest that respondents should have questioned him about the effect on his opinion had the child not traveled twenty feet. Respondents vigorously objected to this testimony and the hypothetical was without an adequate foundation.
. See generally A. Becht & F. Miller, The Test of Factual Causation (1961); L. Green, Rationale of Proximate Cause (1927); H.L.A. Hart & T. Honoré, Causation in the Law (1959); R. Kee-ton, Legal Cause in the Law of Torts (1963); Beale, The Proximate Consequences of an Act, 33 Harv.L.Rev. 633 (1920); Carpenter, Concurrent Causation, 83 U.Pa.L.Rev. 941 (1935); Carpenter, Workable Rules for Determining Proximate Cause, 20 Calif.L.Rev. 229, 396, 471 (1932); Crowe, The Anatonomy of a Tort — Greenian, as Interpreted by Crowe, Who has Been Influenced by Malone — A Primer, 22 Loy L.Rev. 903 (1976); Grady, Proximate Cause and the Law of Negligence, 69 Iowa L.Rev. 363 (1984); Green, The Duty Problem in Negligence Cases, 28 Colum.L. Rev. 1014 (1928); Green, Duties, Risks, Causation Doctrines, 41 Tex.L.Rev. 42 (1962); Green, Are There Dependable Rules of Causation?, 77 U.Pa.L.Rev. 601 (1929); Henderson, A Defense of the Use of the Hypothetical Case to Resolve the Causation Issue — The Need for an Expanded, Rather than Contracted, Analysis, 47 Tex.L. Rev. 183 (1969); Landes & Posner, Causation in Tort Law: An Economic Approach, 12 J. Legal Stud. 109 (1983); Malone, Ruminations on Cause-in-Fact, 9 Stan.L.Rev. 60 (1956); Peaslee, Multiple Causation and Damage, 47 Harv.L.Rev. 1127 (1934); Phillips, Reflection on Factual Causation, 1978 Wash.U.L.Q. 661; Prosser, The Minnesota Court on Proximate Cause, 21 Minn. L.Rev. 19 (1936); Prosser, Proximate Cause in California, 38 Calif.L.Rev. 369 (1950); Rizzo, The Imputation Theory of Proximate Cause: An Economic Framework, 15 Ga.L.Rev. 1007 (1981); Rizzo & Arnold, Causal Apportionment in the Law of Torts: An Economic Theory, 80 Colum.L.Rev. 1399 (1980); Thode, Tort Analysis: Duty-Risk v. Proximate Cause and the Rational Allocation of Functions Between Judge and Jury, 1977 Utah L.Rev. 1; Thode, The Indefensible Use of the Hypothetical Case to determine Cause in Fact, 46 Tex.L.Rev. 423 (1968); Wright, Causation in Tort Law, 73 Calif.L.Rev. 1737 (1985); Zweir, "Cause in Fact” in Tort Law — A Philosophical and Historical Examination, 31 DePaul L.Rev. 769 (1982); Comment, When Cause-In-Fact is More Than A Fact: The Malone-Green Debate on the Role of Policy in Determining Factual Causation in Tort Law, 44 La.L.Rev. 1519 (1984).
. “Factual” causation also poses theoretical problems in cases based upon vicarious liability. In recent years, following the wake of Summers v. Tice, causation has heen a subject of litigation in alternative liability situations such as the DES cases. See e.g., Zaft v. Eli Lilly Co., 676 S.W.2d 241 (MO. banc 1984). See generally, Delgado, Beyond Sindell: Relaxation of Cause-in-Fact Rules for Intedeterminate Plaintiffs, 70 CaIif.L.Rev. 881 (1982); Kaye, The Limits of the Preponderance of the Evidence Standard: Justifiably Naked Statistical Evidence and Multiple Causation, 1982 A.B.A.Res.J. 487; Miller, Market Share Liability In Drug Cases, 41 J.Mo.Bar 359 (1985); Robinson, Multiple Causation in Tort Law: Reflections on the DES Cases, 68 Va.L.Rev. 713 (1982).
. The initial question in virtually all negligence cases is whether the defendant owes the plaintiff any duty. Here, there is a general duty to make the premises "reasonably safe.” The next question is whether the absence of speed bumps made the property "unreasonably safe” in light of the risk being sought to avoid — that is, a child being seriously hurt by a bicycle traveling in the parking lot. Answering this second question defines the scope of the respondents’ duty.
. The expert was apparently qualified as an accident reconstructionist, and there was no specific objection to the opinion on the need for speed bumps.
. The principal opinion suggests that this case is akin to the situation where a child drowns in a public swimming pool without a lifeguard on duty. In either case, causation plays only a minimal role because in both situations the jury could conclude that it is "more likely than not” that the omission (the alleged tortious conduct) contributed to the injury. It might be noted that the principal opinion alters this test by suggesting that the "more likely than not” standard need only increase the risk of the accident. This is an issue over which the tort system has yet to deal with adequately; and, while there is an emerging concept of comparative causation and valuation of risk (or chance), such as in the failure to diagnose medical malpractice cases, this concept has not yet received widespread recognition. See generally King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale LJ. 1353 (1981); Note, .Increased Risk of Harm: A New Standard for Sufficiency of Evidence of Causation in Medical Malpractice Cases, 65 B.UX.Rev. 275 (1985); Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepp.L.Rev. 973 (1985).
The crucial question, however, is whether in each situation the defendant’s duty encompasses the risk. Surely no one would disagree that lifeguards are necessary or important for protecting swimmers from drowning, but it is a wholly different matter to suggest that speed bumps are necessary or important for protecting against the risk that children might be seriously injured by bicyclists. This inquiry is not the same as whether the speed bump could be necessary to protect people from being hit by speeding cars, such as in the case of Clifton v. Brown, 253 Ark. 148, 484 S.W.2d 884 (1972). It may well be that speed bumps should be equally necessary to prevent accidents involving bicyclists, but the flaw in the case now before this Court is the lack of sufficient evidence establishing that speed bumps fall within the scope of the duty. There is no evidence of what is required under local ordinances, the standards for building permits and other such evidence concerning the use of speed bumps.