with whom WAGNER, Chief Judge, and REID, Associate Judge, join in Parts I and III, dissenting:
I adhere to the views expressed in the division opinion that would have applied the last clear chance doctrine to this case and permitted recovery by the suicide’s family and estate against a reckless train operator who could have avoided causing Ms. Johnson’s death. See Washington Metro. Area Transit Auth. v. Johnson, 699 A.2d 404 (D.C.1997), vacated, 704 A.2d 306 (D.C.1998). That Ms. Johnson initiated the events that resulted in her death is not in dispute, but it is equally clear that, but for the train operator’s recklessness, her purpose would have been foiled. The operator’s failure to act as required by law was the immediate cause of this suicide’s death and his actions should be correspondingly assessed with liability for the death he occasioned.1 That result conforms with the admonitory and compensatory objectives of tort law.
I respectfully dissent from the majority for two principal reasons. First, the majority’s analysis, which focuses exclusively on the suicide’s conduct, undermines the policies which result in imposition of liability in those situations where the defendant has the last clear chance to avoid injury by exercising reasonable care. Second, the premise for the majority’s analysis, that Ms. Johnson, a suicide, acted with the requisite voluntariness and knowledge, is inconsistent with society’s condemnation of suicide and is not supported by the record sent to us by the Court of Appeals, which shows that Ms. Johnson had a history of serious mental illness requiring numerous hospitalizations.
I.
Under the majority’s analysis, the egregiousness of the defendant’s conduct, its importance in the chain of causation and the foreseeability of death if the defendant did not exercise reasonable care are made irrelevant. By focussing exclusively on Ms. Johnson’s conduct, and releasing WMATA and the train operator for any liability connected to her “invited” death, the majority overlooks the significance of the fact that the reckless act of the train operator in this case — the failure, due to his intoxicated condition, to stop the train when he became aware of Ms. Johnson’s peril — occurred subsequent to Ms. Johnson’s act of jumping onto the train tracks, and was the immediate cause of her death.
In the majority’s view, once the voluntariness and intentionality of the plaintiffs action is established, plaintiffs consent to death relieves defendant of liability for all subsequent tortious conduct or, as in this case, even reckless behavior which causes injury or death. The majority’s conclusion not only exceeds the traditional scope of the risk deemed to be assumed under assumption of risk doctrine, but also goes against the public policy exception for express agreements to assume risk. Under traditional primary assumption of risk analysis, while a plaintiffs voluntary action in encountering a known risk may relieve the defendant of certain obvious risks which the plaintiff can be said *179to have assumed, a defendant is not excused from liability for failure to act with due care in dealing with those obvious risks nor for subsequent acts of negligent or reckless conduct. See Fleming James Jr., Assumption of Risk, 61 Yale L.J. 141, 161 (1952) (citing cases). Moreover, there are certain risks so inimical to the public interest that society does not honor private agreements to assume them. See Restatement (Second) of Torts § 496B cmt. g (“Where the defendant is a common carrier ... or is otherwise charged with a duty of public service, and [there is an] agreement to assume some risk relating] to the defendant’s performance of any part of that duty, it is well settled that it will not be given effect.”).
Beyond these limitations on the assumption of risk doctrine, traditional tort analysis also leads to the conclusion that if the defendant’s negligence supersedes the plaintiffs own intentional conduct and is the proximate cause of plaintiffs injury, the defendant is liable. See Rinaldo v. N.Y. City Transit Auth., 39 N.Y.2d 285, 383 N.Y.S.2d 571, 573, 347 N.E.2d 897, 898 (1976) (applying doctrine of last clear chance to suicide attempt); Wyckoff v. Davis, 297 S.W.2d 490, 494 (Mo.1957) (in case applying humanitarian doctrine — equivalent to last clear chance doctrine — “it is of no consequence ivhat brings about or continues the peril, even though it be sheer hardihood or recklessness. This covers the whole range of self-exposure to peril from mere negligent inattention to utter, audacious and continuing disregard of known and avoidable danger.”) (quoting State v. Bland, 354 Mo. 868, 191 S.W.2d 660, 662 (1945) (suggesting that humanitarian doctrine extends to suicides)); Brooks v. New Albany & L. Elec. R. Corp., 280 Ky. 157, 132 S.W.2d 777, 780 (1939) (“The test is, without regard as to how she came in peril, Did the defendant’s motorman in charge of the street car see, or could he by due care, have seen her peril and negligently fail to avoid injuring her? If so, the defendant is liable.”) (quoting Mullins v. Cincinnati N. & C. Ry. Co., 253 Ky. 156, 68 S.W.2d 790, 792 (1934)). In the few remaining jurisdictions, such as ours, where a plaintiffs contributory negligence precludes recovery against a defendant whose negligence also contributes to the injury, the last clear chance doctrine operates to restore some equity by recognizing the defendant’s greater fault as the direct cause of injury, tempering the harshness of contributory negligence. See Washington Metro. Area Transit Auth. v. Johnson, supra, 699 A.2d at 407-08.
The majority excepts suicide from application of the last clear chance doctrine reasoning that by her intentional suicidal act, Ms. Johnson “invited” the particular injury that killed her, citing the “ancient maxim, ‘Volenti non fit injuria,’ which signifies that no wrong is done to one who consents.” Restatement (Second) of Torts § 496A cmt. b. The theory of primary assumption of the risk, equated to volenti non fit injuria,2 on which the majority relies,
reflects the individualism of the common law in relationships wherein it was felt that the duty of self-protection against many hazards rested primarily on each participant.
It is a negation of duty by one to look out affirmatively for the other’s safety. It is clear then that the concept of assumption of risk in the primary sense is not to be considered in a situation where defendant has breached a duty towards plaintiff— where the latter has “a statutory right to protection, or a common law right or ... individual right at law to find these particular premises ... free from danger....” This means specifically that even when a danger is fully known or comprehended plaintiff is not barred from recovery simply because he chooses deliberately to encounter it....
James, supra, 61 Yale L.J. at 144 (noting that when there is such a right, the plaintiff may be contributorily negligent if the choice is negligent, but is not deemed to have voluntarily released the defendant of duty to the plaintiff) (internal footnote omitted).
*180Here, the train operator was under a statutory duty not to operate the train in an intoxicated condition. See D.C.Code § 25-127 (1996). In such a situation, assumption of the risk may not relieve a defendant of liability because “[statutes and regulations should not be overborne by the common law.” Martin v. George Hyman Constr. Co., 395 A.2d 63, 69 (D.C.1978); see Restatement (Second) of Torts §§ 483, 496F; William L. Prosser, Handbook of the Law of Torts 425-26, 453-54 (4th ed.1971). The majority relies, however, on the proposition that “willful, wanton or reckless disregard for [her] own safety” bars a plaintiffs recovery against even a defendant who has breached a statutory duty, citing Martin, supra, 395 A.2d at 74. Martin, however, does not consider the last clear chance doctrine. That is because in Martin there was no negligence or recklessness on the part of the defendant superseding the plaintiffs assumption of risk. Those facts easily distinguish the ease before us.
II.
The majority opinion is flawed in two respects when viewed within the particular context of a suicide.3 First, it rests on the questionable assumption — without explanation as to whether it would make a difference to its underlying analysis of voluntariness— that Ms. Johnson’s suicide was a knowing intentional act. That assumption is doubtful on this record, which shows that Ms. Johnson had a history of serious mental illness requiring numerous hospitalizations. If failure to preserve the record in this regard is the only reason why the majority does not deal with the potential impact of diminished capacity on the voluntariness of the plaintiffs action, the majority’s answer to the certified question is likely to provide limited legal guidance, as it is easy to envision that future litigants will have learned the lesson of how to conduct future trials so as to raise doubts about the suicide’s mental state.4
Implicit in the majority’s assumption that Ms. Johnson was of sufficiently sound mind when she jumped onto the tracks is the thought that at least some degree of mental incapacity or illness might reduce the “volun-tariness” of the act of suicide so as to continue to hold the train conductor to society’s expectations of reasonable conduct. Although I welcome a suggestion that promises to temper the majority’s analysis, I believe that for purposes of imposing tort liability on a person who could have prevented death by exercise of the common law duty of due care, we should be able to raise an evidentiary presumption, as a matter of law, against the voluntariness and soundness of a suicidal action. See Rinaldo, supra, 383 N.Y.S.2d at 572, 347 N.E.2d at 898 (noting in a case where the plaintiff was struck by a subway train that “the presumption against suicide where death results from violence is well established in” New York). Our society’s condemnation of suicide carnes with it the evident thought that it is an unreasonable and hurtful act, taken in desperation. To the extent that certain exceptions are permitted, for example, to relieve from liability a physician who withholds or withdraws life sustaining procedures or assists in suicide, they are created pursuant to legislative determination that under certain circumstances suicide is considered within the sphere of personal and private decisions that should be allowed, and are strictly limited to those situations where *181the patient is fully competent, professionally advised and facing a situation that is objectively recognized as hopeless, and where the patient’s wish to “invite” death is unequivocally stated. See Uniform Determination of Death Act, D.C.Code § 6-2421 et seq. (1995); Oregon Death With Dignity Act, Or.Rev. Stat. §§ 127.800-.897 (1995).5 To assume, as the majority does, that the mentally ill mother of young children who jumps onto the tracks in front of an oncoming train is acting in such a clearheaded and voluntary manner, and that the law should thereby relieve the train operator of all responsibility for reckless conduct that assists the suicide in her purpose, goes against societal norms.
Second, the majority’s denial of recovery revives an outdated, punitive attitude toward suicide. There is no question that if instead of having jumped, Ms. Johnson had slipped or been pushed onto the train tracks, the majority would hold WMATA liable for simple negligence. It is solely her suicidal intent that relieves WMATA of liability for its operator’s reckless conduct in this case. This smacks of punishment for “bad conduct” — even though we have reason to believe that the plaintiffs fault for her conduct is likely to be mitigated by illness or pressing circumstances. Further, the majority exacts punishment not on the person who acted in contravention of society’s condemnation of suicide — she is now dead — but on her estate and her family, in other words, on her children, husband and parents who survive her. We do not criminalize attempted suicide, however, recognizing that treatment, not punishment, is the indicated response. Meanwhile, the train operator who could have prevented the suicide society abhors, and who in addition acted against societal norms, recklessly and in violation not only of the common law but also of a statute intended to protect the public that does criminalize operating a train while intoxicated, see D.C.Code § 25-127, is dismissed as a culpable party bearing responsibility for the injury. Why should his reprehensible conduct not be assessed with damages for the foreseeable harm it caused?
III.
The majority closes with a quote from District of Columbia v. Peters, 527 A.2d 1269 (D.C.1987), that “suicide generally is considered to be a deliberate, intentional, and intervening act which precludes a finding that a given defendant is, in fact, responsible for the decedent’s death,” 527 A.2d at 1275 (emphasis added). Our decision in Peters does not support the majority’s conclusion that “last clear chance may not be employed to restore liability in another for plaintiffs suicidal act.” Ante at 178. What Peters holds is simply that a suicide attempt will normally break the causal chain “between any negligent act committed earlier [by the defendant] and the suicide victim’s injury.” Johnson v. Washington Metro. Area Transit Auth., 280 U.S.App.D.C. 53, 59, 883 F.2d 125, 131 (1989). The important exception noted in Peters for situations where the defendant’s negligence produces the condition that results in suicide, see Peters, supra, 527 A.2d at 1276, recognizes that, in certain cases, the defendant’s negligence can be the proximate cause of the suicide and, therefore, actionable in tort. In this case there is no antecedent liability of the train operator that is sought to be “restored” by the doctrine of last clear chance. The act of suicide in this case, unlike the suicide in Peters, was not an intervening act between the defendant’s negli*182gence and the suicide’s death, but an act that preceded the train operator’s recklessness. Here it was the train conductor’s reckless conduct in failing to stop the train once he became aware of Ms. Johnson’s peril due to his intoxicated state, which superseded the suicidal act and was the immediate cause of death. Thus, the policy of the last clear chance doctrine should guide us in this case: that a person with a duty to act should do so to prevent injury, notwithstanding that the plaintiff created the situation resulting in the risk of injury. Considering the case of a suicidal act, where the risk created is the maximum risk of death, and obvious to the defendant, the last clear chance doctrine should apply with particular force. The majority’s exoneration of the defendant in such a case can only undermine society’s expectations of what is reasonable conduct in light of our condemnation of suicide. Cf. Rinaldo, supra, 383 N.Y.S.2d at 573, 347 N.E.2d at 898 (applying last clear chance doctrine to attempted suicide situation); Bland, supra, 191 S.W.2d at 662 (suggesting that humanitarian doctrine extends to suicides).
At oral argument counsel for WMATA was asked to distinguish a situation where the suicide, rather than jumping onto train tracks, chooses the less public and dramatic means of taking an overdose of pills in the privacy of her home. Alerted by a family member who happens onto the scene, paramedics arrive and the person is taken to the emergency room of a nearby hospital. There, the treatment team fails to provide the indicated treatment because they are intoxicated. The patient dies. Counsel for WMATA was unable to distinguish that hypothetical from this case; neither can I. Nothing in the majority’s reasoning would hold the medical personnel and hospital accountable, for in the hypothetical case the suicide similarly “invited” death and indeed achieved it by her chosen means. But cf. D.C.Code § 6-2427(a) (relieving medical personnel from criminal and civil liability for assisting in suicide by withholding or withdrawing life support procedures subject to limited conditions). Only application of the last clear chance doctrine, looking at the superseding breach of the duty of due care of the medical team that could have avoided an otherwise certain death, would result in liability. The majority’s conclusion to the contrary is beneath our honed principles imposing liability on one who with the superior ability and last opportunity to prevent serious injury, fails to act reasonably under the circumstances.
. The majority contends that where the plaintiff and defendant are equally at fault, the law “leaves [them] where it finds them.” Griffin v. Shively, 227 Va. 317, 315 S.E.2d 210, 213 (1984). Where one person's fault is the more immediate cause of injury, however, that person may be deemed to be at greater fault. Restatement (Second) of Torts § 479 cmt. a (1965).
. "The distinction [between volenti non fit injuria and assumption of the risk] is, however, one without a difference, of terminology only, and the rules applied are the same in either case." Restatement (Second) of Torts § 496A cmt. b.
. The majority opinion answers only the question of suicide and “invited” death, reserving the issue of assumption of risk by the reckless plaintiff whose conduct results in death. See ante at 176. The commentators, however, do not distinguish between a voluntary act and assumption of the risk, both of which have the consequence of relieving the defendant of duty to the plaintiff. See Restatement (Second) of Torts § 496A cmt. b, supra note 2.
. In its opinion certifying the question to us, the Court of Appeals states that the parties did not contest that Ms. Johnson "jumped of her own volition and with the intent to commit suicide.” Johnson v. WMATA, 321 U.S.App.D.C. 260, 261-62, 98 F.3d 1423, 1425 (1996). Although evidence of Ms. Johnson’s mental illness and related hospitalizations was introduced by an expert on the issue of damages and was presented to the jury before it decided that WMATA was liable for her death, the jury was not asked to find whether Ms. Johnson’s suicidal act was a knowing and intentional "wish to die” or whether, as counsel suggests, it was a cry for help. As the certified answer depends on the suicide’s awareness and intention, Ms. Johnson’s actual mental state acquires added importance.
. Under the D.C. law, a physician or other listed medical personnel who withholds or withdraws life-sustaining procedures from a "qualified patient” pursuant to a valid declaration, is not subject to civil and criminal liability or considered to have behaved unprofessionally. See D.C.Code § 6-2427(a). The resulting death is not a suicide and the physician’s actions do not constitute the crime of assisting suicide. See D.C.Code § 6-2428(a). A “qualified patient" is a person "who has executed a declaration in accordance [with the statute, requiring two witnesses] and who has been diagnosed and certified in writing to be afflicted with a terminal condition by 2 physicians who have personally examined the patient, one of whom shall be the attending physician." D.C.Code § 6-2421(5).
Under the Oregon law, a person who qualifies in terms of being competent and terminally ill, must make a voluntary written request, witnessed by at least two individuals, one of whom must attest to the patient’s capacity and desire to die. The request to die must have been made twice orally. The person always retains the right to rescind the request to die. Or.Rev.Stat. §§ 127.810 & .840.