Levine, J. (dissenting). We respectfully dissent. A jury, if it believed the testimony of plaintiff Jon P. Bixby, could find the following facts. While Bixby and his fiancée were visiting the Ross Park Zoo in the City of Binghamton, Broome County, Bixby observed defendant Robert Eddy and three companions, two men and a woman, violating the zoo’s rules against drinking alcoholic beverages on the premises. Subsequently, Bixby apparently incurred the wrath of Eddy’s group by interfering with their attempts to annoy caged bobcats with a long stick. Bixby was subjected to verbal abuse by way of profanities and insults from Eddy’s group and challenges to fight. Eddy and his three companions followed Bixby and his fiancée out of the zoo, "still verbally abusing us, hassling us, trying to provoke a fight”. Bixby waited for Eddy to leave the zoo parking lot before departing in order to avoid a confrontation. As Eddy’s vehicle left the parking lot, Eddy and his companions "were hanging out the top of the car giving us the finger, yelling at us”. Eddy did not drive away but instead parked in a driveway adjoining the route from Ross Park, waiting for Bixby to pass on his motorcycle in order to follow him. When Bixby drove by, Eddy pulled out behind him and persisted in following despite Bixby’s efforts to elude him.
We think a trier of fact could reasonably find on the basis of the foregoing facts that Bixby was placed in fear that Eddy was following him for the ultimate purpose of assaulting Bixby with his automobile at some opportune moment or mounting a physical attack once Bixby reached his destination. Keeping in mind that Bixby was outnumbered three males to one, that Eddy’s group had been drinking and had already manifested extreme hostility, and that Bixby was on a motorcycle and, thus, quite vulnerable to a vehicular assault, *55Bixby’s fears were certainly not irrational under the circumstances.
Conversely, even if it was not Eddy’s actual intent to assault Bixby, Eddy should certainly have expected that his persistent following of Bixby, even at a distance, would instill fear in Bixby of physical danger to himself and his fiancée. A jury, in our view, could readily conclude that it was likewise foreseeable that such fear would cause Bixby to drive faster than he should have in approaching the curve where he went out of control, to be distracted so as not to see the curve in time, and generally to impair Bixby’s driving ability. Thus, in our opinion, the evidence would permit a jury to find that Eddy’s conduct created a foreseeable risk of injury to Bixby which, if that risk was unreasonable, could support recovery. A jury could easily find the foreseeable risk of harm here to be unreasonable. "Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act is negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done” (Restatement [Second] of Torts § 291 [emphasis supplied]). The social value of Eddy’s activity leading up to the accident was nil.
Although research has not uncovered any New York case close in point, the principle giving rise to the imposition of liability here is well founded in tort doctrine. Thus, Restatement (Second) of Torts § 303 holds: "An act is negligent if the actor intends it to affect, or realizes or should realize that it is likely to affect, the conduct of another, a third person, or an animal in such a manner as to create an unreasonable risk of harm to the other.” Another respected authority on tort law states that "a person may be required to anticipate * * * that human beings who are placed in a position of peril will endeavor, more or less instinctively, to escape, and may do harm to themselves or others in the attempt” (Prosser and Keeton, Torts § 33, at 198 [5th ed]).
Other jurisdictions are in accord with the foregoing authorities. For example, the Supreme Court of New Mexico, in Lujan v Reed (78 NM 556, 560, 434 P2d 378, 382) held:
"Negligent conduct may consist of an activity which a reasonable person should recognize as involving an unreasonable risk of harm to another. * * * This recognition often involves an assessment of how others may react to the actor’s *56conduct. * * * The danger to the victim may often arise from the reaction of that person to the conduct of the actor. * * *
"It would certainly seem reasonable to anticipate that a person would make an effort to extricate himself from what appeared to be a frightening situation. This effort may of necessity be made in haste and without an accurate assessment of the nature of the risks and accordingly expose the victim to danger in the process. Whether the risk that such an effort will be made in response to the actor’s conduct is an unreasonable one under a particular set of circumstances requires a determination whether the magnitude of the risk to another is outweighed by the utility of the conduct of the actor”.
In Sparks v City of Compton (64 Cal App 3d 592, 597, 134 Cal Rptr 684, 687), a California appeals court ruled that "[generally, one who negligently creates a situation threatening harm to another person may be held liable for injury to that person or a third party resulting from the threatened party’s efforts to avoid the peril”. The Wisconsin Supreme Court, in LePoidevin v Wilson (111 Wis 2d 116, 125, 330 NW2d 555, 560), stated that an "actor is negligent if he or she intentionally creates a situation, or if his or her conduct involves a risk of creating a situation, which the actor should realize as likely to be dangerous to another individual in the event of a customary or normal act of that individual”.
There is no reason to believe that it would be inconsistent with New York law to apply the foregoing principle to impose liability here for the harm from a plaintiff’s foreseeable reaction to the threatening conduct of a defendant. Indeed, in Lowery v Manhattan Ry. Co. (99 NY 158, 162), the Court of Appeals held that injuries from "an instinctive act which naturally would take place when a person seeks to avoid great peril” may give rise to liability of the person whose "negligent conduct and a sense of impending danger induced the act”. And New York has also recognized recovery for consequential physical injuries from negligently induced fright and hysteria (see, Battalla v State of New York, 10 NY2d 237, 239).
Finally, we think that the majority is in error in apparently concluding in the penultimate paragraph of its opinion that Bixby can only recover upon proof of a high-speed close pursuit and threat of immediate violence by Eddy. That such conduct would, under existing New York law, give rise to liability as a civil assault (see, Roller v Frankel, 14 AD2d 971; *57Prosser and Keeton, Torts § 10, at 44-45 [5th ed]) does not negate the propriety of granting recovery on the negligence theory we believe is applicable to the facts, proof of which Bixby submitted on his direct case.
For all the foregoing reasons, we would reverse Supreme Court’s order and remit for a new trial.
Weiss, J. P., and Yesawich, Jr., JJ., concur with Mercure, J.; Levine and Harvey, JJ., dissent and vote to reverse in an opinion by Levine, J.
Order affirmed, with costs.