By Stanton T. Mathews & Kevin Lancaster
Excerpted from California Causes of Action
- Definition of Negligence
- Statute of Limitations
- Affirmative Defenses
- Related Causes of Action
The elements of a cause of action for negligence are 1) a legal duty to use due care, 2) a breach of that duty, 3) a reasonably close causal connection between that breach and the plaintiff’s resulting injury, and 4) actual loss or damage to the plaintiff. People v. Young, 20 Cal. 2d 832, 129 P.2d 353 (1942); Ahern v. Dillenback, 1 Cal. App. 4th 36, 1 Cal. Rptr. 2d 339 (1991); see also Cal. Civ. Code §1714(a) (“everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself”).
To state a negligence cause of action, the defendant must owe a duty of due care to the person injured, or to a class of persons of which the plaintiff is a member. Valdez v. J. D. Diffenbaugh Co., 51 Cal.App. 3d 494, 124 Cal.Rptr. 467 (1975). The extent and type of duty varies according to the relationship of the parties and other circumstances. See discussion of specific types of negligence in §§1-2:00 – 11:00.
Ordinary negligence consists of acts or omissions which are not compatible with the standard of care exercised by an abstract man of ordinary prudence. People v. Young, 20 Cal.2d 832, 129 P.2d 353 (1942).
Legal cause requires that the defendant’s negligent acts were a substantial factor in bringing about the plaintiff’s injury or damage. Mitchell v. Gonzales, 54 Cal. 3d 1041, 1 Cal. Rptr. 2d 913 (1991); CACI 430.
It is a relatively broad standard requiring only that the contribution of the individual cause be more than negligible or theoretical. Bockrath v. Aldrich Chemical Co., 21 Cal 4th 71, 79 (1999); Bunch v. Hoffinger, 123 Cal.App 4th 1278 (2004).
Damage must be pled and proved as an essential element of negligence. Rosales v. Stewart, 113 Cal. App. 3d 130, 169 Cal.Rptr. 660 (1980). The phrase “injury occasioned to another” as used in Civil Code §1714 is the injury to the person who is the victim of the actor’s negligence. Buckley v. Chadwick, 45 Cal. 2d 183, 288 P.2d 12 (1955); CACI 261.
The duty of care requires the use of ordinary care to prevent injury to others and is determined on a case-by-case basis.Weirum v. RKO Gen., Inc., 15 Cal. 3d 40, 123 Cal. Rptr. 468 (1975).
Policy factors which must be balanced in determining the scope of a particular defendant’s duty of care include the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between defendant’s act and plaintiff’s injury, the moral blame attached to defendant’s conduct, the policy of preventing future harm, and the extent of defendant’s burden and the consequences to the community of imposing duty and liability. Valdez v. J. D. Diffenbaugh Co., 51 Cal. App. 3d 494, 124 Cal. Rptr. 467 (1975).
The “abstract man of ordinary prudence” test of ordinary negligence is objective rather than subjective. People v. Young, 20 Cal. 2d 832, 129 P.2d 353 (1942).
Liability is incurred in tort when a person at the time of the negligent act or omission should have reasonably foreseen that such act or omission could result in damage to another. Alva v. Cook, 49 Cal. App. 3d 899, 123 Cal. Rptr. 166 (1975).
To establish negligence per se, a plaintiff must prove: (1) defendant violated a statute, ordinance or regulation of a public entity, (2) the violation proximately caused his injury, (3) the injury resulted from an occurrence the nature of which the statute was designed to prevent, and (4) he was one of the class of persons for whose protection the statute was adopted. Capolungo v. Bondi, 179 Cal. App. 3d 346, 349-350, 224 Cal. Rptr. 326 (1986); see also Cal. Evid. Code §669.
The element of breach of duty is a question of fact for the fact-finder to decide. Slaughter v. Legal Process and Courier Serv., 162 Cal.App. 3d 1236, 1250, 209 Cal.Rptr. 189 (1984).
Conformity with the general practice or custom in the business or trade will not excuse conduct which is not consistent with due care. Holt v. Department of Food and Agric., 171 Cal.App. 3d 427, 435-36, 218 Cal. Rptr. 1 (1985) (crop duster breached its duty of care by spraying dangerous chemical without sufficient surveillance of rice field to determine whether persons were in area).
The owners and operators of a dance hall breached their duty to a dancer when they increased the risk of falling by adding a slippery substance to the dance floor. Bush v. Parents Without Partners, 17 Cal. App. 4th 322, 329, 21 Cal.Rptr.2d 178 (1993).
A carrier who breached a shipping contract by contaminating the shipped product was liable in tort for negligently performing the contract. North American Chemical Co. v. Superior Court, 59 Cal.App. 4th 764, 776, 69 Cal.Rptr. 2d 59 (1997).
§1:33a Negligence Need Not Be Sole Cause
The tortfeasor is legally responsible for all the damages for which the negligent act is a “substantial factor.” Mitchell v. Gonzales, 54 Cal. 3d 1041 (1991).
Although Code of Civil Procedure §425.10(a)(1) requires complaints to contain a “statement of the facts constituting the cause of action, in ordinary and concise language,” including the cause of the injury, “more than a hunch, a speculative belief or wishful thinking [is required]: it requires a well-founded belief.” Bockrath v. Aldrich Chemical Co., 21 Cal. 4th 71, 82 (1999).
Therefore, “a force which plays only an ‘infinitesimal or theoretical’ part in bringing about injury, damage, or a loss is not a substantial factor.” Rutherford v. Owens-Illinois, Inc., 16 Cal. 4th 953, 969 (1997). But a very minor force that does cause harm is a substantial factor. Bockrath, 21 Cal.4th at 79.
Ordinarily, plaintiffs bear the burden of proving causation. However, in the proper case, where plaintiff’s inability to prove causation is inherent in the condition created by defendants themselves, a presumption of causation may arise with the burden shifting to defendants “who will absolve themselves if they can.” Haft v. Lone Palm Hotel, 3 Cal.3d 756, 772 (1970).
§1:33b Intervening/Superseding Cause
Whether an independent intervening act breaks the chain of causation is determined by the foreseeability of that act. An act is not foreseeable, and is thus a “superseding cause” of the injury, if it is highly unusual or extraordinary and is not reasonably likely to happen. Schrimscher v. Bryson, 58 Cal. App. 3d 660, 130 Cal. Rptr. 125 (1976).
An intoxicated driver, at the time that his negligence caused a collision, could not reasonably have anticipated that a second intoxicated driver would run into his vehicle which caused injury to an investigating highway patrolman. The action of the second motorist was a superseding cause and the first motorist was not liable to the patrolman. Schrimscher v. Bryson, 58 Cal. App. 3d 660, 130 Cal. Rptr. 125 (1976).
A street vendor who attracted children by a sound device was liable to a child who was struck by another’s automobile while crossing the street. The vendor’s “intervening cause” defense failed because the vendor could foresee that an intervening act of negligence by a passing motorist might harm potential customers. Ellis v. Trowen Frozen Prods., Inc., 264 Cal.App. 2d 499, 70 Cal.Rptr. 487 (1968).
A homeowner’s electrocution by defendant’s uninsulated power line while trimming trees was not a superseding cause as the injury sustained was an expected result and the homeowner was within the class of persons exposed to danger when the utility deliberately permitted an uninsulated power line to remain near the tree. Pappert v. San Diego Gas & Elec. Co., 137 Cal. App. 3d 205, 186 Cal. Rptr. 847 (1982).
§1:33c Reasonably Foreseeable Damage
A motorist proximately caused injury to a plaintiff when he knocked down a power pole resulting in a power surge that damaged a motor at the plaintiff’s factory and idled employees for two hours. The motorist was liable for the replacement cost of the motor and for the wages paid to the idled employees since those damages were reasonably foreseeable. George A. Hormel & Co. v. Maez, 92 Cal. App. 3d 963, 155 Cal. Rptr. 337 (1979).
An ice company engineer’s failure to take steps to prevent the bursting of sulfuric acid drums after seeing their bulged condition, which he knew was caused by internal pressure, was a proximate cause of injuries to a bystander when the drums burst. The chemical company’s delivery of the drums to the ice company was also a proximate cause since the chemical company knew the drums were likely to burst if not kept cool and vented and failed to warn the ice company of such fact. Each company was liable. Gall v. Union Ice Co., 108 Cal.App. 2d 303, 239 P.2d 48 (1951).
The defense of “inevitable accident” is nothing more than a denial of negligence by defendant, or a contention that his negligence, if any, was not a proximate cause of the injury. Smith v. San Francisco, 117 Cal. App. 2d 749, 256 P.2d 999 (1953) (“inevitable accident” jury instruction was not in error where plaintiff pedestrian stepped into path of bus which allegedly failed to yield and struck plaintiff).
In a case against a landlord by a tenant who was raped on the premises, speculation as to whether the rapist entered through a broken security gate was insufficient to establish proximate cause. Leslie G. v. Perry & Associates, 43 Cal. App. 4th 472, 50 Cal. Rptr.2d 785 (1996).
Generally, a fire is the proximate cause of all injuries and damage it may produce, whether it spreads to one abutting property or for several miles. Osborn v. Whittier, 103 Cal.App. 2d 609, 230 P.2d 132 (1951).
“If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a … duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to create a cause of action for negligence.” Budd v. Nixen, 6 Cal. 3d 195, 200, 98 Cal. Rptr. 849 (1971), superseded, in part, by statute in Laird v. Blacker, 229 Cal. App. 3d 159, 279 Cal. Rptr. 700, (1991).
The plaintiff’s damages cannot be contingent or speculative. Negligence in drafting a will did not result in damages until the testator’s death. Horne v. Peckham, 97 Cal. App. 3d 404, 158 Cal.Rptr. 714 (1979).
Negligence causing only monetary harm does not give rise to emotional distress damages. Quezada v. Hart, 67 Cal.App. 3d 754, 136 Cal.Rptr. 815 (1977). See also Rest.2d Torts, §313; Prosser & Keeton, Torts (5th ed. 1984) §54, p. 361.
§1:34a Emotional Distress
In negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages. Crisci v. Security Insurance Co., 66 Cal. 2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173 (1967).
“[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985, 25 Cal. Rptr. 2d 550 (1993) (emotional distress caused by fear of a cancer that is not probable should generally not be compensable in a negligence action).
Prior law allowed homeowners who sued a contractor for construction defects in their custom-built home to recover damages for emotional distress resulting from the negligence because structural defects could cause the house, or parts of it, to collapse and, thus, created a threat of physical injury. Erlich v. Menezes, 60 Cal. App. 4th 1357, 1363, 71 Cal. Rptr. 2d 137 (1998), overruled, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999) (unless defendant has assumed a duty to plaintiff in which plaintiff’s emotional condition is an object, recovery is available only if emotional distress arises out of defendant’s breach of some other legal duty and is proximately caused by breach of that independent duty; with rare exceptions, breach of duty must threaten physical injury, not simply damage to property or financial interests).
- Compensatory Damages (Cal. Civ. Code §3333) (the general measure of tort damages is the amount which will compensate for all the detriment proximately caused, whether it could have been anticipated or not).
- Emotional Distress (Erlich v. Menezes, 21 Cal. 4th 543, 87 Cal. Rptr. 2d 886, 981 P.2d 978 (1999) (unless defendant has assumed a duty to plaintiff in which plaintiff’s emotional condition is an object, recovery is available only if emotional distress arises out of defendant’s breach of some other legal duty and is proximately caused by breach of that independent duty; even then, with rare exceptions, that breach of duty must threaten physical injury, not simply damage to property or financial interests)).
- Limit of Liability (Cal. Civ. Code §1431.2;Greathouse v. Amcord, Inc., 35 Cal. App. 4th 831, 41 Cal. Rptr. 2d 561 (1995) (liability of an individual defendant for non-economic damages cannot exceed that defendant’s percentage of fault)).
- Punitive Damages Generally Not Available (Ebaugh v. Rabkin, 22 Cal. App. 3d 891, 99 Cal. Rptr. 706 (1972) (mere negligence, even gross negligence, is not sufficient to warrant punitive damages); but see Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985, 25 Cal. Rptr. 2d 550, 863 P.2d 795 (1993) (punitive damages sometimes may be assessed in unintentional tort actions)).
Prior to 2003, the statute of limitations for personal injury actions was one year from the date of injury. Cal. Code Civ. Proc. §340. Effective January 1, 2003, the new Code of Civil Procedure §335.1 extends the statute of limitations to two years. Avila v. Citrus Community College Dist., 38 Cal.4th 148, 41 Cal.Rptr. 3d 299, 131 P.3d 383, (2006).
- Comparative Negligence (Li v. Yellow Cab Co., 13 Cal. 3d 804, 119 Cal. Rptr. 858 (1975) (“comparative negligence,” which assesses liability in proportion to fault, supersedes the “all-or-nothing” rule of contributory negligence, which bars all recovery when the plaintiff’s negligent conduct contributes, as a legal cause, in any degree to the harm suffered by plaintiff)).
- Note: The doctrine of “last clear chance” and the defense of “assumption of risk” are abolished to the extent that they are merely variants of the former doctrine of contributory negligence. Both are now subsumed under comparative fault. Li v. Yellow Cab Co. ofCalifornia, 13Cal. 3d 804, 119Cal. Rptr. 858 (1975).
- Assumption of Risk (Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2 (1992)).
- Primary Assumption of Risk. The doctrine of assumption of risk is a complete bar to plaintiff’s recovery, even after adoption of comparative fault principles, in cases involving “primary assumption of risk,” i.e., where defendant has no legal duty to protect plaintiff from the particular risk of harm that caused the injury. Knight v. Jewett, 3 Cal. 4th 296, 11 Cal. Rptr. 2d 2 (1992) (primary assumption of risk doctrine barred recovery for injuries in social game of touch football; rough play that may have been “reckless” was not so totally outside range of ordinary activity involved in sport that it could serve as basis for imposing legal liability).
- Secondary Assumption of Risk. In cases involving “secondary assumption of the risk,” i.e., where defendant does owe a duty of care to plaintiff, but plaintiff proceeds to encounter a known risk imposed by defendant’s breach of duty, the comparative fault scheme applies, and the court may consider the relative responsibility of the parties in apportioning loss resulting from the injury. Knight v. Jewett, 3Cal. 4th 296, 314-15, 11Cal. Rptr. 2d 2 (1992).
- Waiver (YMCA of Metropolitan Los Angeles v. Superior Court, 55 Cal. App. 4th 22, 27, 63 Cal. Rptr. 2d 612 (1997) (plaintiff who voluntarily released defendant YMCA from negligence liability arising from her use of its premises, facilities, or equipment, in return for her right to participate in the Senior Program could not maintain negligence cause of action. The release did not violate any public policy but actually benefited the public at large by enabling the YMCA to provide low-cost recreational activities to seniors)).
- However, the role of the defendant is an important component in the legal analysis relating to duty. A business, participant or manufacturer may have different duties and therefore may not avail themselves of the Assumption of the Risk Doctrine. For instance, a swimming pool operator cannot violate a safety statute relating to pool maintenance and claim assumption of the risk for a slip and fall. Capri v.L.A. Fitness International, LLC, 136Cal. App. 4th 1078 (2006). Similarly, a co-participant negligently operating an All Terrain Vehicle in violation of the California Vehicle Code is unable to invoke the doctrine. Huff v. Wilkins, 138Cal. App. 4th 732 (2006). Finally, a manufacturer may not insulate itself from supplying defective equipment by use of the doctrine. Ford v. Polaris Industries, Inc., 139Cal. App. 4th 755 (2006).
- Several Liability for Non-Economic Damages (Cal. Civ. Code §§1431.1 – 1431.5 [Prop.51]).
- See generally Appendix A.
- Professional Negligence (§1-2:00 – 5:00)
- Parent’s Liability for Child’s Torts (§1-12:00)
- Negligent Entrustment (§1-7:00)
- Motor Vehicle Negligence (§1-6:00)
- Common Carrier Negligence (§1-8:00)
- Products Liability (§§6-1:00, 2:00)
- Ultrahazardous Activities (§1-11:00)
- Premises Liability
- Governmental Liability for Dangerous Condition of Property
- Negligent Infliction of Emotional Distress (§§2-2:00, 3:00)
- Intentional Infliction of Emotional Distress (§2-1:00)
- Alcohol Provider to Minor (§1-10:00)
- Good Samaritan Liability (§1-9:00)
Stanton T. Mathews’ trial practice through the last 20 years has been focused on the representation of injured victims of personal, corporate and governmental negligence and wrongdoing. He was trial counsel on the first successful case for fraud against a general aviation manufacturer in U.S. history. He prevailed in a case against the LAPD for the unlawful use of a nightstick just months before the same department successfully defended itself for its officers’ use of their nightsticks in the Rodney King case. Mr. Mathews brought in one of the first verdicts in OrangeCounty involving a third-party attack (attempted rape/murder) on the premises of a nationwide realty firm.
Kevin Lancaster practices in the areas of catastrophic industrial injury, premises liability, professional negligence, products liability and medical malpractice. Mr. Lancaster served as counsel in the reported cases of Ramirez v. Nelson, 44 C. 4th 908 (2008); Medina v. Hillshore Partners, 40 Cal. App. 4th 477 (1995); Nichols v. Keller, 15 Cal. App. 4th 1672 (1993); and Rosso, Johnson, et al. v. Superior Court of San Francisco, 191 Cal. App. 3d 1514 (1987).
They are the authors of, from which this article is excerpted.