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EXCERPT #2 -- From Ch. 3 - Torts


NEGLIGENCE DEFINED D will be liable to P for negligence when P can demonstrate that D had a duty of care to P, that D breached that duty, and that P suffered damages which were actually and proximately caused by D’s breach. The elements are: 1) duty of care; 2) breach; 3) actual cause; 4) proximate cause; and 5) damages.

GENERAL DUTY OF CARE The general duty of care requires D to act as a reasonable person under similar circumstances. This duty requires D to take precautions as to: a) foreseeable risks (Blyth v. Birmingham Waterworks--an analogous limitation to Hadley in Contracts); and b) foreseeable plaintiffs (Palsgraf v. Long Island RR-- duty is owed to those “within the zone of physical danger”). As J. Cardozo wrote in Palsgraf, “the risk reasonably to be perceived defines the duty to be obeyed.” (By contrast, in Palsgraf, J. Andrews’s dissent argued that D owes a duty to everyone, and that the case should have been disposed of based on lack of proximate causation; both approaches represent a policy choice to limit D’s liability for outcomes that are too remote from D’s act to have a just bearing on D’s liability.)


  1. Duty of Children. Children are held to the standard of care of a reasonable child of the same age, intelligence, and experience, unless engaged in an adult activity.

  2. Duty toward Children. Adults have a duty to exercise special caution towards children, taking into account the child’s age, intelligence, and experience.

  3. Duty to Rescuers. Because “danger invites rescue,” if D owed a duty to the injured party then D also owes a duty to those who come to the aid of that party.

  4. Duty to Bystanders. Under the California Supreme Court’s ruling in Thing v. LaChusa, a bystander can recover for emotional distress in witnessing injury to another, provided that: 1) the injured party is a close relative; 2) P was present at the scene and witnessed the injury; and 3) P’s reaction was beyond that of a disinterested witness.

  5. Duty to Accident Victims. There is no duty to aid another in an emergency unless: 1) the emergency or injury was caused by an instrumentality under D’s control; 2) D was under a statutory duty to act (e.g. under a Hit & Run statute); or 3) a special relationship gave rise to a special duty (e.g. family, employer, joint venture, or common carrier). When a person gratuitously undertakes to render aid, he has no duty to continue to render aid, but merely has a duty not to leave the victim worse off than he found her. Note that under the Good Samaritan Rule, a medical professional who undertakes aid without expectation of payment cannot be held liable for negligence in most states, unless P proves “gross negligence, or willful or wanton conduct” by D.

  6. Duty of Health Care Professionals. Under Tarasoff v. Regents of the University of California (1976), where a health care professional has reason to believe that a patient poses a risk to a third party, she has a duty to inform that third party.

  7. Duty of Common Carriers. Common carriers owe their passengers the highest duty of care, and must do all that human care, vigilance, and foresight reasonably can do under the circumstances to avoid harm to their passengers and property. This is not the equivalent of being an insurer of the passengers’ safety. California defines common carriers broadly (e.g. although not primarily for transportation, a Disneyland ride gave rise to common carrier liability).

  8. Duties of Landlords. The traditional rule held that once a landlord leases his property, he has no duty as to dangerous conditions on the land. Modernly, many states have adopted exceptions found in the Restatement, which are also embodied in Borders v. Rosebury, so that modernly a landlord has a duty toward: 1) conditions existing at the time of renting if landlord knew or should have known and failed to disclose; 2) conditions in common areas and those areas accessible to the public; and 3) conditions which landlord has agreed to repair or which he has negligently repaired.

  9. Duties of Landholders. Toward....

    1. Ordinary Trespassers -- The landholder has no duty other than to refrain from intentional injury.

    2. Constant Trespassers Upon a Limited Area -- The landholder has a duty to warn of known artificial conditions on the land which are not apparent.

    3. Infant Trespassers -- Under the “attractive nuisance” doctrine, there is a duty to prevent injury where an artificial condition on the land creates an reasonable risk of harm which children are unlikely to recognize due to their youth and the landholder knew or should have known that children are likely to trespass.

    4. Licensees -- A licensee is one who enters the land with permission, including social guests, officials entering in an official capacity, and trespassers of whom the landholder has become aware. Toward a licensee, the landholder owes a duty to warn of hidden artificial conditions of which he is aware.

    5. Invitees -- A “business invitee” is one whose presence on the land is likely to confer a benefit on the landholder, while a “public invitee” is one who entered the land in response to an invitation issued to the general public. Toward an invitee, the landholder owes a duty to inspect and discover all dangerous conditions on the land (both natural and artificial) and to either correct those dangerous conditions or provide adequate warnings. Under California law, in deciding whether D exercised reasonable care, the jury can consider: 1) the location of the property; 2) the likelihood that someone would come onto the property in the same manner as P did; 3) the likelihood of harm; 4) the probable seriousness of the harm; 5) whether D knew or should have known of the condition creating the risk of harm; 6) the difficulty of protecting against the risk; and 7) the extent of D’s control over the condition. Note that the duty to maintain safe premises is non-delegable.

BREACH A breach of the duty of care consists of failure to act as a reasonable person would under similar circumstances, usually measured by “the Learned Hand formula” of utility v. risk (first stated in U.S. v. Carroll Towing). P must prove breach directly, or TWO SUBSTITUTES:

  1. Res Ipsa Loquitur. In the absence of direct evidence, breach can also be established under Byrne v. Boadle, when: 1) the accident was of a type which does not ordinarily occur in the absence of negligence; 2) the source of the negligence was within the scope of the duty owed; and 3) P was not contributorily negligent .

  2. Negligence per se. Negligence per se can establish both duty and breach when D violated a statute and: 1) P is a member of the class of persons the statute was designed to protect; and 2) P’s injury was of the type the statute sought to prevent. The majority rule holds that the violation establishes negligence per se. The minority rule (followed by California) holds that it merely raises a presumption of negligence. (Note that where the plaintiff is the one who violates the statute, the majority view finds contributory negligence; in comparative negligence jurisdictions, negligence per se reduces P’s recovery as a percentage of fault.) However, D can defeat the presumption of negligence under California law if any of the following is true: 1) the violation was reasonable because of D’s specific incapacity; 2) D was unable to obey the law despite using reasonable care; 3) D was facing an emergency through no fault of his own; or 4) obeying the law would have involved a greater risk of harm to P or to others.

ACTUAL CAUSE D’s breach must be the actual cause of P’s injury. The majority of jurisdictions use the “but-for test” (sine qua non), under which P’s harm would not have occurred but for D’s act. The minority rule, followed in California, is the “substantial factor test,” under which D is liable if his act or omission was a substantial factor in P’s harm. Where concurrent tortfeasors have committed the same tort simultaneously, the substantial factor test is abandoned, and each can be considered the actual cause, under the rule of Summers v Tice.

PROXIMATE CAUSE Under the majority rule, D is liable only for foreseeable results of his negligent act (Wagon Mound I). Results are foreseeable provided they are “not extraordinary in retrospect” (Restatement). However, under the “thin-skulled plaintiff” rule, D is liable for all results which stem from an inherent frailty of P, regardless of foreseeability. Proximate cause analysis represents a policy judgment that the harm stemming from D’s conduct was too remote to have a just bearing on D’s liability; the question is whether a reasonable person would have anticipated the harm, since “on a clear judicial day you can see forever.”

  1. Superseding Cause. An intentional criminal or tortious act occurring after D’s conduct but before P’s injury breaks the chain of causation unless such act was: 1) foreseeable; or 2) in response to D’s conduct. By contrast, intervening negligence is generally foreseeable, and thus does not break the chain of causation.

  2. Concurring Cause. If not extraordinary in retrospect, a concurring cause does not break the chain of causation. Acts of animals and acts of God are generally foreseeable.

DAMAGES Unlike the intentional torts, there can be no recovery in negligence without proof of damages to the plaintiff. Further, there can be no recovery for “pure economic loss.”

  1. General damages. Damages inherent in the breach itself (e.g. pain and suffering, emotional distress, etc.).

  2. Special damages. Financial losses suffered as a result of D’s breach.

  3. Duty to mitigate. P must take reasonable action to mitigate his injury/damages, or else his damages will be reduced accordingly.

WRONGFUL DEATH Every state provides for the wrongful death action by statute. A cause of action for wrongful death allows the heirs of decedent to recover for pecuniary loss sustained due to death which proximately resulted from D’s tortious act or omission. There is no recovery for pain and suffering, grief, or loss of consortium under the majority rule, but California allows recovery for lost consortium and other related non-economic damages. D has all of the same defenses to a wrongful death action that he would have if the action had been brought by the decedent, or by decedent’s estate in a survival action. (Contrast wrongful death with a survival action, which is brought by the estate and subject to creditor claims against the estate.) In California, the types of economic damages that are recoverable in a wrongful death action are: 1) the financial support the decedent would have contributed; 2) any gifts or benefits the decedent would have received; 3) funeral and burial expenses; and 4) the reasonable value of household services that the decedent would have provided.

DEFENSE: CONTRIBUTORY NEGLIGENCE Contributory negligence is conduct on the part of P which is a contributing cause of P’s injury and which falls below the standard of care to which P is required to conform for his own protection. This defense is a complete bar to recovery in the common law jurisdictions which retain it. Under the “Last Clear Chance” doctrine, P defeats the defense by showing that D had the last clear chance to avoid the injury, though modernly courts will not apply the last clear chance doctrine to antecedent lack of preparation (e.g. failure to inspect brakes).

DEFENSE: ASSUMPTION OF RISK D has a valid defense under both negligence and strict liability theories when P voluntarily encountered a known risk. P must have subjectively appreciated/comprehended the danger. There is an exception under the “Firefighters Rule” for volunteer rescuers since they have not “voluntarily” assumed the risk (but professional rescuers have assumed the risk). Contributory negligence jurisdictions treat assumption of risk as a total bar to recovery. Modern comparative negligence jurisdictions (including CA) distinguish between secondary assumption of risk, which reduces the recovery by the percentage of D’s fault, and primary assumption of risk, which operates as a total bar to recovery, “when the nature of the activity and the parties’ relationship to it justifies the conclusion that they do not owe each other a duty of reasonable care,” under Knight v. Jewett (1992). Where D proves that primary assumption of risk should apply, P can still prevail under Knight by showing that D either intentionally caused injury or acted so recklessly that D’s conduct was so entirely outside the range of ordinary conduct that it could be prohibited without changing the nature of the activity.

DEFENSE: COMPARATIVE NEGLIGENCE Comparative negligence jurisdictions ask the jury to assess P and D in terms of their relative blameworthiness and apportion the damages accordingly, expressed as a percentage of fault. “Pure” comparative negligence jurisdictions (incl. Cal.) allow P some recovery no matter how great his own percentage of fault, while “partial” comparative negligence jurisdictions deny recovery when P’s fault is greater than (or in some jurisdictions, merely equal to) that of D. Regardless of their individual percentage of responsibility, under the majority rule joint tortfeasors are jointly and severally liable for the total percentage of damages that are not attributable to P; by contrast, California’s Prop 51 (“the Fair Responsibility Act”) eliminated joint liability for all non-economic damages (except that where D is vicariously liable, his liability is coextensive with that of his agent-tortfeasor). The effect of the doctrine of comparative negligence is to abolish the defenses of contributory negligence (including last clear chance) and implied assumption of risk.

DEFENSE: STATUTE OF LIMITATIONS Most states, including California, impose a two-year statute of limitations for the filing of negligence actions based on personal injury, and three years for actions based on property damage. Where the injury is reasonably not discovered until after the statute has run, California provides for one additional year to file from the date the injury is actually discovered.

DEFENSE: IMMUNITY D’s liability can be extinguished based on D’s status:

  1. Spouses. In most jurisdictions, spouses can sue each other for property damage but not for personal injury. California abolished spousal immunity, for both negligent and intentional torts, in Self v. Self (1962).

  2. Parent/child. Some jurisdictions don’t allow actions for personal injury between parents and children. California provides no such immunity for negligent torts.

  3. Charities. Traditionally, charities were immune from suit, but the modern trend finds liability to the extent the charity is insured or is engaging in a proprietary function.

DEFENSE: SOVEREIGN IMMUNITY Acts by government actors generally have enjoyed sovereign immunity from suit under the common law. Today, federal officials are generally immune from suit for all “discretionary acts” done in good faith; a discretionary act is one that involves the exercise of personal judgment, and thus broad latitude is given to the federal official to apply cost-benefit analysis, rather than allowing the jury to set the standard of care with the benefit of hindsight. State officials (and officials of political subdivisions of the state) have immunity for all “governmental functions,” which are those duties performed as a political subdivision of the state; however, under the Federal Tort Claims Act, and similar acts in most states, there is no immunity for “ministerial duties,” which are those duties performed according to legal authority and established procedures which do not involve personal judgment. For both federal and state actors, there is no immunity for “proprietary functions,” i.e. those activities that could just as easily be carried on by a private entity, especially those that raise revenue.