The Guide is an invaluable online tool for litigation and transactional attorneys. The Guide provides for more than 70 common law causes of action:

- Each action’s elements;
- The most recent state and federal cases that cite the actions’ elements;
- The applicable statute of limitations for each action; and
- Defenses to each cause of action.
- AND, The Guide is updated annually.

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Negligence

1 Elements and Case Citations

1. Defendant owed Plaintiff a duty of care;
2. Defendant breached that duty; and
3. Plaintiff suffered damages as a proximate result of Defendant’s breach.

Hayes v. County of San Diego, 57 Cal. 4th 622, 629 (2013).

“‘Ordinary negligence’ – an unintentional tort – consists of a failure to exercise the degree of care in a given situation that a reasonable person under similar circumstances would employ to protect others from harm.”

City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 783-84 (2007); see Cal. Civ. Code § 1714(a) (“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.”).

“Under the negligence per se doctrine, negligence is presumed if

(1) [the defendant] violated a statute, ordinance, or regulation of a public entity;
(2) the violation proximately caused death or injury to [the plaintiff];
(3) the death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and
(4) the [plaintiff] … was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.”

Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC, 221 Cal. App. 4th 102, 124-25 (2013).

CALIFORNIA STATE COURTS

Supreme Court of California: Hayes v. County of San Diego, 57 Cal. 4th 622, 629 (2013).

California 1st Dist.: Hall v. Rockcliff Realtors, 215 Cal. App. 4th 1134, 1139 (2013).

California 2d Dist.: Montoya v. Barragan, 220 Cal. App. 4th 1215, 1227-28 (2013).

California 3d Dist.: County of Sacramento v. Superior Court, 209 Cal. App. 4th 776, 779 (2012).

California 4th Dist.: Orey v. Superior Court, 213 Cal. App. 4th 1241, 1255 (2013).

California 5th Dist.: Walker v. Sonora Regional Medical Center, 202 Cal. App. 4th 948, 958 (2012).

California 6th Dist.: Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc., 190 Cal. App. 4th 1502, 1524-25 (2010).

CALIFORNIA FEDERAL COURTS

United States Court of Appeal for the 9th Circuit: Hayes v. County of San Diego, No. 09-55644, 2013 U.S. App. LEXIS 23939, at *17 (9th Cir. Dec. 2, 2013).

Central District: Padilla v. United States, No. CV 09-5651VAP(Ex), 2013 U.S. Dist. LEXIS 157180, at *17 (C.D. Cal. Oct. 31, 2013).

Eastern District: Atcherley v. Clark, No. 1:12cv00225 DLB PC, 2013 U.S. Dist. LEXIS 161893, at *27 (E.D. Cal. Nov. 13, 2013).

Northern District: Valdez v. City of San Jose, No. 4:09-cv-0176 KAW, 2013 U.S. Dist. LEXIS 160738, at *41-42 (N.D. Cal. Nov. 8, 2013).

Southern District: Beaver v. Tarsadia Hotels, No. 11cv1842 GPC(KSC), 2013 U.S. Dist. LEXIS 148987, at *72 (S.D. Cal. Oct. 16, 2013).

2 Defenses to Claim for Negligence

(1) Cal. Code Civ. Proc. § 431.30(b)(2) (pleading affirmative defenses), and other standard defenses.  See Chapter 1 for all defenses.

(2) Statute of Limitations: Cal. Code Civ. Proc. § 335.1 (two years).

(3) Comparative Negligence:  Plaintiff’s contributory
negligence “shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.”  Li v. Yellow Cab Co., 13 Cal. 3d 804, 829 (1975).  See Chapter 1 for further explanation of this defense.

(4) Release:  A validly signed release can result in the waiver of a claim for ordinary negligence.  Rosencrans v. Dover Images, Ltd., 192 Cal. App. 4th 1072, 1081 (2011); but see Gross Negligence, Chapter 49.  A release will not result in the waiver of a claim for “gross negligence.”  “Gross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. . . .  However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.  The conduct alleged must rise to the level of ‘either a “‘“want of even scant care”’” or “‘“an extreme departure from the ordinary standard of conduct.”’”  Id. at 1082.

(5) Absolute Litigation Privilege:  “[T]he absolute litigation privilege of Civil Code section 47, subdivision (b), bars derivative tort actions and 'applies to all torts   other than malicious prosecution, including fraud, negligence and negligent misrepresentation.”  See Kuehn v. Kuehn, 85 Cal. App. 4th 824, 834 (2000).

(6) Waiver:  The equitable defense of waiver requires the “intentional relinquishment of a known right after knowledge of the facts.”  See Harper v. Kaiser Cement Corp., 144 Cal. App. 3d 616, 619 (1983).  The party asserting waiver as a defense bears the burden of supplying clear and convincing evidence that waiver occured.  Id.  “Waiver may occur by intentional relinquishment or by conduct so inconsistent with an intent to enforce the right as to induce a reasonable belief that such right has been relinquished.”  Id.

(7) Good Samaritan Law:  Under the common law, “a ‘good Samaritan’ who attempts to help someone might be liable if he or she does not exercise due care and ends up causing harm.”  Van Horn v. Watson, 45 Cal. 4th 322, 324 (2008).   The Legislature has refined certain definitions.  California Health & Safety Code section 1797.70 defines “emergency” as “a condition or situation in which an individual has a need for immediate medical attention, or where the potential for such need is perceived by emergency medical personnel or a public safety agency.”  Section 1799.102, in turn, provides that “[n]o person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The scene of an emergency shall not include emergency departments and other places where medical care is usually offered.  This subdivision applies only to the medical, law enforcement, and emergency personnel specified in this chapter.”  Id. at § 1799.102(a).  With regard to persons not covered by subsection (a), it provides that “no person who in good faith, and not for compensation, renders emergency medical or nonmedical care or assistance at the scene of an emergency shall be liable for civil damages resulting from any act or omission other than an act or omission constituting gross negligence or willful or wanton misconduct.”  Id. at § 1799.102(b)(2).

(8) Superseding Cause:  “A superseding cause utterly unrelated to the defendant's negligence breaks the chain of proximate causation and is a bar to recovery.”  Safeco Ins. Co. v. J & D Painting, 17 Cal. App. 4th 1199, 1204 (1993).

(9) Firefighter’s Rule:  “[Where] the defendant's negligence, whether active or passive, creates an apparent risk, which is of the type usually dealt with by firemen, and which is the cause of the fireman's presence, and which is the direct cause of the fireman's injury, the defendant is not liable to the fireman.”  Scott v. E. L. Yeager Constr. Co., 12 Cal. App. 3d 1190, 1199 (1970); see also Walters v. Sloan, 20 Cal.3d 199, 202 (1977) (applying rule to police officers).  However, “where . . . injuries are proximately caused by tortious conduct other than that which necessitated the officer’s presence, the fireman’s rule does not bar recovery.”  Lipson v. Superior Court, 31 Cal. 3d 362, 369 (1982).  In addition, “a fireman can recover damages for personal injuries sustained as a result of a defendant’s negligent or intentional misrepresentation of the nature of the hazard which the fireman is called to confront. While the fireman’s rule shields a defendant from liability for negligently or recklessly causing or for failing to prevent a fire, it does not provide protection to a defendant who commits independent acts of misconduct after the firefighters have arrived on the premises.”  Id. at 373.

(10) Trivial defect in public area: “A municipality cannot be expected to maintain the surface of its sidewalks free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, will not necessarily make the city liable for injuries caused thereby.  What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise the city could be held liable upon a showing of a trivial defect.”  See Whiting v. National City, 9 Cal. 2d 163, 165 (1937).

(11) Public Employees:  “Except when otherwise provided by law, public employees in California are statutorily liable to the same extent as private persons for injuries caused by their acts or omissions, subject to the same defenses available to private persons.”  Hayes v. County of San Diego, 57 Cal. 4th 622, 628-29 (2013) (citing Cal. Gov’t Code § 820).

(12) Nondelegable Duty Doctrine: “[A] carrier who undertakes an activity (1) which can be lawfully carried on only under a public franchise or authority and (2) which involves possible danger to the public is liable to a third person for harm caused by the negligence of the carrier’s independent contractor.”  Castro v. Budget Rent-A-Car System, Inc., 154 Cal. App. 4th 1162, 1177 (2007).

(13) Res Ipsa LoquitorUnder the doctrine of res ipsa loquitor the party invoking the doctrine has “the burden to establish three conditions: ‘(1) the event must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the [other party]; (3) it must not have been due to any voluntary action or contribution on the part of the [party invoking the doctrine].”  Howe v. Seven Forty Two Co., Inc., 189 Cal. App. 4th 1155, 1161 (2010).

(14) Assumption of the Risk.  There are two types of assumption of the risk, primary and secondary.  See Chapter 1 for further explanation of this defense.
(a)   Primary Assumption of Risk: Limits the duty owed by Defendant when engaging in an inherently dangerous sport or activity.  If applicable, “the plaintiff's claim should be barred entirely because of a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim.”  Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 1003 (2003) (emphasis added) (making “a legal determination that the defendant did not owe a duty to protect the plaintiff from the particular risk of harm involved in the claim”).
(b) Secondary Assumption of Risk: Where the primary assumption of risk does not bar the claim as a matter of law “the issue [can] be resolved by applying the doctrine of comparative fault, and the plaintiff’s decision to face the risk would not operate as a complete bar  to recovery. In such a case, the plaintiff’s knowing and voluntary acceptance of the risk functions as a form of contributory negligence.”  Kahn v. E. Side Union High Sch. Dist., 31 Cal. 4th 990, 1003 (2003).