It is a legal obligation that a person has to another person to follow a certain standard of conduct when performing certain acts that could foreseeably harm others.
“Everyone is responsible, not only for his or her own wilful acts, but 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”1.
In cases of negligence, you must demonstrate that the defendant or responsible party owed a legal duty of care to you.
This generally means that the defendant was required to exercise the same degree of ordinary care that another person would show under similar circumstances, or was obligated to at least exercise reasonable care when doing anything that could potentially harm another person.
The duty of care varies depending on the particular defendant and if he or she (or entity) possessed a particular skill that was being exercised when the plaintiff was harmed. Examples include:
Anyone who drives a motor vehicle has a duty to exercise reasonable care, which includes obeying all traffic laws, keeping a safe distance behind other vehicles, and being on the lookout for pedestrians.
If driving in poor weather, drivers are expected to use particular caution such as slowing down, braking early, and using snow tires or chains if they will be driving in heavy snow.
A driver breaches his duty of care when he causes an accident because he was speeding, made an unsafe lane drive, was following a car too closely, or otherwise failed to obey traffic laws.
When a physician provides negligent care, it is called medical negligence or malpractice. In California, the standard of care expected of a physician is the level of skill, knowledge and care in diagnosis and treatment that other reasonably careful orthopedists, surgeons, nurses, neurologists, or any other health care provider practicing in the same field as the defendant, would use in the same or similar circumstances2.
Property owners and those who are in control of property owe a duty of care to those who come onto their premises. Property or business owners must exercise reasonable care to discover hazards or dangers on their property and to repair, replace or warn those on their property of the existence of any danger that could foreseeably lead to harm.
California law has largely eliminated the differences in the duty of care owed by business owners toward their patrons, or business licensees, and that owed by homeowners toward guests, or licensees. Where this distinction still exists in other states, the business owner has a higher duty of care to ensure the premises is safely maintained, which includes actively inspecting the property for potential hazards.
This includes persons who also control the property such as a storeowner who is leasing the premises.
While a homeowner does not generally have a duty to regularly or routinely inspect his property for potentially dangerous conditions, it is an issue whether the homeowner exercised reasonable care in protecting against the harm to guests depending on the nature of the harm, the foreseeability of harm, the connection between the defendant’s conduct and the injury suffered, and other factors3.
The duty of care concerns reasonably foreseeable risks of harm. For instance, a wet floor from a spill poses a risk to grocery store shoppers of slip and fall, as does the discovery or knowledge of a broken step.
Regarding assaults, a business owner does not necessarily owe a duty to insure that its invitees are insulated from risk, but he or she must take reasonable preventative measures or undertake reasonable care for their safety in situations where it is foreseeable that such acts could take place or is reasonably anticipated4.This duty would arise where the business owner had notice that previous assaults had taken place. This also includes landlords who have a duty of care toward their tenants to take reasonable steps to control common areas against foreseeable criminal acts5.
Notice to the defendant landowner of the existence of the hazard is a major component in holding the defendant liable. Evidence is needed to show that the defendant knew or in the exercise of reasonable care should have discovered the hazard6.
Regarding trespassers, property owners still owe a duty of care towards these uninvited persons on their property. Generally, a landowner cannot lay traps for trespassers or use malicious means to harm a trespasser but retains a duty to maintain the property with reasonable care. If the trespasser is committing a crime on the property, there is probably less liability for the landowner if the trespasser is injured due to a hazardous condition.
Product manufacturers and drug companies owe a duty of care to consumers that includes a duty to exercise reasonable care in its design so it can be used safely as intended by consumers7.
A manufacturer breaches its duty of care if it:
- Fails to exercise care in the manufacturing process and produces a defect
- Fails to carefully design the product in a safe manner
- Fails to perform adequate testing or to disclose adverse test results
- Fails to provide adequate warnings
- Fails to recall a product after becoming aware of defects after the product is in circulation
Manufacturers must exercise the amount of care in designing, manufacturing, inspecting, installing, or repairing the product that a reasonably careful designer, manufacturer, inspector, installing, or repairer would use in similar circumstances to avoid exposing others to a foreseeable risk of harm. This would necessitate the duty to test such products if a defective condition could be disclosed by reasonable inspection and tests.
This includes a duty to warn of a dangerous condition of the product or of facts which makes it more likely to be dangerous to those whom it should expect to use the product or be endangered by its probable use so long as the manufacturer has reason to believe the consumer will not realize its dangerous condition8.
Minor children are not expected to acts as adults and are not held to the same standard of care. If between the ages of 7 and 17, a child is held to the same standard as a child of the same age, mental capacity, and life experience9.
However, if the child is engaged in an adult activity such as driving, then this standard does not apply and they are they are obligated to the same duty of care as adults10.
Although plaintiffs may be owed a duty of care by someone whose conduct harmed them, they also have a duty of care to act reasonably and to avoid injuring themselves.
For example, if a defendant was driving while intoxicated and changed into your lane of traffic without signaling but you were traveling 90 miles per hour, then your own conduct is taken into account in determining liability.
A plaintiff’s comparative or contributory negligence can lessen the amount of damages you sustain but under California law this will not negate the duty of care owed to you. California is a pure comparative negligence state whereby your damages are reduced by your degree of fault11. For instance, if your damages are $100,000 but you are found to be 80% at fault, you can still collect $20,000 from the other negligent party.
Many waivers or exculpatory contracts are used by defendants who are involved in recreational activities such as ski lifts, municipal swimming pools, and scholastic sporting events.
Although a defendant can have a plaintiff agree to waive its acts of ordinary negligence, it cannot waive conduct amounting to gross negligence as this would violate public policy.
Many sporting or recreational activities involve a certain degree of risk so that by participating, the plaintiff is assuming certain risks13.
Assumption of the risk is considered an affirmative defense whereby California law shifts the burden of proof in such cases to the plaintiff or participant to demonstrate that there was gross negligence on the party of the defendant. If only ordinary negligence, then the defendant would likely not be held liable.
There are two types of assumption of the risk:
Primary Assumption: The risk of injury is so inherent in the type of activity that the defendant is not liable for ordinary negligence.
Secondary Assumption: The defendant still owes a duty of care to the plaintiff.
Regarding primary assumption in an athletic event, a defendant such as a school or a coach, does not have a legal duty to eliminate or protect a person against the inherent risks in a certain activity, but they do have a duty to not increase the risks that are over and above the inherent risks14. This does not include liability for negligent hiring of employees whose negligent conduct caused an accident since this is ordinary negligence.
It may arise to gross negligence if the employee who sexually assaulted a participant was a sex offender or had several convictions for felony assault and the defendant employer failed to conduct a background check or employed the person regardless of the individual’s criminal record. The assault is not a risk that the plaintiff assumed.
In cases of ordinary negligence or where the plaintiff has suffered an injury that was foreseeable and an inherent risk in the activity (head injury in a football game, knee injury in a soccer match, hit in the head by a foul ball at baseball game), then a court may find that any signed waiver was valid. The language, however, must be clear, unambiguous and explicit, in large enough font and be conspicuously printed15. A participant would likely assume the risk nonetheless in the absence of a waiver.
Regarding secondary assumption, this involves an activity where the risk of injury is not an inherent result of the activity but the plaintiff assumes the risk nonetheless. In these cases, the defendant still owes a duty of care to the plaintiff. For instance, a business owner leases a product to a plaintiff and warns the person that the product has a defect.
Regardless of the warning, the plaintiff rents the product and is harmed by it. The business owner did not waive his duty of care to the plaintiff to provide a safe product but the trier-of-fact will have to determine the degree of comparative negligence by the plaintiff who assumed the risk of using the product.
It is generally easy for a court to determine if a duty of care existed in a certain situation where someone sustained an injury because of the conduct of another party. Most activities that are performed carelessly or negligently that result in an injury involve the defendant’s breach of a duty of care.
In such cases, there is usually an established or implied relationship. These include:
- Parent to child
- Motorist to other drivers, passengers, and pedestrians
- Doctor to patient
- Nursing home to resident
- Landlord to tenant
- Business owner to patron
- Homeowner to guests
- Teacher to student
- Coach to athlete
The following are common examples of situations where a duty of care exists and how the court determines if it was not upheld or was breached:
Anyone who drives a motor vehicle has a duty of care to passengers, other motorists, and pedestrians. This means exercising ordinary care in driving that requires you to obey the traffic laws, not speed, and to use caution at all times.
You breach that duty of care when your failure to use caution results in an injury. For instance, you failed to stop at a red light, made an unsafe lane change, failed to stop in time because you were speeding or following a car too closely, or did not notice a pedestrian in the crosswalk.
A physician who treats or cares for a patient has a duty of care toward that patient. To determine if that duty of care was breached, a plaintiff has to first initiate the claim by giving the appropriate notice.
Many states require that before a plaintiff can bring a medical malpractice claim that the plaintiff first obtain an Affidavit or Certificate of Merit from a licensed physician practicing in the same field as the defendant doctor attesting that the doctor’s treatment or conduct fell below the applicable standard of care. California only requires that a 90-day notice be given to the defendant before a medical malpractice claim can be filed in court16. The notice must include:
- A legal basis for the claim
- Type of loss sustained (additional surgeries, lost time from work, medical expenses)
- Nature of the injuries (heart attack, stroke, permanent disability, death)
Expert testimony is typically required in any medical negligence case to establish the standard of care and that a particular physician breached it17. The expert must be a physician who practices or practiced in the same field of medicine as the defendant or has the special skills, knowledge, experience, training or education to qualify them as an expert in the subject for which they are testifying.
The expert’s testimony should state the defendant lacked or failed to exercise the requisite degree of knowledge or skill or the failure to exercise this degree of care and caused the injury18.
Only when the type of conduct required is within common knowledge or is negligence of a common type is expert testimony on the standard of care not required19. An example is a sponge or other medical instrument left inside a body cavity and where the plaintiff is able to apply the doctrine of res ipsa loquitur.
This is a legal principle where the burden of proving that negligence was not committed is shifted to the defendant since negligence is implied in this instance.
There are situations like the one where a sponge or medical instrument was left inside a patient’s body cavity where a plaintiff need not prove a breach of the duty of care. In such cases, the plaintiff is able to shift the burden of proving that negligence was not committed to the defendant since negligence is implied20. This principle, called Res Ipsa Loquitur, has certain criteria:
The accident must be of a kind that does not ordinarily occur in the absence of negligence
It must be caused by an agency or instrumentality within the exclusive control of the defendant.
It must not be due to any voluntary action or contribution on the part of the plaintiff.
In such cases, the court presumes the existence of the presumed fact, which is that the proximate cause of the occurrence was the negligent conduct of the defendant, unless proved otherwise21.
Returning to the case where a surgical sponge or other device is inadvertently left inside a patient’s body cavity following surgery, this can lead to infections and require additional medical expenses, more surgery, recovery time, loss of income, and pain and suffering. Leaving an item inside a patient does not ordinarily occur unless the doctor or nurse was negligent; it was caused by the defendant surgeon or assistant who had exclusive control of the procedure; and the plaintiff did not contribute to the act.
As indicated, manufacturers of products and drugs have a duty to consumers to make their products reasonably safe for its intended use and for those persons who are expected to use it and to provide adequate warnings about potential risks or dangers that the product poses.
For instance, the warning should state that a drug is not to be used by children under 12 or if you are pregnant, have diabetes, or some other medical condition.
If the court determines that a defect in the product is unreasonably dangerous (high risk of stroke, infection, or disfigurement), then the defendant is deemed strictly liable and the burden of proving that the product was produced with reasonable care is shifted to the defendant22.
Expert testimony on careless manufacture, design or failure to warn is generally needed to prove a breach of the duty of care and that strict liability applies.
There are other certain situations that are deemed inherently dangerous so that the person with a duty of care is held liable regardless of how much care he or she took if an injury occurs. This would include housing dangerous animals like a mountain lion or poisonous snake, or if engaged in manufacturing explosives.
Many states make a distinction in the duty of care depending on whether you are a business owner or homeowner with business owners owing a higher duty of care in these jurisdictions. California has blurred the distinction regarding the duty of care owed toward business invitees, licensees and trespassers and has all but eliminated it24. A court, however, will still look to the circumstances of each case, including the status of the injured party among other factors25.
Detailed factors that a court will examine in determining whether the property owner upheld the standard of care include:
- The location of the property
- The likelihood that someone would come on the property in the same manner as the plaintiff
- The likelihood of harm to that person
- The probable seriousness of harm
- Whether the defendant knew or should have known of the condition that created the risk of harm
- The difficulty of protecting against the risk of such harm
- The extent of the defendant’s control over the condition that created the risk of harm
- Any other relevant factors
Notice plays a prominent role in determining if there was a breach of the duty of care.
Direct notice occurs when the landowner or business owner is told by a guest, consumer or employee that a dangerous condition exists or the defendant discovers it himself. Constructive notice is implied when in the exercise of ordinary care, the defendant should have been aware of the condition.
In determining constructive notice of the condition that created the risk, the trier-of-fact looks to see whether the condition was of such a nature that it existed long enough so that the defendant had sufficient time to discover it and by using reasonable care:
- Repaired it
- Protected against harm from the condition
- Adequately warned of the condition
Business owners have a duty to maintain their property in a reasonably safe condition that includes a regular inspection of their property for potential hazards.
If not performed, then a jury or court could find that the owner failed to use reasonable care and exposed patrons to an unreasonable risk of harm that the owner either knew or had constructive notice of such condition26.
If an inspection was not made within a reasonable time before the accident, this may be evidence that the condition existed long enough so that a business owner using reasonable care would have discovered it27.
Homeowners have the same duty to use reasonable care in keeping their property safe, which may include inspecting the premises for hazards and whether he or she knew or should have been aware of the dangerous condition. A court or jury will look at all the circumstances and the factors enumerated above to determine if the homeowner exercised reasonable care in preventing the plaintiff’s injury.
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- Civil Code § 1714(a). [↩]
- Landeros v. Flood (1976) 17 Cal.3d. 399, 408 [↩]
- Christian v. Rowland (1968) 69 Cal.2d 108, 113 [↩]
- Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d. 114, 121; Ann M.. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th. 666, 676 [↩]
- Francis T. v. Village Green Owners Assn. (1986) 42 Cal. 3d 490 499-501 [↩]
- Ortega v. Kmart (2001) 26 Cal.4th 1200 [↩]
- Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App. 3d 135, 141 [↩]
- Putensen v. Clay Adams, Inc. (1970) 12 Cal. App. 3d 1062, 1077-1078 [↩]
- Daun v. Truax (1961) 56 Cal.2d 647, 654 [↩]
- Prichard v.Veterans Cab Co. (1965) 63 Cal.2d 727, 732 [↩]
- Li v.Yellow Cab Co. (1975) 13 Cal.3d. 804, 808 [↩]
- City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747 [↩]
- Knight v. Jewett (1992) 3 Cal.4th 296 [↩]
- Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161, 162 [↩]
- Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d 1485 [↩]
- Code of Civil Procedure § 364 [↩]
- Scott v. Rayhrer (2010) 185 Cal.App.4th 1535 [↩]
- Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968 [↩]
- Scott, supra, 185 Cal.App.4th 1542-1543 [↩]
- Evidence Code § 646(c). [↩]
- Brown v. Poway Unified School District (1993) 4 Cal.4th 820, 825-826 [↩]
- Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 995; Restatement of Torts, Products Liability, § 2 [↩]
- Cal. Civil Code § 3342 [↩]
- Rowland v. Christian (1968) 69 Cal.App. 2d. 108 [↩]
- Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App. 2d 20, 25 [↩]
- Swanberg v. O’Mectin (1984) 157 Cal.App. 3d 325, 330 [↩]
- Ortega v. Kmart (2001) 26 Cal.4th 1200 [↩]