A person or entity owes a duty of care to an individual when engaging in certain activities that if not performed with ordinary care could result in harm.

When such persons or entities breach or violate that duty of care, then they have committed negligence and the victim may have a cause of action for any harm or damages that result. 

The four types of negligence which can result in compensation include:

  • Negligence Per Se
  • Negligent infliction of emotional distress
  • Negligent hiring or supervision or employees, or
  • Negligent entrustment of a motor vehicle

Legal Definition Of Negligence

There are certain elements to a negligence cause of action that a claimant or victim must prove by the standard of preponderance of the evidence.

checklist

What Does Preponderance Of The Evidence Mean?

This generally means that your proof must convince the trier-of-fact that your evidence more than likely proves each element of the cause of action.

What Must Be Proved In A Negligence Cause Of Action?

The elements of negligence are:

1 The defendant owed a duty of care to the plaintiff

2 The defendant breached the duty of care.

3 The breach was the proximate or legal cause of the plaintiff’s injuries.

4 The plaintiff suffered injuries or damages.

What Does Owing A Duty Of Care To The Plantiff Mean?

Whether a defendant owes a duty of care is a determination to be made by the court.

In most situations, a person has a duty to act as a reasonable person would act or to use the same amount of reasonable care that a person in similar circumstances would use. 

Responsibility

There are varying standards of care depending on the status of the person or relationship to the person to whom he/she owes the duty of care.

Example Of Duty Of Care

  • otorists owe a duty to other motorists, passengers, pedestrians and anyone else on the roadways to exercise ordinary care when driving, which means using caution and obeying the traffic laws.
  • A physician has a duty to a patient to use that degree of skill, care and diligence that is expected of a reasonably competent physician under the same or similar conditions or circumstances.
  • A landowner has a duty to safely maintain his/her premises and to keep it free of hazards or to warn those on the property of hazards.

What Other Situations Require A Duty Of Care?

There are also some instances when a person has a special relationship to another person, such as a teacher, police officer, caregiver or person who owes a fiduciary duty.

In such cases, the person may have an affirmative duty to protect that person from foreseeable harm or to come to the aid or assistance of a person who is facing imminent harm or medical emergency1.

What Happens If The Duty Of Care Is Breached Or Violated?

When a person or entity fails to live up to the standard of care that that particular person was obligated to follow, then that duty has been breached or violated.

How Does A Court Determine If A Breach Has Occured?

In determining whether a breach has occurred, the trier-of-fact will look at certain factors

  • Whether the risk of harm was foreseeable to the defendant or should have been foreseeable
  • Whether there were reasonable alternatives that could have prevented the harm
  • What was the burden of using a safer alternative and was it heavier than the risk involved in not using it

Do You Have To Prove A Breach Of Duty Of Care Occured?

In some cases, you may not have to prove that the defendant breached his duty of care. In these cases, a breach is presumed or inferred since the injury would not otherwise have occurred unless someone other than the plaintiff failed to act with reasonable care.

The concept in these cases is “res ipsa loquitur.” Whether the harm was foreseeable is not questioned because of the close link between duty and breach.

What Is An Example Of This Concept?

An example is a surgeon who leaves a surgical instrument inside a patient’s body cavity that leads to severe infection.

This is an act that the plaintiff could not have performed and which was within the exclusive control of the defendant surgeon.

Another instance of when a breach of duty is inferred is the legal doctrine of strict liability.

What Is Strict Liability?

In these cases, a person who owns or controls the instrument of the harm is liable if an injury occurs, no matter how much care the defendant used to prevent it. 

A plaintiff has the burden of proving that the defendant’s breach was the cause of the accident and that the defendant’s act was the proximate cause.

Example Of Proximate Cause

If someone throws a large bundle from a freeway overpass that lands on a motorist’s windshield and causes the driver to lose control and collide with the plaintiff’s car, the motorist’s loss of control was the cause of the accident. However, it was not the proximate or legal cause since a third party’s act led to the driver’s loss of control and subsequent accident.

The idea of proximate cause forces the plaintiff to show that his injuries were the direct and natural consequences of the proximate cause or the injuries could not have occurred.

Proximate cause has to do with foreseeability.

A COURT WILL LOOK AT THE FOLLOWING TO DETERMINE THIS CONCEPT:

  • As any part of the type of harm foreseeable? Was the harm that occurred foreseeable as a result of the direct consequences of the defendant’s act?
  • Was the manner of harm foreseeable? Was it foreseeable that the plaintiff would have sustained this type of injury?
  • Was the extent of the injury foreseeable? However, there is also the principle that you take the plaintiff as he or she is. If the injured person had a weakened condition such as a fragile hip and the accident caused a broken hip that an otherwise healthy person would likely not have sustained, the extent of the preexisting condition is not relevant to the amount of damages.
  • Was the plaintiff within the class of persons the defendant should have foreseen would be injured by his act?

California uses the “substantial factor” test in proximate cause determinations. If the act was a substantial factor in causing the accident and injuries, then there is proximate cause2. Conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct3.

Damages

If the accident caused injury or some other type of loss, then you have to prove that your damages were the result of the accident and that your lost earnings, medical expenses or other economic losses were reasonable. You prove an injury by providing medical records and reports, bills, photographs of your injuries or by testimony from a doctor, family member, friend or yourself.

You are also entitled to monetary compensation for non-economic losses such as pain and suffering, emotional trauma, permanent disability or disfigurement.

Defenses To Negligence

Even if the elements of negligence has been apparently proven by the plaintiff, there are a number of defenses that can limit the defendant’s liability or circumvent fault all together. 

Comparative Fault

Within the definition of negligence is a section regarding your own responsibility to be safe and to avoid bringing injury onto yourself. In California, there is the defense of comparative negligence where a plaintiff’s own degree of causal responsibility for the accident is considered in decreasing the compensation to be paid by the defendant.

California is a “pure” comparative negligence state so that you can still recover compensation from the defendant so long as he or she was at least 1% at fault. If your damages are $100,000 but the trier-of-fact determines you to be 60% at fault, then your recovery would be reduced to $40,000 from the defendant.

Assumption of Risk

There are some activities where the risk of harm or injury is obvious. This would include playing tackle football, skiing, race car driving, or driving in a demolition derby event. In these activities, you are voluntarily assuming the risk of injury that is inherent in this type of activity.

For example, if you play football then you know or should know that the sport requires violent contact. If you sustain a concussion or a broken leg, you assumed the high risk or chance that being tackled or blocked would result in this type of injury.

In these cases, the defendant, who may be the person who tackled you or the coach who trained the person how to tackle, has no duty of care to the injured plaintiff4. In the context of skiing, the resort has no duty to take all measures to prevent you from harm other than maintaining the slopes and premises in a safe condition and to be free from certain hazards. If you are a novice skier and chose to ski down a marked expert trail and broke your leg, you assumed a high risk of injury. 

Primary Assumption of Risk

In California, assumption of the risk has two forms–primary and secondary. Primary assumption will relieve a defendant of liability if the activity has inherent risks of harm. This would include most sporting activities. For instance, a batter risks being struck by a pitch that could break the person’s wrist or cause a head or face injury. Golfers assume the risk of being stuck by errant golf balls. It is only if the defendant intentionally injured the victim or engaged in conduct that is “so reckless that as to be totally outside the range of ordinary activity involved in the sport” that liability might be imposed5.

But assumption of the risk can also include attendance at a sporting event such as a baseball game where you risk being struck by a foul ball. A defendant, however, cannot increase the inherent risks in an activity or he/she will be held liable. For instance, a ski resort operator who though unintentionally allowed a snow boarder to rent a board without a strap retention in violation of the resort rules increased the danger that the board would be used by participants. This constituted conduct not inherent in the sport which increased the risk of injury6.

Secondary Assumption of Risk

Secondary assumption of the risk does not insulate the defendant from liability. In these situations, there is no inherent risk involved in the activity that led to the injury. An example is where you are told by the defendant that the used car you are buying from him has faulty steering and that you should not buy it.

Regardless of the warning, you buy it anyway and on the way out of the used car lot, the steering wheel falls off and you collide with a pole, injuring yourself. Although you assumed the known risk of driving a car with faulty steering, the used car dealer had a duty to you to exercise reasonable care in not harming you , which meant in this case to refuse to sell the car to you. In this case ,the trier-of-fact would use comparative negligence principles in apportioning liability to each party.

Statute of Limitations

For any civil case, there are time limits on when you can bring a particular cause of action. For negligence cases in California with personal injury, you must file a lawsuit in the appropriate court within 2-years of when the negligent act occurred7. If you do not, then the defendant will assert that the statute of limitations bars you from asserting negligence as a cause of action that arose from that accident.

There are some exceptions. If you are minor when the accident occurred, then the statute of limitations is tolled, or suspended, until you reach the age of 18. You then have 2 additional years to bring the action to court. Should you be incarcerated when the negligent act occurred, you also have an additional 2-years to file once you are released8.

Negligence Per Se

Negligence is a legal principle whereby negligence is presumed if it involves violation of a statute. If so, then the plaintiff need only prove damages. An example is that of a motorist who violates a traffic regulation and causes an injury. 

In a criminal context, you have committed an illegal act per se by driving with a blood alcohol concentration level of 0.08%9. By violating this statue and harming someone in a car accident that you caused, you can be found negligent per se and be liable for any economic and non-economic damages suffered by the victim. 

A court will consider the following factors in determining if negligence per se can be asserted by the plaintiff:

  • Did the defendant violate a statute?
  • Was the statute designed to protect a certain class of persons from harm?
  • Was the plaintiff within this class of persons?
  • Did the actions of the defendant cause the type of injury the statute was designed to protect the plaintiff against?

A breach of a criminal statute by a defendant that causes injury to another person may be sufficient to satisfy the elements of duty and breach. If a defendant robs you and you suffer a heart attack, you can bring a civil claim against the defendant that might include damages for emotional distress as well as for medical expenses, wage loss, and pain and suffering that results as a direct result. 

Another example is in a truck accident where a statute or regulation expressly limits the weight of a load that this truck may carry. A load that exceeds the statutory amount falls off the truck and injures a passing motorist. The truck driver violated the statute by hauling a load that was too heavy and not permitted by statute so that the injured motorist can assert negligence per se. No other evidence is required to show negligence on the part of the truck driver or trucking company. 

Strict liability is similar to negligence per se in that liability is imposed on defendants who engage in abnormally dangerous activities or on manufacturers whose products are shown to be unreasonably dangerous. By statute, a dog owner whose dog bites or attacks someone is held strictly liable for any injuries sustained by the victim. All the victim need demonstrate is that the dog belonged to the defendant and that he or she was bitten or attacked.

Defenses to Negligence Per Se

You have a defense against a negligence per se claim if you can show that the injury or harm you suffered was not part of what the statute that was violated was intended to prevent. Suppose a housing contractor violates a building code section that was intended to prevent the house from collapsing because he used defective or degraded materials.

The harm that the statue was intended to prevent were injuries caused by a collapsing structure. However, if the plaintiff only suffered lung and other injuries from mold in the house and not from the defective materials that caused the house collapse, then the contractor cannot be said to be negligent per se since the harm being claimed was not the type that this statute was intended to prevent. 

Other defenses include:

  • It would be more dangerous for the defendant to comply with the statute
  • It is not possible to comply with the statute
  • The plaintiff was comparatively negligent in causing his/her own injuries

There is also the related “defense of necessity” whereby you are in a situation where you are permitted to violate a criminal statute in order to prevent sustaining serious harm to yourself or others and there was no adequate means or lawful manner to escape the harm. A classic example is that of a defendant who does not have a valid driver’s license but drives a seriously injured person to the ER since no cell phone was available, no one was present to drive the person, and the injured person would have died unless immediate medical care was provided. 

Comparative negligence can limit or decrease the degree of liability by a defendant. All persons have a duty to themselves to exercise ordinary care when engaging in certain activities. If you are in a parking lot that is iced over but chose to walk on it anyway and slipped and fell, you may assert that the lot owner violated a statute requiring him to remove ice after a certain time, but the owner can also claim you were comparatively at fault for walking on ice that you knew was present and carried a high risk or potential that you could slip and fall. 

Negligent Infliction of Emotional Distress

In many instances where a person is injured, the trauma of the event causes them to experience emotional distress. This includes:

  • Fright 
  • Horror 
  • Nervousness 
  • Anxiety
  • Shock
  • Humiliation

Negligent infliction of emotional distress is not a separate cause of action from negligence but a category of damages. There is no requirement that you have suffered any physical injury as a condition for claiming this subset of damages10.

Can Bystanders Claim Negligent Infliction of Emotional Distress?

There is the requirement that the defendant have owed a duty to the plaintiff before claiming such damages. If you were a motorist injured by the negligence of the defendant driver, the defendant owed a duty of care to you since you are a direct victim. If you were not the one who suffered direct physical harm, there are limited circumstances in which you can assert a claim of emotional distress as a “direct victim.”

For instance, a bystander who witnesses a violent collision that killed a motorist might claim emotional distress and assert a claim against the motorist who caused the accident. However, that person is not a “direct victim” and the defendant motorist owes no duty of care to that individual11.

However, you may assert a claim for negligent infliction of emotional distress as a bystander so long as the following criteria is met:

  • The person injured was a close relative of yours
  • The defendant negligently caused the accident to your close relative
  • As a bystander, you were present at the time of the accident and aware that your close relative was being injured
  • You suffered severe emotional distress, which is more than what a disinterested person would have suffered12

Close relatives include spouses, siblings, children, parents or grandparents. It does not include unmarried persons, regardless of how close or intimate their relationship.

However, you need not actually have witnessed the accident that injured your close relative so long as you “personally and contemporaneously perceived the injury producing event and its traumatic consequences”13. You cannot claim damages if someone else told you about the event and then you arrived on the scene shortly afterwards.

But if you were in very close proximity to the event such as in the same car, house, or just a few feet or yards away, you can still qualify since your presence was contemporaneous to the event even if you did not directly observe it. 

Factual Situations of Other “Direct Victims”

California courts only recognize three situations in which you can claim negligent infliction of emotional distress even if you were not directly harmed, though you are still considered a “direct victim” and not just a bystander. These are:

  • Negligent mishandling of corpses14
  • Negligent misdiagnosis of a disease that could potentially harm another15
  • Negligent breach of a duty arising out of a preexisting relationship16.

These situations cover circumstances where a hospital owed a duty of care to a husband of a patient who had been incorrectly diagnosed with a disease and the husband told to get testing and treatment. The risk of harm to the husband in that case was reasonably foreseeable and the “alleged tortious conduct was directed toward him as well as to his wife”17.

The California court in Burgess also found liability for a duty arising out of preexisting relationship, such as that between a physician and a pregnant woman whose child was injured by the negligence of the physician during delivery.

To recover damages of any substantial amount, your distress must generally be more than just occasional distress or anxiety, although there is no requirement that your distress be significant. It only must be more than what a disinterested party would have experienced. Most symptoms consist of:

  • Flashbacks
  • Nightmares
  • Easily irritated or brought to anger
  • Depression
  • Difficulty sleeping
  • Difficulty performing your jo

Negligent Hiring, Supervision or Retention of Employees

Under some circumstances, an employer can be held liable for the intentional and reckless acts of an employee who harms another person so long as the employer was aware of, or should have been aware of, the risks that that employee posed to others18.

criminal background check

An example is a trucking company hiring a driver with a record of several assault convictions who sexually assaults another employee or a customer while engaged in the course of employment. 

The 5 elements of this cause of action are:

1 The defendant employer hired this employee

2 That employee was or became unfit or incompetent to perform the work for which the worker was hired

3 The employer knew or should have known that the employee was or became unfit or incompetent and that his/her unfitness or incompetence created a particular risk to others

4 The employee’s unfitness or incompetence harmed the plaintiff

5 The employer’s negligence in hiring, supervising, or retaining the employee was a substantial factor in causing harm to the plaintiff

This imposes a duty on an employer to conduct reasonable background checks although the employer must take care to not make inquiries that are against the law. If the employee has a history of certain misconduct (rape, sexual abuse of a minor, domestic violence, assault with a deadly weapon) that would have shown up in a background check, then the employer could be liable to a victim who suffered injuries while the employee was engaged in an employment activity. 

This is a separate tort allegation and is not considered vicarious liability19. However, an employer might be held vicariously liable for the tortious acts of its employees and be held directly liable for negligently hiring, supervising or retaining that employee.

Who is an Employee?

For the purposes of asserting this cause of action, an employee includes:

  • Temporary workers
  • Independent contractors
  • Agents
  • Per diem overflow workers
  • Security guards

A school district can be held responsible for the conduct of its teachers or administrators and must exercise care in keeping students safe from foreseeable injuries caused by its employees or from third parties. 

Once an employer via a supervisor or Human Resources department becomes aware of an employee’s unlawful conduct, such as sexually harassing others, it must take reasonable steps to prevent further misconduct. If complaints are ignored, then the employer can become directly liable for any damages sustained by a subsequent victim.  

Negligent Entrustment of a Motor Vehicle

If you were injured in a motor vehicle by the negligence of another motorist, there is a chance that that motorist was negligently entrusted to drive that car by a third party. A vehicle owner who allows someone whom he knows or in the exercise of reasonable care should have known was incompetent, reckless or too inexperienced to drive may be liable for any resulting injuries caused by that driver.

Negligent entrustment is a separate tort with separate damages. It has 5 elements:

1 The entrusted motorist was negligent in operating the vehicle and caused an accident

2 The defendant was the owner of the vehicle

3 The defendant knew or should have known that that entrusted motorist was unfit to operate the vehicle

4 The defendant nonetheless allowed the entrusted motorist to drive the vehicle

5 The entrusted motorist’s incompetence in operating the vehicle was a substantial factor in causing the accident or harm to the plaintiff

Incompetence or unfitness to drive includes the following circumstances:

  • Under the influence of alcohol or drugs
  • Lack of training or sufficient experience to operate this particular vehicle20
  • Lack of a license
  • Under age to drive21
  • Had a suspended or revoked license
  • A medical condition that made it dangerous to drive

Rental companies, or any private persons, are obligated to examine the driver’s license of any person to whom they are leasing a vehicle to ensure that that person has a valid driver’s license and has either compared the signature of that person to that on the license or the photograph to the person whom the vehicle is to be leased22.

An owner is held liable so long as the driver’s s incompetence, inexperience, or unfitness to drive was the proximate cause of the accident. An owner may not be held liable for negligent entrustment merely because the driver had a suspended license. There must also be evidence that the driver lacked experience or the capability to operate the vehicle and that the owner either was aware of that or failed to exercise reasonable diligence or care in discovering it23. In other words, there must be facts putting the owner on notice that the driver was incompetent or unfit to driver24.

Selling Your Car

Should you sell a car to an unlicensed driver, this does not automatically impose liability on  you as negligence per se25. The burden is on the plaintiff to prove that you knowingly sold the car to the unlicensed person or at least should have known that in the exercise of ordinary care. This is an issue of fact. Similarly, it is not negligence per se if you entrusted a vehicle to a drunk person unless it is proved that you knew of that person’s intoxicated state when you entrusted the vehicle to him or her26.

Negligent entrustment does not impose vicarious liability on an employer since it is a separate tort27. Under vicarious liability principles, the employer would step into the shoes of the negligent employee and not be liable for separate damages. Under the theory of respondeat superior, the employer cannot have any greater fault than its negligent employee acting in the scope of his employment28. For instance, if the damages caused by the employee and which are attributable to the accident are $100,000, then the employer by way of vicarious liability is responsible for that amount only and not for any additional damages.

Permissive Use

A related aspect of negligent entrustment is an accident based on “permissive use” where the owner gave express or implied permission to the driver to operate a vehicle and whose negligence then caused harm to the plaintiff. In this situation, the owner’s financial culpability is limited to $15,000 for the injury or death of one person and $30,000 for the injuries or deaths of more than one person in the same accident29.

This does not include circumstances where the owner was the employer of the driver or in any other relationship of agent and principal. Under negligent entrustment of a motor vehicle, there is no statutory limit on financial responsibility or on the vicarious liability of an employer. 

An owner who validly transfers the sale of a vehicle is not statutorily liable for any injuries proximately caused by the new owner/driver’s incompetence or unfitness to drive that vehicle under the permissive use statute30. To escape liability, however, the owner must satisfy the following:

  • He/she properly endorsed the certificate of title
  • He/she delivered the certificate to the transferee

Proper endorsement means to sign and date the certificate31. Delivery is the actual change of possession to the transferee by the delivery of the registration card as required by CVC § 560232.

The concept and laws of negligence are varied and complex. If you were the victim of a negligent act, promptly seek advice from an experienced negligence attorney or you could risk losing substantial compensation. 

Footnotes

  1. Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 883 [↩]
  2. Wilson v. Blue Cross of So. Cal. (1990) 222 Cal.App.3d 660, 671-672 [↩]
  3. Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187 [↩]
  4. Knight v. Jewett (1992) 3 Cal.App.4th 296, 320; Connelly v. Mammoth Mountain Ski Area (1995) 39 Cal.App.4th 8,11 [↩]
  5. Shin v. Ahn (2007) 42 Cal. App.4th 482, 497 [↩]
  6. Campbell v. Derylo (1999) 75 Cal.App.4th 823, 829 [↩]
  7. Code of Civil Procedure § 335.1 [↩]
  8. Code of Civil Procedure § 351.1 [↩]
  9. VC § 23152 (b). [↩]
  10. Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 928 [↩]
  11. Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 205 [↩]
  12. Dillon v. Legg (1968) 68 Cal.2d 729 [↩]
  13. Wilks v. Hom (1992) 2 Cal.App.4th 1264, 1274 [↩]
  14. Christiansen v. Superior Court (1991) 54 Cal.3d 868, 879 [↩]
  15. Molien, supra [↩]
  16. Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1076 [↩]
  17. Molien, supra, 2 Cal.3d at pp. 922-923 [↩]
  18. Doe v. Capital Cities (1996) 50 Cal.App. 4th 1038, 1054 [↩]
  19. Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App. 4th 790, 815 [↩]
  20. Vehicle Code § 14606(a). [↩]
  21. VC § 14607 [↩]
  22. VC § 14608(a). [↩]
  23. Dodge Center v. Superior Court (1988) 199 Cal.App.3d 332, 341 [↩]
  24. Richards v. Stanley (1954) 43 Cal.App. 60, 63 [↩]
  25. Perez v. G & W Chevrolet, Inc. (1969) 274 Cal,App.2d 766, 768 [↩]
  26. Blake v. Moore (1984) 162 Cal.App.3d 700, 706 [↩]
  27. Allen v. Toledo (1980) 109 Cal.App.3d 415, 419-420 [↩]
  28. Diaz v.Carcamo (2011) 51 Cal.4th 1148, 1157 [↩]
  29. CVC § 17151(a). [↩]
  30. CVC § 5602 [↩]
  31. Laureano v. Christensen (1971) 18 Cal. App.3d 515, 521 [↩]
  32. Brennan v. Gordon Ball (1985) 163 Cal.App.3d 832, 837-838 [↩]

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