REVIEW OF NEGLIGENCEREVIEW OF NEGLIGENCE

TORT LAWUNIVERSITY OF CALIFORNIA, DAVISPARALEGAL PROGRAM

DUTYDUTY

) SCOPE OF DUTY OWED) SCOPE OF DUTY OWED

REASONABLE CARE TO AVOID REASONABLE CARE TO AVOID INJURING ANOTHER OR THEIR INJURING ANOTHER OR THEIR PROPERTYPROPERTY

APPLIES TO REASONABLY APPLIES TO REASONABLY FORESEEABLE PERSONSFORESEEABLE PERSONS

ELEMENTS OF NEGLIGENCEELEMENTS OF NEGLIGENCE

BREACH OF THE DUTY BREACH OF THE DUTY OWEDOWED

CAUSATION (TWO CAUSATION (TWO PRONGS)PRONGS)

CAUSE IN FACTCAUSE IN FACT

and and

PROXIMATE CAUSEPROXIMATE CAUSE

FIRST PRONG: CAUSE IN FACT

ACTUAL CAUSE TEST“BUT FOR…NO INJURY WOULD HAVE OCCURRED”

SUBTANTIAL FACTOR TESTMULTIPLE PARTIES INVOLVED IN BRINGING ABOUT AN INJURY

SECOND PRONG: PROXIMATE CAUSE (aka LEGAL CAUSE)

JOINT AND SEVERAL LIABILITYMULTIPLE PARTIES ACT TOGETHER TO CAUSE INJURY

WAS THE TYPE OF INJURY REASONABLY FORESEEABLE?

DAMAGESDAMAGES

SOME INJURY TO PROPERY OR PERSON

Now, for a word from Now, for a word from our sponsor…our sponsor…

QUIZ No. 1 ANSWERSQUIZ No. 1 ANSWERS

1 – B1 – B 2 – E2 – E 3 – G3 – G 4 – A4 – A 5 – C5 – C

6 – A6 – A 7 – D7 – D 8 – D8 – D 9 – C9 – C 10 - FALSE10 - FALSE

IRACIRAC REVIEW REVIEW

ISSUE RULE ANALYSIS

CONCLUSION

BROAD CATEGORIES OF TORT BROAD CATEGORIES OF TORT LAW:LAW:•NEGLIGENCE

•INTENTIONAL TORTS

•STRICT LIABILITY

NEGLIGENCE: The failure NEGLIGENCE: The failure to exercise ordinary care.to exercise ordinary care.

SPECIAL NEGLIGENCE ACTIONS

Chapter 3

PREMISES LIABILITYPREMISES LIABILITY

What is an owner or an What is an owner or an occupier’s liability for injuries occupier’s liability for injuries that occur while a person is on that occur while a person is on their property?their property?11 TrespasserTrespasser (person wrongfully on land) = no duty, (person wrongfully on land) = no duty,

with exception for trespassing children.with exception for trespassing children.

2 LicenseeLicensee (person with express or implied permission to (person with express or implied permission to be on land) = duty of reasonable care which be on land) = duty of reasonable care which requires correcting known dangers on the land.requires correcting known dangers on the land.

3 InviteeInvitee (business guest) = duty of reasonable care which (business guest) = duty of reasonable care whichrequires repairing defects he knows or should knowrequires repairing defects he knows or should knowof and discovering/correcting unknown dangers.of and discovering/correcting unknown dangers.

STATUS EXAMPLESSTATUS EXAMPLES

You invite your friends over to You invite your friends over to watch the game – what is their watch the game – what is their status?status?– What about your duty regarding the What about your duty regarding the

open trench in your back yard?open trench in your back yard?– What about the sink hole about to What about the sink hole about to

swallow your car?swallow your car?– What about the open wiring in the What about the open wiring in the

wall?wall?

CALIFORNIA IS DIFFERENT!CALIFORNIA IS DIFFERENT!

CALIFORNIA LAW APPLIES TRADITIONAL NEGLIGENCE STANDARDS TO DETERMINE LAND OWNER/OCCUPIER LIABILITY

DISCUSSION OF ROWLAND V. CHRISTIANSEN

LEGISLATIVE REACTION - CIVIL CODE SECTION 847

CALIFORNIA CIVIL CODE CALIFORNIA CIVIL CODE SECTION 847SECTION 847

PROVIDES LAND OWNER IMMUNITY FROM LIABILITY FROM ANY PERSON COMMITTING CERTAIN LISTED FELONIES (CURRENTLY 25) (FELONY = 1 YEAR OF JAIL TIME OR MORE.) LESSOR INCLUDED OFFENSES and MISDEMEANORS ALSO PROVIDE LAND OWNER IMMUNITY.

Sampling of the list: MURDER, RAPE, ROBBERY, LEWD ACTS, ASSAULT WITH A DEADLY WEAPON, KIDNAPPING, DRUG DEALING, GRAND THEFT.

CALIFORNIA PREMISES LIABILITYCALIFORNIA PREMISES LIABILITY

FIRST – GENERAL NEGLIGENCE ANALYSIS

HOW TO ANALYZE CALIFORNIA LAND OWNER LIABILITY

SECOND – ANY DEFENSES AVAILABLE TO DEFENDANT* WAS THE PLAINTIFF COMMITTING A CRIME?

DUTY TO FORESEEABLE PERSONSBREACHCAUSATION ACTUAL CAUSE FORESEEABLE INJURYDAMAGES

STATUS EXAMPLESSTATUS EXAMPLES

Late at night, Jo Scum decides he likes the Late at night, Jo Scum decides he likes the looks of your custom and collectible 1969 looks of your custom and collectible 1969 Camaro SS, and decides to make a quick dash Camaro SS, and decides to make a quick dash across your yard, to take it for a ride, and across your yard, to take it for a ride, and maybe sell it for a quick buck. He jumps over maybe sell it for a quick buck. He jumps over your fence, lands safely, and makes his way your fence, lands safely, and makes his way quickly towards the car. Unfortunately, you’ve quickly towards the car. Unfortunately, you’ve recently trenched your yard for a new recently trenched your yard for a new sprinkler system and Jo takes a terrible sprinkler system and Jo takes a terrible tumble, breaking his femur in the process. tumble, breaking his femur in the process. Screaming in agony, he swears he’s going to Screaming in agony, he swears he’s going to sue you for everything you’ve got, explaining sue you for everything you’ve got, explaining that he knows the law. You respond to Jo….that he knows the law. You respond to Jo….

Status examplesStatus examples

Now 8 years old, little Hanna can’t hold back Now 8 years old, little Hanna can’t hold back any longer—her neighbor has just erected a lit any longer—her neighbor has just erected a lit Windmill that is painted pink and has sparkles Windmill that is painted pink and has sparkles all over. Hanna jumps over the fence and runs all over. Hanna jumps over the fence and runs over to the moving windmill. She is fascinated over to the moving windmill. She is fascinated by the lights, movements, and soft music. After by the lights, movements, and soft music. After 30 minutes, Hanna decides she needs to head 30 minutes, Hanna decides she needs to head back home, and on her way decides to take a back home, and on her way decides to take a minute or two to jump on the neighbor’s minute or two to jump on the neighbor’s trampoline. (The trampoline was not visible trampoline. (The trampoline was not visible from her original position in her own yard.) from her original position in her own yard.) Without warning, the trampoline tears and poor Without warning, the trampoline tears and poor little Hanna falls to the ground injuring herself. little Hanna falls to the ground injuring herself. Hanna’s parents wish to recover for her injuries. Hanna’s parents wish to recover for her injuries. Please advise. Please advise.

Vicarious LiabilityVicarious Liability

Where someone is held legally Where someone is held legally accountable for the negligence of accountable for the negligence of another person acting on his or another person acting on his or her behalf, even though the first her behalf, even though the first person was not involved in the person was not involved in the act, did nothing to encourage the act, did nothing to encourage the act, and may even have act, and may even have attempted to prevent it.attempted to prevent it.

Vicarious Liability of Vicarious Liability of EmployersEmployers

Respondeat SuperiorRespondeat Superior (“let the master (“let the master answer”):answer”): an employer is responsible for an employer is responsible for most harm caused by an employee most harm caused by an employee acting within the course and scope of acting within the course and scope of employmentemployment..

a)a) Coming and going ruleComing and going rule

b)b) Frolic and detour ruleFrolic and detour rule

c)c) Independent contractorsIndependent contractors

Coming and Going Coming and Going RuleRule

Employers not usually held liable Employers not usually held liable for employees traveling to and for employees traveling to and from work. Exception – if from work. Exception – if employee is performing work-employee is performing work-related activities while coming or related activities while coming or going from work.going from work.

Frolic and Detour Frolic and Detour RuleRule

An employee making a MINOR An employee making a MINOR deviation from business for deviation from business for personal purposes is still acting personal purposes is still acting within the scope of work. If the within the scope of work. If the deviation is SUBSTANTIAL, the deviation is SUBSTANTIAL, the employer is not responsible.employer is not responsible.

Independent Independent ContractorContractor

Generally, an IC is someone who Generally, an IC is someone who acts according to a contract. The acts according to a contract. The IC controls how they accomplish IC controls how they accomplish the job. Employer is not held liable the job. Employer is not held liable for IC’s negligent acts. Two broad for IC’s negligent acts. Two broad exceptions:exceptions:IC engaged in inherently dangerous activities – i.e. blasting.The duty engaged in by IC is simply nondelegable – i.e. putting up a fence around a construction site.

Motor Vehicle Vicarious Motor Vehicle Vicarious LiabilityLiability

The general rule is that an auto The general rule is that an auto owner is not vicariously liable for the owner is not vicariously liable for the tortious conduct of another person tortious conduct of another person driving their auto.driving their auto.

BUT WAIT – THERE ARE EXCEPTIONS!

Family Car DoctrineFamily Car Doctrine

What about your What about your children?children? Civil Code 1714.1Civil Code 1714.11714.1. (a) Any act of willful misconduct of a minor which results1714.1. (a) Any act of willful misconduct of a minor which resultsin injury or death to another person or in any injury to the propertyin injury or death to another person or in any injury to the propertyof another shall be imputed to the parent or guardian having of another shall be imputed to the parent or guardian having

custodycustodyand control of the minor for all purposes of civil damages, and theand control of the minor for all purposes of civil damages, and theparent or guardian having custody and control shall be jointly andparent or guardian having custody and control shall be jointly andseverally liable with the minor for any damages resulting from theseverally liable with the minor for any damages resulting from thewillful misconduct.willful misconduct.Subject to the provisions of subdivision (c), the joint andSubject to the provisions of subdivision (c), the joint andseveral liability of the parent or guardian having custody andseveral liability of the parent or guardian having custody andcontrol of a minor under this subdivision shall not exceedcontrol of a minor under this subdivision shall not exceedtwenty-five thousand dollars ($25,000) for each tort of the minor,twenty-five thousand dollars ($25,000) for each tort of the minor,and in the case of injury to a person, imputed liability shall beand in the case of injury to a person, imputed liability shall befurther limited to medical, dental and hospital expenses incurred byfurther limited to medical, dental and hospital expenses incurred bythe injured person, not to exceed twenty-five thousand dollarsthe injured person, not to exceed twenty-five thousand dollars($25,000). The liability imposed by this section is in addition to($25,000). The liability imposed by this section is in addition toany liability now imposed by law.any liability now imposed by law.

NEGLIGENT INFLICTION OF NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS EMOTIONAL DISTRESS

(“NIED”)(“NIED”)

(1)Outrageous conduct by the defendant

(2)that the defendant should have anticipated

would produce (3)significant and reasonably foreseeable emotional injuries to a victim,

(4) thus, breaching a duty of reasonable care

to avoid causing such emotional harm to, (5) a reasonably foreseeable victim.

CALIFORNIA IS CALIFORNIA IS DIFFERENT!DIFFERENT!

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

The elements of a claim of negligent infliction of emotional distress are:

1. The defendant engaged in negligent conduct or a willful violation of a statutory standard;

2. The plaintiff suffered serious emotional distress;

3. The defendant's negligent conduct or willful violation of statutory standards was a cause of the serious emotional distress.

*Serious emotional distress = an emotional reaction which is not an abnormal response to the circumstances. It is found where a reasonable person would be unable to cope with the mental distress caused by the circumstances.

CAUSES OF NERVOUS SHOCK A shock to the nervous system may be caused either by some physical impact or by fright caused by exposure to imminent peril.

CALIFORNIA NIED CONTINUED…

CALIFORNIA REQUIRES THAT A BYSTANDER BE RELATED TO THE INJURED PARTY TO RECOVER FOR EMOTIONAL DISTRESS. DILLON v. LEGG, 68 Cal.2d 728

CALIFORNIA LAW STRESSES THE FORESEEABILITY ASPECT OF NEGLIGENT ACTS.

NEGLIGENCE PER SENEGLIGENCE PER SE

Behavior or conduct that is presumed negligent as a matter of law because it violated a statute or ordinance.

DEFENSES TO DEFENSES TO NEGLIGENCENEGLIGENCE

1.1. Contributory Negligence - At common law = Contributory Negligence - At common law = defendant out of luck, modern view favors defendant out of luck, modern view favors comparative analysis.comparative analysis.

2. Last Clear Chance - Essentially Plaintiff’s rebuttal to the defense of contributory negligence

4. COMPARATIVE NEGLIGENCE - Apportionment of fault – offsets ones own negligence against another

3. ASSUMPTION OF RISK 1 – Voluntary assumption of a known risk 2 – A full appreciation of the danger involved in facing the risk

5. STATUTE OF LIMITATIONS

Assumption of Risk…Assumption of Risk…

Where plaintiff is Where plaintiff is subjectively aware ofsubjectively aware of, , (has actual knowledge of, in fact) and (has actual knowledge of, in fact) and fully appreciatesfully appreciates, the particular risk that , the particular risk that caused his injury, and caused his injury, and has voluntarily has voluntarily chosen to encounter that riskchosen to encounter that risk, he is not , he is not entitled to recover for defendant’s entitled to recover for defendant’s alleged negligence (breach of duty)…alleged negligence (breach of duty)…

Assumption of RiskAssumption of Risk

Illustrations: Illustrations: While skiing, Ron Risky shouts out to his friends, While skiing, Ron Risky shouts out to his friends,

“HEY, watch how close I come to the tree “HEY, watch how close I come to the tree when I hit that big jump!!!” …when I hit that big jump!!!” …

Rock climbing guru Mr. Grapple cautiously Rock climbing guru Mr. Grapple cautiously inched his way across the ledge some 40 feet inched his way across the ledge some 40 feet above the ground…above the ground…

John Jumper carefully packed his parachute…John Jumper carefully packed his parachute…

Enjoying the American River…Enjoying the American River…

NEXT WEEK – NEXT WEEK –

INTENTIONAL TORTS!INTENTIONAL TORTS!