California Torts

Top 4 Supplements for 1L Torts:

We need to consider two factors in Tort Liability


The Professional

  • CA Statute: imposes a locality rule for Drs who provide emergency room services in a general acute care hospital. Also expert testimony only admitted from surgeons with substantial medical training.
  • Informed consent: CA uses reasonable prudent person standard
  • An objective test is preferable: i.e., what would a prudent person in the patient’s position have decided if adequately informed of all significant perils?
  • Cause of action for informed consent has three elements, all of which must be proved by the P:
    • The P must prove that the Dr had a duty to disclose
    • The P must prove causation. That is, the P must prove that had the Dr properly informed the P, the P would not have undergone the surgery. Reasonable person standard used to decide
    • The P has to prove that he suffered actual injury as a result of the treatment

Aggravated Negligence

  • CA Civil Code: common carriers must use utmost care & diligence for safe carriage, must exercise everything for that purpose & use reasonable skill. Ex: taxi drives

Negligence Per Se

Effect of Violation of a Statute

  • Rebuttable presumption: violation of an applicable statute creates a presumption of negligence. This presumption shifts the ultimate burden of proof to the D, who has violated the statute.
    • Overcome only by positive & unequivocal evidence of reasonable excuse or justification
    • Allows person accused of violation of a statute to offer justifications for his violation

Res Ipsa Loquitur

  • Rebuttable presumption: When RIL imposed, the production burden shifts to the D but P still has ultimate burden
  • Rebuttable presumption becomes conclusive unless other evidence is offered by the D
  • Jury must find accident resulted from D’s negligence unless D produces alternative evidence

Causation of Fact

Joint & Several Liability: in any negligence case, where the cause in fact is being considered, CA uses the substantial factor test

Duty of Care

Failure to Act

  • Good Samaritan Statute: Helping someone, not liable if you make it worse. The immunity does not apply in events of willful and wanton misconduct or omissions (recklessness)
  • Psychotherapists: Immune from liability to warn except where the patient has communicated to the psychotherapist a serious threat of physical violence against a reasonable identifiable victim.
    • To impose a duty to act:
      • Patient must communicate a threat to the therapist
      • It must be a serious threat]Against reasonable identifiable victim(s)

Wrongful Death & Survival Statutes

  • Emotional Distress: A D can be held liable for negligence to a direct victim for distress when reasonable foreseeable disturbance
    • Has to be a DIRECT VICTIM, not indirect victim like a witness (unless Thing standards met)
    • Don’t have to establish principles of Thing when direct victim
    • Mental distress alone is sufficient for a direct victim to be able to recover
    • Allows recovery if the P and the victim are closely related, P was present at the scene, P was aware of the injury, and P suffers serious emotional distress
  • Wrongful Death Action: The purpose of wrongful death statutes is to enable the beneficiaries to recover for economic loss and for consortium of the deceased.
  • Survival Action: Preserves the cause of action that the deceased had hat the moment of his death
    • When a D dies, no punitive damages are awarded against him in the survival action
    • When a P dies, the punitive damages that would have been awardable against a living P are still awardable but not the damages for the P’s pain and suffering
  • Unborn Children: Ca was one of the first states to recognize a cause of injury when a fetus was born alive but injured, however, CA denies recovery for an unborn child

Owners & Occupiers of Land

  • Rejection or Merging of Categories: CA rejects the common law categories of invitee, licensee, and trespasser as a measure of the landowner’s duty to others
  • Instead, where a dangerous condition is concealed, and the owner is aware of it, the owner must either repair the condition or warn others of the danger. This should be the rule regardless of the status of the individual. (Treat everyone more or less like a licensee or invitee)


  • Punitive Damages Awardable for Negligence if D Acted with Malice: Conduct which is intended by the D to cause injury to the P or despicable conduct which is carried on by the D with a willful and conscious disregard of the rights or safety of others.


Comparative Negligence

  • Pure: CA uses the pure comparative negligence model. The P may recover damages which are reduced based on the P’s percentage of negligence. Thus, P’s recovery is strictly proportional to the percentage of negligence regardless of how big or small this percentage may be.
  • CA Prop 51: P’s rights against multiple D’s in CA:
  • 1431.1: Joint Liability
    • An obligation imposed upon several persons, or a right created in favor of several persons, is presumed to be joint, and not several, except in 1431.2 and except in the special cases mentioned in the title on the interpretation of contracts. This presumption, in the case of a right, can be overcome only by express words to the contrary.
  • 1431.2: Several Liability for Non-Economic Damages
    • In any action for person injury, property damage, or wrongful death, based upon principles of comparative fault, the liability of each D for non-economic damages shall be several only and shall not be joint. Each D shall be liable only for the amount of non-economic damages allocated to that D in direct proportion to that D’s percentage of fault, and a separate judgment shall be rendered against the D for that amount.
  • Rights of Ds in CA: Second Reform uses comparative contribution for P’s recovery from multiple Ds
  • BUT, in CA: THE PROBLEM: The CA Code of Civil Procedure specifically provides that no D shall be compelled to make a contribution beyond his own pro-rata share of the entire judgment. In essence, this statute does not allow for a comparative contribution judgment.
  • THE SOLUTION: In American Motorcycles Ass’n, the CA SC modified the common law doctrine of equitable indemnity, creating a right to partial equitable indemnity. In other words, comparative contribution was achieved by calling it partial equitable indemnity (pretty much the same thing)

Implied Assumption of Risk

  • Elimination of the separate categories of AoR for unreasonable assumption of risk and contributory negligence and instead just uses comparative negligence and then deals with other cases of a reasonable assumption of risk as separate

Statute of Limitations & Repose

  • CA medical malpractice: Action for injury or death against a health care provider for negligence, time for commencement of action is three years after date of injury and one year after P discovers injury or should have discovered it through reasonable, due diligence
  • CA Attorney Malpractice: One year period from actual or constructive discovery of wrongful act or four year from the date of the wrongful act or omission
  • Intentional & Negligence Torts: Assault, battery & injury or death from wrongful act or neglect is a two years statute of limitations
    • All other torts are one year


  • Governmental Immunity: Gov is liable for torts of employees committed during course of employment.
    • Gov immunity is a jurisdictional issue so it can be raised at any time during the case, even during appeal
    • Not like an affirmative defense that must be pleaded & proved, this is a jurisdictional issue
    • BUT, has retained immunity for intentional misconduct

Products Defects

Design Defect

  • CA Defective Product Design Rule: Risk Benefit Test Standard: A product is defective if either:
    • Consumer Expectation Test: the product has failed to perform as safely as ordinary consumers would expect when used in an intended or reasonable foreseeable manner
      • First answer this test then see if you need to proceed to the next
    • Risk Utility Test: weighing of the benefits of the challenged design against the risk of danger inherent in such design
  • Burden of proof is shifted to the D since CA is still a strict liability system.
  • CA holds that the P does not have the burden of proving that a reasonable alternative design was available
  • Failure to Warn Cases: CA equates state of the art with the risk utility test. Manufacturers are not required to warn of defects that are not scientifically known or knowable when distributing products 

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