Negligence is either the failure to do something that an ordinarily
prudent person would do under given circumstances or the doing
of something that an ordinarily prudent person would not do
under those circumstances. Any action based on negligence involves
a violation of a legal duty, imposed by statute, contract, or
otherwise, owed by the defendant to the person injured. Thus,
to support a finding of negligence by the court, a plaintiff
must show that the defendant owed a duty to the plaintiff to
use care, that he or she breached that duty, and that the breach
was the actual cause of the resulting injury.
Duty: There are two general types of duty
imposed by law. First, everyone has a duty to use ordinary care
in conducting activities from which harm might reasonably be
anticipated. California Civ. Code §1714(a), which provides
that 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 other
person has, willfully or by want of ordinary care, brought the
injury upon himself or herself. Liability for negligent conduct
is, therefore, the rule, to which no exception is made unless
clearly supported by public policy considerations.
In addition to the general duty to use ordinary care, a person
may have a duty to act affirmatively to warn or protect others
or to control the conduct of others, if a special relationship
exists between the actor and either the person to be controlled
or the person who needs protection.
To determine in a given case whether the defendant owes a duty
of care to the plaintiff, the court must consider several factors,
including the foreseeability of harm to the injured party, the
degree of certainty that the injured party suffered injury,
the closeness of the connection between the defendant’s
conduct and the injury suffered, the moral blame attached to
the defendant, the policy of preventing future harm, the extent
of the burden to the defendant and the consequences to the community
of imposing a duty on the defendant to exercise care with its
resulting liability for breach, and the availability, cost,
and custom of obtaining insurance for the risk involved.
The most important of these considerations in establishing
duty is foreseeability. As a general principle, a defendant
owes a duty of care to all persons who are foreseeably endangered
by his or her conduct, with respect to all risks which make
that conduct unreasonably dangerous.
Breach Of Duty: After establishing the existence
of a duty of care owed by the defendant, a plaintiff, to support
a claim of negligence, must show that the defendant breached
that duty. The breach of the general duty to act reasonably
consists of conduct falling below the standard of ordinary care
or skill in the management of person or property. [Civ. Code
Ordinary care is that degree of care which people of ordinarily
prudent behavior can be reasonably expected to exercise under
the circumstances of a given case. In other words, the care
required must be in proportion to the danger to be avoided and
the consequences that might reasonably be anticipated.
The duty to act reasonably varies with changing circumstances.
In general, the standard of care is measured objectively.
Causation: For an act or omission to be the
legal cause of an injury, it first must be the cause in fact
of the injury. Finding cause in fact, or actual cause, requires
a common sense determination as to whether the defendant’s
conduct brought about or contributed in some way to the plaintiff’s
injury. The "but for" rule of causation, which
defines actual cause, implies that the defendant’s conduct
is the cause of an event if "but for" the defendant’s
conduct, the event would not have occurred Stated another way,
if the plaintiff would have sustained the injury anyway, regardless
of whether the defendant was negligent, then the defendant’s
negligence was not an actual cause of the plaintiff’s
The "but for" rule of causation is adequate for most
situations, but it fails where liability would be avoided because
a defendant’s act or omission concurred with another cause
and either cause alone would have been sufficient to bring about
the injurious event. However, in those situations involving
concurrent causes, one cannot escape responsibility for his
or her negligence on the ground that identical harm would have
occurred without it. The proper rule for those situations is
that the defendant’s conduct is a cause of the event because
it is a material element and a "substantial factor"
in bringing it about.
The doctrine of "proximate cause" provides
a limitation on liability. Even where a defendant’s conduct
is an actual cause of a plaintiff’s injury, the defendant
may be held not liable because of the manner in which the injury
occurred. The most common circumstance in which a defendant
may escape liability because of a lack of proximate causation
is when, after the defendant’s act, an independent intervening
act that is not reasonably foreseeable occurs. In that event,
even though the defendant’s act started the chain of causation
toward the plaintiff’s injury, the intervening act may
be considered a superseding cause of the injury. Thus, where,
because of an unforeseeable intervening act, a court concludes
that it would be unjust to hold the defendant legally responsible,
the court relieves the defendant of liability by holding that
there is no "proximate cause" between the defendant’s
act or omission and the plaintiff’s injury.
Defense - Comparative Negligence: Contributory
negligence is conduct on the part of the plaintiff which falls
below the standard to which he or she should conform for his
or her own protection, and which is a legally contributing cause
concurring with the negligence of the defendant in bringing
about the plaintiff’s harm.
Before 1975, the plaintiff’s contributory negligence
was a complete bar to recovery against a defendant whose negligent
conduct would have otherwise made him or her liable to the plaintiff
for the harm the plaintiff sustained. However, the California
Supreme Court has replaced this all-or-nothing rule of contributory
negligence with a rule that assesses liability in proportion
to fault. In all actions for negligence resulting in injury
to person or property, the contributory negligence of the person
injured no longer bars recovery, but the damages awarded must
be diminished in proportion to the amount of negligence attributable
to the person recovering.
Every case begins with the filing and service of a Summons and
Complaint. The Complaint will contain one or more "causes
of action" such as "Breach of Contract" or "Fraud".
Service Of Complaint
After the Summons and Complaint have been filed with the court,
they must be properly served on the defendant(s). If the defendant(s)
will accept service, he/she may sign an Acknowledgment of Service."
Otherwise the documents will have to be formally served.
Response To Complaint
The Defendant(s) have 30 days from the date of service of the
Summons and Complaint to serve on the Plaintiff(s) either an
Answer to the Complaint or a pleading challenging the sufficiency
of the the Complaint. Responses challenging the sufficiency
of the Complaint include a motion called a "Demurrer"
and a "Motion To Strike"
Hearing Of Challenges To Sufficiency
Of Complaint (If Applicable)
If the defendant(s) decide to file a demurrer or motion to strike,
these motions must be heard and ruled upon before the matter
may proceed. This can take up to 2 months. If such motion is
sustained and the court grants leave to amend the Complaint,
a new complaint must be drafted and served and the process starts
over. Sometimes a second demurrer or motion will be filed causing
Once the Complaint and Answer have been filed both parties commence
"discovery" procedures by which the evidence necessary
to prosecute both sides of the case. Depending on the nature
and complexity of the case, one or more of the following discovery
devices may be used by the parties:
- Interrogatories: Written questions which must be answered under oath.
- Request For Production Of
Documents: Demands for production of documents
by the parties involved.
- Requests For Admission: Requiring the parties to say which allegations they affirm
and which they deny.
- Deposition: The
parties may be required to appear in the opposing attorney's
office to answer questions under oath in front of a court
reporter. Depositions can also be taken from 3rd parties.
- Subpoena Documents From
Third Party: Documents may be subpoenad from 3rd
parties such as banks and employers.
Discovery Motions (If
If a party fails or refuses to comply with discovery requests,
it may be necessary for the party propounding the discovery
to make a motion in court to compel responses. If the court
grants the motion, further responses will be made. If those
responses are still inadequate, another motion may be made and
the court can sanction (fine) the resisting party. In extreme
cases the court can even terminate the action in favor of the
Throughout the case the court will set a series of Case Management
Conferences to be attended by attorneys for all parties. These
hearings are designed to determine whether the case is ready
for trial. When the court feels that a case is ready for trial,
it will set the date for trial and make orders concerning completion
of discovery and final preparation for trial.
Settlement negotiations may proceed throughout the trial. Often
the court will require the parties to try a mediation of the
issues or will set a "Mandatory Settlement Conference"
(MSC) before the trial date. Settlement negotiations general
become more intense as the trial date approaches.
The vast majority of cases settle before trial. However if the
parties cannot settle the case, the only way to resolve the
issues is by way of trial.