3. REVIEW OF NEGLIGENCE T ORT L AW UNIVERSITY OF CALIFORNIA, DAVIS PARALEGAL PROGRAM

4.  DUTY  ) SCOPE OF DUTY OWED  REASONABLE CARE TO AVOID INJURING ANOTHER OR THEIR PROPERTY  APPLIES TO REASONABLY FORESEEABLE PERSONS ELEMENTS OF NEGLIGENCE

5. BREACH OF THE DUTY OWED

6. CAUSATION (TWO PRONGS) CAUSE IN FACT and PROXIMATE CAUSE

7. FIRST PRONG: CAUSE IN FACT ACTUAL CAUSE TEST “BUT FOR…NO INJURY WOULD HAVE OCCURRED” SUBTANTIAL FACTOR TEST MULTIPLE PARTIES INVOLVED IN BRINGING ABOUT AN INJURY SECOND PRONG: PROXIMATE CAUSE (aka LEGAL CAUSE) JOINT AND SEVERAL LIABILITY MULTIPLE PARTIES ACT TOGETHER TO CAUSE INJURY WAS THE TYPE OF INJURY REASONABLY FORESEEABLE?

8. DAMAGES SOME INJURY TO PROPERY OR PERSON

9. Now, for a word from our sponsor…

13. QUIZ No. 1 ANSWERS 1 – B 2 – E 3 – G 4 – A 5 – C 6 – A 6 – A 7 – D 7 – D 8 – D 8 – D 9 – C 9 – C 10 - FALSE 10 - FALSE

14. IRAC REVIEW ISSUE RULE ANALYSIS CONCLUSION

15. BROAD CATEGORIES OF TORT LAW: NEGLIGENCE INTENTIONAL TORTS STRICT LIABILITY

16. NEGLIGENCE: The failure to exercise ordinary care.

17. SPECIAL NEGLIGENCE ACTIONS Chapter 3

18. PREMISES LIABILITY What is an owner or an occupier’s liability for injuries that occur while a person is on their property? 1Trespasser (person wrongfully on land) = no duty, with exception for trespassing children. Licensee (person with express or implied permission to 2 Licensee (person with express or implied permission to be on land) = duty of reasonable care which requires correcting known dangers on the land. Invitee (business guest) = duty of reasonable care which 3 Invitee (business guest) = duty of reasonable care which requires repairing defects he knows or should know of and discovering/correcting unknown dangers.

19. STATUS EXAMPLES You invite your friends over to watch the game – what is their status? You invite your friends over to watch the game – what is their status? –What about your duty regarding the open trench in your back yard? –What about the sink hole about to swallow your car? –What about the open wiring in the wall?

20. 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

21. CALIFORNIA CIVIL CODE SECTION 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.

22. CALIFORNIA 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 PERSONS BREACH CAUSATION ACTUAL CAUSE FORESEEABLE INJURY DAMAGES

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

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

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

26. Vicarious Liability of Employers Respondeat Superior (“let the master answer”): an employer is responsible for most harm caused by an employee acting within the course and scope of employment. a)Coming and going rule b)Frolic and detour rule c)Independent contractors

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

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

29. Independent Contractor Generally, an IC is someone who acts according to a contract. The IC controls how they accomplish the job. Employer is not held liable for IC’s negligent acts. Two broad 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.

30. Motor Vehicle Vicarious Liability The general rule is that an auto owner is not vicariously liable for the tortious conduct of another person driving their auto. BUT WAIT – THERE ARE EXCEPTIONS!

31. Family Car Doctrine

32. What about your children? Civil Code 1714.1 Civil Code 1714.1 1714.1. (a) Any act of willful misconduct of a minor which results in injury or death to another person or in any injury to the property of another shall be imputed to the parent or guardian having custody and control of the minor for all purposes of civil damages, and the parent or guardian having custody and control shall be jointly and severally liable with the minor for any damages resulting from the willful misconduct. Subject to the provisions of subdivision (c), the joint and several liability of the parent or guardian having custody and control of a minor under this subdivision shall not exceed twenty-five thousand dollars ($25,000) for each tort of the minor, and in the case of injury to a person, imputed liability shall be further limited to medical, dental and hospital expenses incurred by the injured person, not to exceed twenty-five thousand dollars ($25,000). The liability imposed by this section is in addition to any liability now imposed by law.

33. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS (“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.

34. CALIFORNIA IS 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;negligent 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.willful

35. *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 …

36. 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.

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

38. DEFENSES TO NEGLIGENCE 1.Contributory Negligence - At common law = defendant out of luck, modern view favors 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

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

40. Assumption of Risk Illustrations: Illustrations: While skiing, Ron Risky shouts out to his friends, “HEY, watch how close I come to the tree when I hit that big jump!!!” … Rock climbing guru Mr. Grapple cautiously inched his way across the ledge some 40 feet above the ground… John Jumper carefully packed his parachute… Enjoying the American River…

41. NEXT WEEK – INTENTIONAL TORTS!