California personal injury attorneys

Legal Concepts: Duty

In every personal injury negligence case, the court may be asked to determine if the defendant(s) owed plaintiff(s) a duty of care. Proving a duty (such as to keep premises safe, or to drive within the speed limit) and then showing that the duty was breached are required elements of any lawsuit for damages due to negligence or intentional injuries.

If a defendant files a motion for summary judgment or summary adjudication claiming no duty was owed to plaintiff, the plaintiff must establish a duty existed. If plaintiff fails, the case will be dismissed.

Duty Defined

As Professor Steven Finz has noted, duty is nothing more than a shorthand expression for the court's determination that a certain types of persons (person includes corporations and the like) is required to avoid an unreasonable risk to a certain type of plaintiff under a certain set of circumstances. A duty of care is a requirement that a person act toward others and the public with the care, caution and prudence that a reasonable person in the circumstances would use.

If a person's actions do not meet this standard of care, then the acts are considered negligent, and the persons or entities committing such negligence may be liable for all damages caused thereby.

In the landmark case of Rowland v. Christian (1968) 69 Cal.2d 108, 113 the Supreme Court set forth a number of factors which should be considered in determining the question of duty. These factors include among other things:

    1) foreseeability of harm to the plaintiff;
    2) the degree of certainty that the plaintiff suffered injury;
    3) the closeness between defendant's conduct and the injury suffered;
    4) the moral blame attached to the defendant's conduct;
    5) the policy of preventing future harm;
    6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
    7) the availability, cost, and prevalence of insurance for the risk involved.

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