Negligence Law & Statute of Limitations California & Affirmative Defenses

Brad Nakase, Attorney

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The definition of negligence is the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Jamison v. San Jose & S. C. R. Co. (Cal. July 1, 1880), 55 Cal. 593.

In order to state a cause of action for negligence, a plaintiff must state facts showing that the defendant had a duty to the plaintiff, that the duty was breached by negligent conduct, and that the breach was the cause of damages to the plaintiff. Brooks v. Eugene Burger Management Corp., 215 Cal. App. 3d 1611.

The elements of a cause of action for negligence are commonly stated as

  1. legal duty to use due care;
  2. a breach of that duty;
  3. a reasonably close causal connection between that breach and the resulting injury; and
  4. actual loss or damage. Thai v. Stang, 214 Cal. App. 3d 1264

To establish negligence per se, a plaintiff must prove:

  1. defendant violated a statute, ordinance or regulation of a public entity,
  2.  the violation proximately caused his injury,
  3. the injury resulted from an occurrence the nature of which the statute was designed to prevent, and (4) he was one of the class of persons for whose protection the statute was adopted.  Capolungo v. Bondi, 179 Cal. App. 3d 346, 349-350

A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed, Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. Hahn v. Mirda, 147 Cal. App. 4th 740.

Negligence may be alleged in general terms; that is, it is sufficient to allege an act was negligently done without stating the particular omission which rendered it negligent. There is no requirement that the plaintiff identify and allege the precise moment of the injury, or the exact nature of the wrongful act. Hahn v. Mirda, 147 Cal. App. 4th 740.

Breach of Duty of Care

Negligence can exist only if there is some duty and obligation that must be performed by the party charged with negligence in favor of the injured party; that is, one cannot be said to be negligent as to injured party unless it appears that he owed to the injured party a duty of care. Hall v. Southern California Edison Co. (Cal. App. Mar. 19, 1934), 137 Cal. App. 449.

Liability is incurred in tort when a person at the time of the negligent act or omission should have reasonably foreseen that such act or omission could result in damage to another. Alva v. Cook, 49 Cal. App. 3d 899.

The element of breach of duty is a question of fact for the fact-finder to decide. Slaughter v. Legal Process and Courier Serv., 162 Cal. App. 3d 1236, 1250.

To establish negligence per se, a plaintiff must prove: (1) defendant violated a statute, ordinance or regulation of a public entity, (2) the violation proximately caused his injury, (3) the injury resulted from an occurrence the nature of which the statute was designed to prevent, and (4) he was one of the class of persons for whose protection the statute was adopted.  Capolungo v. Bondi, 179 Cal. App. 3d 346, 349-350; see also Cal. Evid. Code §669.

The element of breach of duty is a question of fact for the fact-finder to decide. Slaughter v. Legal Process and Courier Serv., 162 Cal. App. 3d 1236, 1250.

Conformity with the general practice or custom in the business or trade will not excuse conduct which is not consistent with due care. Holt v. Department of Food and Agric., 171 Cal. App. 3d 427, 435-36 (crop duster breached its duty of care by spraying dangerous chemical without sufficient surveillance of rice field to determine whether persons were in area).

The owners and operators of a dance hall breached their duty to a dancer when they increased the risk of falling by adding a slippery substance to the dance floor.  Bush v. Parents Without Partners, 17 Cal. App. 4th 322, 329.

A carrier who breached a shipping contract by contaminating the shipped product was liable in tort for negligently performing the contract. North American Chemical Co. v. Superior Court, 59 Cal. App. 4th 764, 776.

Ordinary negligence consists of acts or omissions which are not compatible with the standard of care exercised by an abstract man of ordinary prudence. The test of such negligence is an objective, rather than a subjective, one. In case of the intentional tort, such as trespass and assault and battery, the test of wrongdoing is subjective as the intent of the wrongdoer is involved. As to conduct falling between these classes, the terms “gross negligence” and “wilful misconduct” have been employed. People v. Young, 20 Cal. 2d 832.

Automatic Negligence for Breach of Duty for Violation of Statute (Negligence per Se)

Evidence Code §669:

(a) The failure of a person to exercise due care is presumed if:

(1) He violated a statute, ordinance, or regulation of a public entity;

(2) The violation proximately caused death or injury to person or property;

(3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and

(4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

(b) This presumption may be rebutted by proof that:

(1) The person violating the statute, ordinance, or regulation did what might reasonably be expected of a person of ordinary prudence, acting under similar circumstances, who desired to comply with the law; or

(2) The person violating the statute, ordinance, or regulation was a child and exercised the degree of care ordinarily exercised by persons of his maturity, intelligence, and capacity under similar circumstances, but the presumption may not be rebutted by such proof if the violation occurred in the course of an activity normally engaged in only by adults and requiring adult qualifications.

Causation to Damages

Legal cause requires that the defendant’s negligent acts were a substantial factor in bringing about the plaintiff’s injury or damage. Mitchell v. Gonzales, 54 Cal. 3d 1041.

If the conduct which is claimed to have caused the injury had nothing at all to do with the injuries, it could not be said that the conduct was a factor, let alone a substantial factor, in the production of the injuries. Mitchell v. Gonzales, 54 Cal. 3d 1041.

A cause of injury, damage, loss or harm is something that is a substantial factor in bringing about an injury, damage, loss or harm. Espinosa v. Little Co. of Mary Hospital, 31 Cal. App. 4th 1304.

While there is no judicially approved definition of what is a substantial factor for causation purposes, it seems to be something which is more than a slight, trivial, negligible, or theoretical factor in producing a particular result. Espinosa v. Little Co. of Mary Hospital, 31 Cal. App. 4th 1304.

Causation in fact is ultimately a matter of probability and common sense: A plaintiff is not required to eliminate entirely all possibility that the defendant’s conduct was not a cause. It is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. If, as a matter of ordinary experience, a particular act or omission might be expected to produce a particular result, and if that result has in fact followed, the conclusion may be justified that the causal relation exists. In drawing that conclusion, the triers of fact are permitted to draw upon ordinary human experience as to the probabilities of the case. Conduct can be considered a substantial factor in bringing about harm if it has created a force or series of forces which are in continuous and active operation up to the time of the harm, or stated another way, the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another. Espinosa v. Little Co. of Mary Hospital, 31 Cal. App. 4th 1304.

There may be more than one cause of an injury. When negligent or wrongful conduct of two or more persons or negligent or wrongful conduct and a defective product, contributes concurrently as a cause of an injury, the conduct of each is a cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. It is no defense that the negligent wrongful conduct of a person not joined as a party was also a cause of the injury. Espinosa v. Little Co. of Mary Hospital, 31 Cal. App. 4th 1304.

Negligence Need Not Be Sole Cause

Cal. Jury Instructions Civ. No. 3.75, the so-called proximate cause instruction, which contains a “but for” test of cause in fact, is no longer recognized in the State of California. Cal. Jury Instructions Civ. No. 3.76, the so-called legal cause instruction, which employs the “substantial factor” test of cause in fact is the recognized jury instruction in a negligence case. Mitchell v. Gonzales, 54 Cal. 3d 1041.

Defendant’s negligence need not be the sole cause of plaintiff’s injury; his negligence need only be a proximate cause of the injury. Champion v. Bennetts, 37 Cal. 2d 815; Berkovitz v. American River Gravel Co., 191 Cal. 195.

A defendant’s conduct is the “proximate legal cause” of a plaintiff’s injury if it is a substantial factor in bringing about the injury. Jarchow v. Transamerica Title Ins. Co., 48 Cal. App. 3d 917.

Liability may be imposed upon a defendant where his negligence is one of several contributing factors, each of which is a proximate cause of plaintiff’s injury. De Corsey v. Purex Co., 92 Cal. App. 2d 669.

Negligent acts of several persons, each of which contributes proximately to the occurrence of the accident, or injury, may give rise to liability on the part of all of the actors. One who is guilty of negligent acts which contribute proximately to the occurrence of the accident or injury may not escape liability upon the ground that the acts of others, whether negligent or not, are also contributing causes. If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability. De Corsey v. Purex Co., 92 Cal. App. 2d 669.

Liability may be imposed upon a defendant where his negligence is one of several contributing factors, each of which is a proximate cause of the injury. Also, the question of proximate cause is ordinarily one of fact and the determination of the issue by the jury will be upheld if it expresses a reasonable conclusion drawn from the evidence.   De Corsey v. Purex Co., 92 Cal. App. 2d 669.

It is not necessary that negligence of the defendant, to be actionable, be the sole cause of the damage. One who contributes to damage cannot escape liability because the proportionate contribution may not be accurately measured. It is incumbent upon the party alleging injury to prove the amount of damages. De Corsey v. Purex Co., 92 Cal. App. 2d 669.

Intervening/Superceding Cause

Whether an independent intervening act breaks the chain of causation is determined by the foreseeability of that act. An act is not foreseeable, and is thus a “superseding cause” of the injury, if it is highly unusual or extraordinary and is not reasonably likely to happen. Schrimscher v. Bryson, 58 Cal. App. 3d 660.

An intoxicated driver, at the time that his negligence caused a collision, could not reasonably have anticipated that a second intoxicated driver would run into his vehicle which caused injury to an investigating highway patrolman. The action of the second motorist was a superseding cause and the first motorist was not liable to the patrolman. Schrimscher v. Bryson, 58 Cal. App. 3d 660.

A street vendor who attracted children by a sound device was liable to a child who was struck by another’s automobile while crossing the street. The vendor’s “intervening cause” defense failed because the vendor could foresee that an intervening act of negligence by a passing motorist might harm potential customers. Ellis v. Trowen Frozen Prods., Inc., 264 Cal. App. 2d 499.

A homeowner’s electrocution by defendant’s uninsulated power line while trimming trees was not a superseding cause as the injury sustained was an expected result and the homeowner was within the class of persons exposed to danger when the utility deliberately permitted an uninsulated power line to remain near the tree. Pappert v. San Diego Gas & Elec. Co., 137 Cal. App. 3d 205.

Car Accident (Motor Vehicle Accidents) Reasonably Foreseeable Damage

A motorist proximately caused injury to a plaintiff when he knocked down a power pole resulting in a power surge that damaged a motor at the plaintiff’s factory and idled employees for two hours. The motorist was liable for the replacement cost of the motor and for the wages paid to the idled employees since those damages were reasonably foreseeable. George A. Hormel & Co. v. Maez, 92 Cal. App. 3d 963.

An ice company engineer’s failure to take steps to prevent the bursting of sulphuric acid drums after seeing their bulged condition, which he knew was caused by internal pressure, was a proximate cause of injuries to a bystander when the drums burst. The chemical company’s delivery of the drums to the ice company was also a proximate cause since the chemical company knew the drums were likely to burst if not kept cool and vented and failed to warn the ice company of such fact. Each company was liable. Gall v. Union Ice Co., 108 Cal. App. 2d 303.

The defense of “inevitable accident” is nothing more than a denial of negligence by defendant, or a contention that his negligence, if any, was not a proximate cause of the injury. Smith v. San Francisco, 117 Cal. App. 2d 749 (“inevitable accident” jury instruction was not in error where plaintiff pedestrian stepped into path of bus which allegedly failed to yield and struck plaintiff).

In a case against a landlord by a tenant who was raped on the premises, speculation as to whether the rapist entered through a broken security gate was insufficient to establish proximate cause. Leslie G. v. Perry & Associates, 43 Cal. App. 4th 472.

Generally, a fire is the proximate cause of all injuries and damage it may produce, whether it spreads to one abutting property or for several miles. Osborn v. Whittier, 103 Cal. App. 2d 609.

Negligence Damage

Damage must be pled and proved as an essential element of negligence. Rosales v. Stewart, 113 Cal. App. 3d 130.

The phrase “injury occasioned to another” as used in Civil Code §1714 is the injury to the person who is the victim of the actor’s negligence. Buckley v. Chadwick, 45 Cal. 2d 183.

Damages must be pleaded and proved as an essential element in a negligence action. Without final judicial declaration of both liability and damages, the insurer’s duty to effectuate a good faith settlement of the claim is not established. Marenger v. Hartford Accident & Indem. Co., 219 Cal. App. 3d 625.

“If the allegedly negligent conduct does not cause damage, it generates no cause of action in tort. The mere breach of a … duty, causing only nominal damages, speculative harm, or the threat of future harm — not yet realized — does not suffice to create a cause of action for negligence.” Budd v. Nixen, 6 Cal. 3d 195, 200.

The plaintiff’s damages cannot be contingent or speculative. Negligence in drafting a will did not result in damages until the testator’s death. Horne v. Peckham, 97 Cal. App. 3d 404.

Negligence causing only monetary harm does not give rise to emotional distress damages. Quezada v. Hart, 67 Cal. App. 3d 754.

Negligence Emotional Distress Damages

In negligence actions for physical injury, recovery for emotional distress caused by that injury is available as an item of parasitic damages. Crisci v. Security Insurance Co., 66 Cal. 2d 425, 433.

“[U]nless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.” Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985 (emotional distress caused by fear of a cancer that is not probable should generally not be compensable in a negligence action).

Homeowners who sued a contractor for construction defects in their custom-built home were entitled to recover damages for their emotional distress resulting from the negligence because structural defects could cause the house, or parts of it, to collapse and thus created a threat of physical injury. Erlich v. Menezes, 60 Cal. App. 4th 1357, 1363.


Negligence Homicide Damages

A motorist who killed a passenger disembarking from a streetcar was not guilty of negligent homicide within Veh. Code, § 500, where it appeared merely that she was guilty of negligence, as where it appeared that she was overtaking and endeavoring to pass a street car while exceeding the speed limit, but without traveling at a particularly excessive speed (35 m. p. h.), that she failed to stop at the rear of the car as required in the absence of a safety zone, that she failed to observe that the car was being brought to a stop, and that she did not see the disembarking passenger until he stepped from the car. People v. Young, 20 Cal. 2d 832

Negligence Remedies

Compensatory Damages

(Cal. Civ. Code §3333) (the general measure of tort damages is the amount which will compensate for all the detriment proximately caused, whether it could have been anticipated or not).

Emotional Distress

(Erlich v. Menezes, 60 Cal. App. 4th 1357, 1363) (damages for physical pain, mental suffering and emotional distress are recoverable if they arise out of and are proximately caused by defendant’s breach of a legal duty. Even then, with rare exceptions, the breach of duty must threaten physical injury, not simply damage to property or financial interests)).

Limit of Liability

(Cal. Civ. Code §1431.2; Greathouse v. Amcord, Inc., 35 Cal. App. 4th 831) (liability of an individual defendant for non-economic damages cannot exceed that defendant’s percentage of fault)).

Punitive Damages 

California Civil Code § 3294 permits a plaintiff to be awarded “punitive” damages in a personal injury case. Punitive damages are also known in California as “exemplary” damages.

Mere negligence, even gross negligence, is not sufficient to warrant punitive damages. Ebaugh v. Rabkin, 22 Cal. App. 3d 891.

Punitive damages sometimes may be assessed in unintentional tort actions. Potter v. Firestone Tire & Rubber Co., 6 Cal. 4th 965, 985.

In Dawes v. Superior Court (1980) 111 Cal.App.3d 82, 88 also illustrates the applicable standard. As in this case, the issue in Dawes was the adequacy of the Complaint’s pleading for punitive damages against an intoxicated driver after a vehicle collision. The Dawes plaintiff alleged that: “…with knowledge that probable serious injury would result to persons in the area, Mardian ran a stop sign, and was zigzagging in and out of traffic at a speed in excess of 65 miles per hour in a 35 mile per hour zone….” The court held that these allegations were sufficient, under Taylor, to set forth a claim for punitive damages. The opinion specifically held that plaintiff: “…pleaded specific facts from which the conscious disregard of probable injury to others may reasonably be inferred.” (Id., at 90.)

In Peterson v. Superior Court (1982) 31 Cal.3d 147, 162, the court held that the allegations of punitive damages in the lawsuit against an drunk driver was sufficient, where the pleaded allegations were that the drunk driver defendant drove at a speed well in excess of 75 mph, and then lost control of the vehicle and injured plaintiff, who was his passenger.


Under Code of Civil Procedure §335.1 the statute of limitations for negligence in California is two years. “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.” CCP section 335.1

Personal Injury

The statute began to run as to actions arising after the 1905 amendment relating to actions for wrongful death, from the time the action accrued, but as to such actions arising prior thereto and as to which the old statute providing for a period of two years had not run, the litigant was entitled to the whole of the new period in which to sue, from the time of the taking effect of the amendment. Crothers v. Edison Electric Co. (C.C.D. Cal. Oct. 31, 1906), 149 F. 606.

No physical contact is necessary to constitute a cause of action for personal injury, for when a bodily injury occurs the law considers the action as one for personal injuries, regardless of the nature of the breach of duty. An act of force and violence, or a battery, need not be inflicted upon the plaintiff in order to bring a case within CCP § 340 (now CCP § 335.1), relating to an injury caused by the wrongful act or neglect of another. Huntly v. Zurich General Acci. & Liability Ins. Co. (Cal. App. Aug. 1, 1929), 100 Cal. App. 201.

In action for personal injuries, where plaintiff passenger, at defendant corporation’s direction, submitted to treatment by its employed physicians and at its expense, it was latter’s duty to disclose to plaintiff full extent of his injuries and probable future disability to be expected therefrom, and defendant’s false representation designed to conceal facts known to it and intended to prevent plaintiff’s consulting other physicians and thus hinder him from bringing action until after running of statutory period, amounted to fraud on plaintiff and excused any greater diligence on his part. Pashley v. Pacific E. R. Co. (Cal. Nov. 21, 1944), 25 Cal. 2d 226.

One year (now two year) statute of limitations applies to an action based on injury suffered from eating peas, allegedly unfit for human consumption, canned by defendant. Rubino v. Utah Canning Co. (Cal. App. Feb. 3, 1954), 123 Cal. App. 2d 18.

On day plaintiffs became ill from eating canned food unfit for human consumption, the one year (now two year) statute of limitations started to run on their cause of action against defendant canning company in absence of showing of any fraud or concealment on part of defendant or of reason for failure to discover earlier the cause of injury. Rubino v. Utah Canning Co. (Cal. App. Feb. 3, 1954), 123 Cal. App. 2d 18.

Personal injury action was barred by one year statute of limitations, and statute was not tolled under CCP § 352(1) until plaintiff’s 21st birthday, where she reached her majority more than one year prior to instituting the action when she married having reached the age of 18 years. Caraway v. Burns (Cal. App. 1st Dist. July 23, 1956), 143 Cal. App. 2d 327.


Motor Vehicle Injuries

A complaint by a husband for damages resulting from injuries received by his wife while a passenger on the defendant’s streetcar, wherein it was alleged that she was injured by the negligence of the defendant’s servants but there was no showing of any reliance upon a breach of contract to transport her safely, was within CCP § 340(3) (now CCP§ 335.1). Basler v. Sacramento Electric, Gas & Railway Co. (Cal. Aug. 21, 1913), 166 Cal. 33.

Prior to the 1913 amendment of CCP § 370, a married woman was deemed to be under a disability to commence an action to recover damages for personal injuries suffered by her, and the sustaining of a demurrer based upon limitations to an action by a married woman and her husband to recover for injuries suffered while she was a passenger upon the defendant’s trains brought more than four years after the injuries occurred was reversible error, as the time of disability is not a part of the time limited for the commencement of the action. Moody v. Southern Pacific Co. (Cal. June 3, 1914), 167 Cal. 786.

The liability of a parent signing the application of a minor for a license to operate a motor vehicle for damages sustained as the result of its negligent operation by the minor is governed by CCP § 340(3) (now CCP § 335.1). McFarland v. Cordiero (Cal. App. June 7, 1929), 99 Cal. App. 352.

The liability of an automobile owner for imputed negligence under former CC § 1714¼ (now Veh C §§ 17150-17157) resulting in personal injury was governed by CCP § 340(3) (now CCP § 335.1). Franceschi v. Scott (Cal. App. June 10, 1935), 7 Cal. App. 2d 494.

CCP § 340 (now CCP § 335.1), if properly pleaded, may bar liability of automobile owner for imputed negligence of driver who is operating machine with owner’s consent, or liability of minor driver’s parents who have signed and verified his application for operator’s license, unless action is commenced within one year from date of injury complained of. Ridley v. Young (Cal. App. May 24, 1944), 64 Cal. App. 2d 503.

The one year (now two year) statute of limitations was tolled so as to extend the time within which a personal injury action could be brought against defendant bus driver, although it was not tolled as to defendant bus company, where the complaint alleged that during the year after the injuries were sustained defendants were absent from the state for more than 20 days, and where the bus company admitted that its driver could have been out of the state. Loope v. Greyhound Lines, Inc. (Cal. App. Dec. 8, 1952), 114 Cal. App. 2d 611.

Automobile owner’s liability for injuries arising out of negligent operation of his vehicle by another, operating the vehicle with his permission, is governed by CCP § 340(3) (now CCP § 335.1). Sullivan v. Wright (Cal. App. Apr. 29, 1954), 124 Cal. App. 2d 836.

In action for personal injuries arising from automobile collision against nonresident motorist, defendant’s departure from State after accident did not toll statute of limitations in view of fact that plaintiff could have maintained timely action by substituted service of process. Mangene v. Diamond (D. Pa. June 9, 1955), 132 F. Supp. 27, 1955 U.S. Dist. LEXIS 2982, aff’d, (3d Cir. Pa. Jan. 24, 1956), 229 F.2d 554.

In automobile personal injury action filed after running of statute of limitations, allegations that defendants’ insurer had promised to settled case as soon as medical information and costs were available failed to show promises by insurance adjuster sufficient in law to support plaintiff’s claim of being induced to delay filing complaint where plaintiff had counsel charged with knowledge of California limitations statute, though he practiced elsewhere, and it appeared that plaintiff did not yet know amount of medical expenses or future costs. Kunstman v. Mirizzi (Cal. App. 5th Dist. June 3, 1965), 234 Cal. App. 2d 753.


Assault and Battery

An action for assault or rape brought more than two and one-half years after the assault is barred by CCP § 340 (now CCP § 335.1). Robbins v. Law (Cal. App. July 17, 1920), 48 Cal. App. 555.

A cause of action for assault commenced more than one year (now two years) after the acts complained of is barred. Trube v. Katz (Cal. App. Jan. 19, 1923), 60 Cal. App. 474.

Where the injuries flowing from an assault and battery were immediately not substantial, but later became so, the provisions of CCP § 340(3) (now CCP § 335.1) were not tolled until the seriousness of the injuries was discovered. Sonbergh v. MacQuarrie (Cal. App. Aug. 19, 1952), 112 Cal. App. 2d 771.

Pro se patient’s complaint against foreign doctor for assault and battery was dismissed pursuant to 28 USCS § 1915(e)(2), without prejudice to filing a paid complaint; the patient’s cause of action, which was predicated on a surgery that occurred in the 1980’s, was barred by California’s one year (now two year) statute of limitations, as then contained in CCP § 340 (see now CCP § 335.1). Binshyang Soong v. Shyue Yih Chang (N.D. Cal. Mar. 28, 2003), 2003 U.S. Dist. LEXIS 5201.


Medical Malpractice

An action for damages for malpractice of a physician and surgeon was governed by CCP § 340(3) (as it then read). Krebenios v. Lindauer (Cal. June 11, 1917), 175 Cal. 431.

An action for damages for negligence in resetting a fractured leg brought within a year was not barred by CCP § 340(3), (as it then read), although commenced more than a year after the original fracture was set. Perkins v. Trueblood (Cal. May 29, 1919), 180 Cal. 437.

An action against a physician to recover damages resulting from the breach of an oral contract whereby he warranted that radium treatments of the plaintiff would not leave a permanent scar was not for malpractice based upon negligence and not within CCP § 340(3) (as it then read). Crawford v. Duncan (Cal. App. Apr. 12, 1923), 61 Cal. App. 647.

In action against plaintiff and surgeon for damages for malpractice based on negligence in leaving sponge in pelvic cavity of plaintiff following operation, trial court did not err in permitting amendment of complaint, at close of plaintiff’s case, to allege that defendant lost and left sponge in plaintiff’s body, where words “lost and left” constituted explanation of how defendant caused and permitted to be left in plaintiff’s body material and dressing, and did not set up separate or new cause of action against which statute of limitations had run. McLennan v. Holder (Cal. App. Oct. 9, 1934), 1 Cal. App. 2d 305.

Action by patient against physician and surgeon for injuries sustained by former, by reason of negligent or unskillful treatment of latter, was barred by provisions of CCP § 340 (as it then read) one year after date of injury. Huysman v. Kirsch (Cal. May 1, 1936), 6 Cal. 2d 302.

Where complaint alleged performance of abdominal operation by defendant on one of plaintiffs, at which time, on closing wound, defendant inserted tube in body of plaintiff to drain wound and negligently left same therein, without plaintiff’s knowledge, until tube was removed by defendant twenty months thereafter, during which time defendant continued to treat patient, and there were created and maintained numerous running, painful sores, continually discharging pus, and requiring constant care and attention, cause of action accrued at time of removal of tube, and was not barred until year thereafter. Huysman v. Kirsch (Cal. May 1, 1936), 6 Cal. 2d 302.

Accrual and Tolling the Statute of Limitations

Independent of statute, a fraudulent concealment by the defendant of facts upon which an action for personal injuries is based, in proper circumstances, tolls the statute until discovery. Kimball v. Pacific Gas & Electric Co. (Cal. Feb. 28, 1934), 220 Cal. 203.

A forbearance to sue for damages, induced by the fraudulent promises of those potentially liable that they will compensate the injured person for all medical expenses and loss of salary without litigation, will toll the statute of limitations. Carruth v. Fritch (Cal. Dec. 12, 1950), 36 Cal. 2d 426.

Mere ignorance, not induced by fraud, of the existence of facts constituting a cause of action on the part of a plaintiff does not prevent the running of the statute of limitations. Sonbergh v. MacQuarrie (Cal. App. Aug. 19, 1952), 112 Cal. App. 2d 771.

Mere ignorance of facts without some valid excuse for ignorance will not toll the statute of limitations. Rubino v. Utah Canning Co. (Cal. App. Feb. 3, 1954), 123 Cal. App. 2d 18.

Running of statute of limitations is suspended during pendency of an appeal in a former action relating to same issues as involved in action at bar. Marden v. Bailard (Cal. App. Apr. 8, 1954), 124 Cal. App. 2d 458.

Admission of evidence of plaintiff husband’s sanity over objection was error in personal injury action commenced after one year (now two year) period provided in CCP § 340(3) (now CCP § 335.1) after reception of evidence of proceeding in which guardian was appointed to care for plaintiff because of his incompetency. Gottesman v. Simon (Cal. App. 4th Dist. Apr. 9, 1959), 169 Cal. App. 2d 494.

Evidence was sufficient to support finding that plaintiff husband’s personal injury action was barred by one year (now two year) statute of limitations and that his delay was not excused by fact of his insanity where it appeared from hospital records, and from testimony of notaries public who had witnessed plaintiff’s signature to deed and of duly qualified psychiatrist, testifying in response to hypothetical question, that plaintiff had regained his sanity more than a year before the action was filed, irrespective of effect of guardianship proceedings. Gottesman v. Simon (Cal. App. 4th Dist. Apr. 9, 1959), 169 Cal. App. 2d 494.

Statute of limitations does not begin to run in case of conspiracy to conceal until disclosure of cause of action is made, thereby terminating wrongful concealment. Ramey v. General Petroleum Corp. (Cal. App. 2d Dist. Aug. 28, 1959), 173 Cal. App. 2d 386.

Generally, the right to bring and prosecute an action arises immediately on the commission of the wrong claimed, and the statute of limitations runs from that time; thus, a cause of action in tort arises when the wrongful act is committed, not at the time of discovery of the act. Howe v. Pioneer Mfg. Co. (Cal. App. 1st Dist. May 21, 1968), 262 Cal. App. 2d 330.


Comparative Negligence (Li v. Yellow Cab Co., 13 Cal. 3d 804) (“comparative negligence,” which assesses liability in proportion to fault, supersedes the “all-or-nothing” rule of contributory negligence, which bars all recovery when the plaintiff’s negligent conduct contributes, as a legal cause, in any degree to the harm suffered by plaintiff)).

Affirmative Defense: Assumption of Risk

A person is generally responsible 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. Cal. Code Civ. Proc. § 1714. But a defense to a claim of negligence is that the plaintiff either expressly or impliedly assumed the risk. Moser v. Ratinoff, 105 Cal. App. 4th 1211.

An express assumption of risk is a complete defense to a negligence claim. An express assumption of risk agreement does not inure to the benefit of those not parties to that agreement. A person’s written acknowledgment of the risks inherent in an activity may, however, have an effect on determinations concerning implied assumption of risk. Moser v. Ratinoff, 105 Cal. App. 4th 1211

There is no duty on the part of the defendant to protect the plaintiff from a particular risk. When the doctrine applies, the plaintiff’s assumption of the risk acts as a complete bar to liability. Moser v. Ratinoff, 105 Cal. App. 4th 1211

Whether the primary assumption of risk doctrine applies–which issue is a question of law–depends on the nature of the sport or activity in question and on the parties’ general relationship to the activity. The overriding consideration in the application of primary assumption of risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature. Moser v. Ratinoff, 105 Cal. App. 4th 1211

An activity is a sport to which the primary assumption of risk doctrine applies if that activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury. Moser v. Ratinoff, 105 Cal. App. 4th 1211

Organized, long-distance bicycle rides on public highways with large numbers of riders involve physical exertion and athletic risks not generally associated with automobile driving or individual bicycle riding on public streets or on bicycle lanes or paths. Bicycle rides are activities done for enjoyment and a physical challenge. The organized, long-distance, group bicycle ride qualifies as a “sport” for purposes of the application of the primary assumption of risk doctrine. Moser v. Ratinoff, 105 Cal. App. 4th 1211

Certain activities have been held not to be inherent in a sport and thus not subject to the primary assumption of risk doctrine. For example, drinking alcoholic beverages is not an activity inherent in the sport of skiing. On the other hand, in various sports, going too fast, making sharp turns, not taking certain precautions, or proceeding beyond one’s abilities are actions held not to be totally outside the range of ordinary activities involved in those sports. Moser v. Ratinoff, 105 Cal. App. 4th 1211

Affirmative Defense: Waiver

If one by fraudulent acts or misrepresentations induces another to delay bringing suit upon his cause of action until after the expiration of the statutory period, he is estopped to take advantage of the defense that the cause of action is barred. Wright v. Redwood Theatres, Inc. (Cal. App. Jan. 29, 1942), 49 Cal. App. 2d 403.

In an action for personal injuries brought against a theater owner and manager, where, at a trial after the statute of limitations had run, it was disclosed that the theater was operated by a party other than the defendant owner, and where in an amended complaint substituting such operator, the plaintiff stated that the defendants allowed her to believe that the owner also operated the theater, but did not charge that she was led to believe such fact by any positive act of defendants, they were not estopped from availing themselves of the statute. Wright v. Redwood Theatres, Inc. (Cal. App. Jan. 29, 1942), 49 Cal. App. 2d 403.

A party may, by his conduct, estop himself from pleading the statute of limitations. Carruth v. Fritch (Cal. Dec. 12, 1950), 36 Cal. 2d 426.

An order dismissing an action for personal injury will be reversed, though the action is brought after the statute of limitations has run, where, the order being made on sustaining a demurrer to the complaint, the allegations of the complaint must be taken as true, where such allegations raise an issue as to whether the conduct of the defendant’s agent estopped the defendant from setting up the statute. Schaefer v. Kerber (Cal. App. July 26, 1951), 105 Cal. App. 2d 645.

Evidence sustained a finding that the statute barred a negligence action filed more than the statutory period after the injury, although plaintiff testified that the delay resulted from being lulled into a sense of security by defendant’s admission of liability, assurance that it would be unnecessary for plaintiff to consult an attorney, and continuance of negotiations for more than the statutory period after the injury, where defendant denied all such testimony. Newton v. Los Angeles Transit Lines (Cal. App. Nov. 20, 1951), 107 Cal. App. 2d 624.

Defendant, who by fraud or deceit conceals material facts and by misrepresentations hinders plaintiff from bringing action within statutory period, is estopped from taking advantage of his own wrong. Stafford v. Shultz (Cal. May 11, 1954), 42 Cal. 2d 767.

Equitable doctrine of estoppel in pais is applicable in proper case to prevent fraudulent or inequitable result to provisions of this section. Regus v. Schartkoff (Cal. App. 2d Dist. Dec. 27, 1957), 156 Cal. App. 2d 382.

In action for personal injuries suffered in fall from horse, defendants were not estopped from relying on one-year (now two year) statute of limitations because defendant wife was plaintiff’s sister-in-law and assured plaintiff that everything would be taken care of because defendant carried large amount of insurance and she promised to see insurance agent to see that something was done, where insurance company, after telling plaintiff it would pay his medical expenses for the first year up to certain sum, at all times denied liability, defendant husband told plaintiff that if he did not like way things were going he should get an attorney and institute suit, and where plaintiff, during year following accident, had not emotionally deteriorated or suffered complete mental breakdown rendering him especially susceptible to any alleged promises made by defendants. Clark v. Henderson (Cal. App. 4th Dist. Apr. 20, 1959), 169 Cal. App. 2d 731.

To avoid a determination that defendant is not estopped to assert the statute of limitations, an injured plaintiff, who has secondary automobile insurance and has been misled into believing that the prospective defendant is uninsured and in effect “judgment-proof,” should not be required to bring suit and incur court costs and attorney’s fees in return for a worthless judgment; defendant ought not be allowed to mislead plaintiff, either intentionally or negligently, and then reap the benefits of his culpable misconduct and plaintiff’s justifiable reliance thereon. Casey v. Anschutz (Cal. App. 1st Dist. June 23, 1967), 252 Cal. App. 2d 9.

In an action by a husband and wife for alleged personal injuries in connection with the transfer of the husband from one hospital to another, involving a claimed tolling of the statute of limitations by reason of the wife’s insanity and by reason of fraudulent concealment of facts constituting the husband’s cause of action by a defendant, the jury was entitled to conclude that it was unlikely that such defendant subsequently concealed from the husband the supposed fact that he had been assaulted and otherwise mistreated during the transfer, where the defendant was not present during the transfer but simply knew that the husband was being transferred, and where, in view of the fact that the husband was himself aware of the fact of his transfer, it was difficult to conceive how the defendant’s alleged statement to the husband months later could have lulled the husband into refraining from filing his case. Hsu v. Mt. Zion Hospital (Cal. App. 1st Dist. Feb. 28, 1968), 259 Cal. App. 2d 562.

In a personal injury action arising out of a motor vehicle accident, the record established no basis to support imposition of an estoppel against defendant presenting the statute of limitations as an affirmative defense. The discourse between the parties prior to the filing of the action as revealed by an exchange of letters did not reveal any basis for an estoppel, and plaintiff’s amended complaint did not allege any misrepresentation or promise on the part of defendant or its insurance carrier to support a claim that plaintiff was thereby induced to delay filing his complaint. Plaintiff, a nonresident of the state, was represented by counsel before the running of the statutory period, and his attorney was charged with knowledge of California law relative to the statute of limitations. Jackson v. Andco Farms, Inc. (Cal. App. 3d Dist. Apr. 5, 1982), 130 Cal. App. 3d 475.

Joint & Several Liability for Non-Economic Damages

(Cal. Civ. Code §§1431.1 – 1431.5.

In an action subject to Proposition 51 (approved 1986), each tortfeasor remains jointly and severally liable to the plaintiff for economic damages, but is liable to the plaintiff for only its proportionate share of noneconomic damages. Bostick v. Flex Equipment Co., Inc., 147 Cal. App. 4th 80

Proposition 51 (approved 1986) has not modified the common law rule that defendants in an action for strict products liability who are in the chain of distribution of the same defective product are jointly and severally liable for all of the plaintiff’s economic and noneconomic damages. Bostick v. Flex Equipment Co., Inc., 147 Cal. App. 4th 80

Proposition 51 (approved 1986) has no application in a strict product liability case where the plaintiff’s injuries are caused solely by a defective product. A strictly liable defendant cannot reduce or eliminate its responsibility to the plaintiff for all injuries caused by a defective product by shifting blame to other parties in the product’s chain of distribution who are ostensibly more at fault and therefore may be negligent as well as strictly liable. The defendant’s recourse, if not precluded by good faith settlement principles, lies in an indemnity action. Bostick v. Flex Equipment Co., Inc., 147 Cal. App. 4th 80

Joint and several liability imposes on the remaining defendants the risk of paying more than their proportionate share if one or more tortfeasors liable for the plaintiff’s damages are insolvent or otherwise unavailable to respond to a judgment. To ameliorate this inequity and injustice, at least in part, in 1986 the California electorate passed Proposition 51 (the Fair Responsibility Act of 1986) (Civ. Code, § 1431.1). Proposition 51 retains the joint liability of all tortfeasors, regardless of their respective shares of fault, with respect to all objectively provable expenses and monetary losses, but the more intangible and subjective categories of damage are limited to a rule of strict proportionate liability. With respect to these noneconomic damages, the plaintiff alone now assumes the risk that a proportionate contribution cannot be obtained from each person responsible for the injury. Henry v. Superior Court, 160 Cal. App. 4th 440

Where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his or her injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him or her liable therefor. However, the fact that the plaintiff could have obtained full compensation for his or her damages in his or her first action asserted against only the original wrongdoer does not establish that he or she has been so compensated. A release of the original wrongdoer should release an attending doctor from liability for aggravation of the injury if there has been full compensation for both injuries, but not otherwise. Henry v. Superior Court, 160 Cal. App. 4th 440

Civ. Code, § 1431.2, declares plainly and clearly that in tort suits for personal harm or property damage, no defendant shall have joint liability for noneconomic damages, and each defendant shall be liable only for those noneconomic damages directly attributable to his or her own percentage of fault. Section 1431.2, subd. (a), expressly applies to any action for personal injury, property damage, or wrongful death, based upon principles of comparative fault and was intended to stave off [*444]  the catastrophic economic consequences and remedy the inequity resulting from holding a party bearing only a fraction of the fault financially responsible for the entirety of damages (Civ. Code, § 1431.1, subd. (c)). Thus, the critical question is not whether liability is imputed in some manner, but the reason for imposing joint liability in a particular context. And the decisive factor is fault. Proposition 51 (that is, Civ. Code, § 1431.2) is inapplicable when liability for negligent acts of another is imposed not because of independent culpability which can be measured and evaluated but because of status or relationship. The original tortfeasor’s liability for a plaintiff’s enhanced injuries caused by negligent medical care is expressly predicated on his or her culpable conduct, which set in motion the events that ultimately led the plaintiff to seek medical treatment. The fault of the original tortfeasor, as well as that of the subsequent tortfeasor who aggravated the plaintiff’s injuries, can be evaluated, measured and compared: Comparative fault is plainly at issue in these personal injury actions. Henry v. Superior Court, 160 Cal. App. 4th 440.

Collateral Estoppel

Collateral estoppel or issue preclusion bars the relitigation of an issue that was previously adjudicated if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. The “identical issue” requirement addresses whether identical factual allegations are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. The “necessarily decided” requirement means only that the resolution of the issue cannot have been entirely unnecessary to the judgment in the prior proceeding. Bostick v. Flex Equipment Co., Inc., 147 Cal. App. 4th 80

Collateral estoppel is not an inflexible doctrine. Even if the minimal requirements for its application are satisfied, the doctrine should not be applied if considerations of policy or fairness outweigh the doctrine’s purposes as applied in a particular case. In deciding whether the doctrine is applicable in a particular situation a court must balance the need to limit litigation against the right of a fair adversary proceeding in which a party may fully present his case. Moreover, a particular danger of injustice arises when collateral estoppel is invoked by a nonparty to the prior litigation. Such cases require close examination to determine whether nonmutual use of the doctrine is fair and appropriate. Bostick v. Flex Equipment Co., Inc., 147 Cal. App. 4th 80

California courts recognize exceptions to the general rule of collateral estoppel. One such exception is where the party to be precluded, or person in privity with that party, had inadequate incentive to fully litigate the issue in the prior proceeding. Moreover, collateral estoppel applies between parties who were codefendants in a prior proceeding only as to issues they litigated fully and fairly as adversaries to each other. Parties who are not adversaries to each other under the pleadings in an action involving them and a third party are bound by and entitled to the benefits of issue preclusion with respect to issues they actually litigate fully and fairly as adversaries to each other and which are essential to the judgment rendered. Bostick v. Flex Equipment Co., Inc., 147 Cal. App. 4th 80

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