400 . Negligence - Essential Factual Elements
[ Name of plaintiff ] claims that [he/she/ nonbinary pr onoun ] was harmed by
[ name of defendant ]’ s negligence. T o establish this claim, [ name of plaintiff ]
must prove all of the following:
1. That [ name of defendant ] was negligent;
2. That [ name of plaintiff ] was harmed; and
3. That [ name of defendant ]’s negligence was a substantial factor in
causing [ name of plaintiff ]’s harm.
New September 2003; Revised February 2005, June 2005, December 2007,
December 201 1
Directions for Use
In medical malpractice or professional negligence cases, the word “medical” or
“professional” should be added before the word “negligence” in the first paragraph.
The word “harm” is used throughout these instructions, instead of terms like
“loss,” “injury ,” and “damage,” because “harm” is all-purpose and suf f ices in their
Sources and Authority
• General Duty to Exercise Due Care. Civil Code section 1714(a).
• “Although it is true that some exceptions have been made to the general
principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence of statutory
provision declaring an exception to the fundamental principle enunciated by
section 1714 of the Civil Code, no such exception should be made unless clearly
supported by public policy .” ( Rowland v . Christian (1968) 69 Cal.2d 108, 1 12
[70 Cal.Rptr . 97, 443 P .2d 561].)
• “ ‘The elements of a cause of action for negligence are well established. They
are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)
the breach as the proximate or legal cause of the resulting injury .” ’ ” ( Ladd v .
County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr .2d 309, 911 P .2d
• “Breach is the failure to meet the standard of care.” ( Coyle v . Historic Mission
Inn Corp. (2018) 24 Cal.App.5th 627, 643 [234 Cal.Rptr .3d 330].)
• “The element of causation requires there to be a connection between the
defendant’ s breach and the plaintiff’ s injury .” ( Coyle , supra , 24 Cal.App.5th at p.
• “ ‘In most cases, courts have fixed no standard of care for tort liability more
precise than that of a reasonably prudent person under like circumstances.’ This
is because ‘[e]ach case presents dif ferent conditions and situations. What would
be ordinary care in one case might be negligence in another .’ ” ( Coyle , supra , 24
Cal.App.5th at pp. 639-640, internal citation omitted.)
• “ ‘ “[I]t is the further function of the court to determine and formulate the
standard of conduct to which the duty requires the defendant to conform.”
[Citation.] [¶] The formulation of the standard of care is a question of law for
the court. [Citations.] Once the court has formulated the standard, its application
to the facts of the case is a task for the trier of fact if reasonable minds might
dif fer as to whether the defendant’ s conduct has conformed to the standard.
[Citations.]’ ” ( Regents of University of California v . Superior Court (2018) 29
Cal.App.5th 890, 902-903 [240 Cal.Rptr .3d 675].)
• “The first element, duty , ‘may be imposed by law , be assumed by the defendant,
or exist by virtue of a special relationship.’ ” ( Doe v . United States Y outh Soccer
Assn., Inc. (2017) 8 Cal.App.5th 1 1 18, 1 128 [214 Cal.Rptr .3d 552].)
• “[T]he existence of a duty is a question of law for the court.” ( Ky . Fried
Chicken of Cal. v . Superior Court (1997) 14 Cal.4th 814, 819 [59 Cal.Rptr .2d
756, 927 P .2d 1260].)
• “In the Rowland [ Rowland, supra , 69 Cal.2d at p. 1 13] decision, this court
identified several considerations that, when balanced together , may justify a
departure from the fundamental principle embodied in Civil Code section 1714:
‘the foreseeability of harm to the plaintif f, the degree of certainty that the
plaintif f suf fered injury , the closeness of the connection between the defendant’ s
conduct and the injury suf fered, the moral blame attached to the defendant’ s
conduct, the policy of preventing future harm, 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 the availability , cost, and prevalence
of insurance for the risk involved.’ As we have also explained, however , in the
absence of a statutory provision establishing an exception to the general rule of
Civil Code section 1714, courts should create one only where ‘clearly supported
by public policy .’ ” ( Cabral v . Ralphs Gr ocery Co. (201 1) 51 Cal.4th 764, 771
[122 Cal.Rptr .3d 313, 248 P .3d 1 170], internal citations omitted.)
• “[T]he analysis of foreseeability for purposes of assessing the existence or scope
of a duty is dif ferent, and more general, than it is for assessing whether any such
duty was breached or whether a breach caused a plaintif f’ s injuries. ‘[I]n
analyzing duty , the court’ s task “ ‘ “is not to decide whether a particular
plaintif f’ s injury was reasonably foreseeable in light of a particular defendant’ s
conduct, but rather to evaluate more generally whether the category of negligent
conduct at issue is suf ficiently likely to result in the kind of harm experienced
that liability may appropriately be imposed on the negligent party .” ’ ” ‘The jury ,
by contrast, considers “foreseeability” in two more focused, fact-specific settings.
First, the jury may consider the likelihood or foreseeability of injury in
determining whether , in fact, the particular defendant’ s conduct was negligent in
the first place. Second, foreseeability may be relevant to the jury’ s determination
NEGLIGENCE CACI No. 400
of whether the defendant’ s negligence was a proximate or legal cause of the
plaintif f’ s injury .’ ” ( Staats v . V intner ’ s Golf Club, LLC (2018) 25 Cal.App.5th
826, 837 [236 Cal.Rptr .3d 236], original italics, internal citation omitted.)
• “A defendant does not owe a legal duty to protect against third party conduct,
unless there exists a special relationship between the defendant and the plaintif f.
In that circumstance, ‘[i]n addition to the special relationship . . . , there must
also be evidence showing facts from which the trier of fact could reasonably
infer that the [defendant] had prior actual knowledge , and thus must have known ,
of the of fender ’ s assaultive propensities. [Citation.]’ In short, the third party’ s
misconduct must be foreseeable to the defendant.” ( Doe v . Los Angeles County
Dept. of Childr en & Family Services (2019) 37 Cal.App.5th 675, 682-683 [250
Cal.Rptr .3d 62], original italics.)
• “[T]he concept of foreseeability of risk of harm in determining whether a duty
should be imposed is to be distinguished from the concept of ‘ “foreseeability”
in two more focused, fact-specific settings’ to be resolved by a trier of fact.
‘First, the [trier of fact] may consider the likelihood or foreseeability of injury in
determining whether , in fact, the particular defendant’ s conduct was negligent in
the first place. Second, foreseeability may be relevant to the [trier of fact’ s]
determination of whether the defendant’ s negligence was a proximate or legal
cause of the plaintif f’ s injury .’ ” ( Burns v . Neiman Marcus Gr oup, Inc. (2009)
173 Cal.App.4th 479, 488, fn. 8 [93 Cal.Rptr .3d 130], internal citation omitted.)
• “By making exceptions to Civil Code section 1714’ s general duty of ordinary
care only when foreseeability and policy considerations justify a categorical no-
duty rule, we preserve the crucial distinction between a determination that the
defendant owed the plaintif f no duty of ordinary care, which is for the court to
make, and a determination that the defendant did not breach the duty of ordinary
care, which in a jury trial is for the jury to make. . . . While the court deciding
duty assesses the foreseeability of injury from ‘the category of negligent conduct
at issue,’ if the defendant did owe the plaintif f a duty of ordinary care the jury
‘may consider the likelihood or foreseeability of injury in determining whether ,
in fact, the particular defendant’ s conduct was negligent in the first place.’ An
approach that instead focused the duty inquiry on case-specific facts would tend
to ‘eliminate the role of the jury in negligence cases, transforming the question
of whether a defendant breached the duty of care under the facts of a particular
case into a legal issue to be decided by the court . . . .’ ” ( Cabral, supra , 51
Cal.4th at pp. 772-773, original italics, internal citations omitted.)
• “[W]hile foreseeability with respect to duty is determined by focusing on the
general character of the event and inquiring whether such event is ‘likely enough
in the setting of modern life that a reasonably thoughtful [person] would take
account of it in guiding practical conduct’, foreseeability in evaluating
negligence and causation requires a ‘more focused, fact-specific’ inquiry that
takes into account a particular plaintif f’ s injuries and the particular defendant’ s
conduct.” ( Laabs v . Southern California Edison Company (2009) 175
Cal.App.4th 1260, 1273 [97 Cal.Rptr .3d 241], internal citation omitted.)
CACI No. 400 NEGLIGENCE
• “The issue here is whether [defendant] - separate from other legal and practical
reasons it had to prevent injury of any kind to the public - had a tort duty to
guard against negligently causing what we and others have called ‘purely
economic loss[es].’ W e use that term as a shorthand for ‘pecuniary or
commercial loss that does not arise from actionable physical, emotional or
reputational injury to persons or physical injury to property .’ And although
[defendant] of course had a tort duty to guard against the latter kinds of injury ,
we conclude it had no tort duty to guard against purely economic losses.”
( Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 398 [247
Cal.Rptr .3d 632, 441 P .3d 881], internal citations omitted.)
• “[Defendant] relies on the rule that a person has no general duty to safeguard
another from harm or to rescue an injured person. But that rule has no
application where the person has caused another to be put in a position of peril
of a kind from which the injuries occurred.” ( Carlsen v . Koivumaki (2014) 227
Cal.App.4th 879, 883 [174 Cal.Rptr .3d 339].)
• “A defendant may owe a duty to protect the plaintif f from third party conduct if
the defendant has a special relationship with either the plaintif f or the third
party .” ( University of Southern California v . Superior Court (2018) 30
Cal.App.5th 429, 440 [241 Cal.Rptr .3d 616].)
• “ ‘T ypically , in special relationships, “the plaintif f is particularly vulnerable and
dependent upon the defendant who, correspondingly , has some control over the
plaintif f’ s welfare. [Citation.]” [Citation.] A defendant who is found to have a
“special relationship” with another may owe an af firmative duty to protect the
other person from foreseeable harm, or to come to the aid of another in the face
of ongoing harm or medical emergency .’ ” ( Carlsen, supra , 227 Cal.App.4th at
• “W e agree that the same factors we discussed in Giraldo [ v . Dept. of Corr ections
& Rehabilitation (2008) 168 Cal.App.4th 231] apply to the relationship between
a law enforcement of ficer and arrestee: Once in custody , an arrestee is
vulnerable, dependent, subject to the control of the of ficer and unable to attend
to his or her own medical needs. Due to this special relationship, the of ficer
owes a duty of reasonable care to the arrestee.” ( Frausto v . Dept. of California
Highway Patr ol (2020) 53 Cal.App.5th 973, 993 [267 Cal.Rptr .3d 889].)
• “Generally , a greater degree of care is owed to children because of their lack of
capacity to appreciate risks and avoid danger . [Citation.] Consequently ,
California courts have frequently recognized special relationships between
children and their adult caregivers that give rise to a duty to prevent harms
caused by the intentional or criminal conduct of third parties.” ( Doe, supra, 8
Cal.App.5th at p. 1 129, internal citations omitted.)
• “[P]ostsecondary schools do have a special relationship with students while they
are engaged in activities that are part of the school’ s curriculum or closely
related to its delivery of educational services.” ( Regents of University of
California v . Superior Court (2018) 4 Cal.5th 607, 624-625 [230 Cal.Rptr .3d
415, 413 P .3d 656], original italics.)
NEGLIGENCE CACI No. 400
• “[A] university’ s duty to protect students from foreseeable acts of violence is
governed by the ordinary negligence standard of care, namely ‘that degree of
care which people of ordinarily prudent behavior could be reasonably expected
to exercise under the circumstances.’ ” ( Regents of University of California,
supra , 29 Cal.App.5th at p. 904.)
Secondary Sources
6 W itkin, Summary of California Law (1 1th ed. 2017) T orts, §§ 1 138, 1450-1460,
California T ort Guide (Cont.Ed.Bar 3d ed.) §§ 1.4-1.18
1 Levy et al., California T orts, Ch. 1, Negligence: Duty and Breach , §§ 1.02, 1.12,
Ch. 2, Causation , § 2.02, Ch. 3, Proof of Negligence , § 3.01 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence , § 380.10
(Matthew Bender)
16 California Points and Authorities, Ch. 165, Negligence , §§ 165.10, 165.20
(Matthew Bender)
CACI No. 400 NEGLIGENCE
Page last reviewed May 2024
In this second of a two-part series of columns, Professor Citron argues that Roberts re-established his control over the Court by successfully weakening the administrative state and expanding presidential immunity while simultaneously avoiding controversial decisions on gun rights and reproductive issues, ultimately demonstrating his ability to push a conservative agenda without incurring significant political backlash.
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