This page describes CA’s basic laws surrounding negligence. When an accident occurs and someone is seriously injured, that person may file a lawsuit. The grounds for that lawsuit will likely be based in the legal theory of “negligence.” This page provides injury victims with some basic information on the topic. It is not a substitute for speaking with a San Diego personal injury lawyer, but it will give you the legal foundation for your case.
This page examines:
- Definition of negligence
- Negligence per se
- Failure to act
- What victims may recover in a lawsuit
- How much does a lawyer cost?
Definition of Negligence
From a regular person’s point of view, negligence is the failure to take proper care in doing something. From the law’s point of view, it is far more precise:
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 – California Supreme Court
Cases like this defining negligence as having four elements:
- You have an obligation (“duty”) to behave like a reasonably careful person,
- You failed to behave like a reasonably careful person (“breach”),
- Because you failed to behave like a reasonably careful person, someone else got hurt (“causation”), and
- Another person got hurt (“damages”).
Each one of these elements must be proven before an injured victim can prevail in a lawsuit. While this may seem easy, it’s not. We highly recommend that you speak with an attorney if you think someone else acted negligently and you were seriously injured. There are thousands of common examples of negligence. From car accidents to dog bites, to food poisoning and motorcycle accidents, our world is full of accidents.
Negligence Per Se
Now, the basic standard of care is that a person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.
But where a negligence action is based on the defendant’s violation of a statute or ordinance (such as the vehicle code or penal code), victims may be entitled to the benefit of “negligence per se.” This legal doctrine presumes the tortfeasor’s duty and breach (failure to exercise due care); and the only issue left for the plaintiff to prove is whether the violation caused the injury.
For example, if a driver has a blood alcohol level above the legal limit, crashes his car and causes an accident. Or if a truck driver has been driving more than the allowed hours of service, falls asleep and causes an accident. Or if a couple of teenagers drag race in their cars down a public street and get into an accident. These are all things that are prohibited by statute.
Failure to Act
Can someone be liable for failing to act? Yes, in special circumstances, the law imposes a legal duty to affirmatively act to protect someone else from danger (or to control the conduct of a third person) if there is a special relationship between the person in danger and the defendant. The California Supreme Court has expressly upheld this doctrine.
This special relationship generally exists between businesses and customers, medical professionals and patients, school districts and students, and common carriers (busses, trains, taxis, planes) and passengers, and others.
What Victims Can Recover in a Lawsuit
A person who has suffered injury through the negligence of another is entitled to be made whole. This means they should be restored to their preinjury condition through compensatory damages. The victim is entitled to recover an amount that will reasonably compensate for all physical, mental, and emotional damages caused by the injury. These damages can be broken down into two main groups: special damages and general damages.
Special damages consist of all economic (out-of-pocket) losses caused by the injury that can be proven and documented by bills, receipts, cancelled checks, business, and wage records. If you are involved in a serious accident and are hospitalized for several weeks or months with broken bones or a head injury, the medical expenses can be enormous. Special damages generally include loss of income, medical expenses, and the cost of other necessary services. These damages can include compensation for long term medical care, medications, etc.
General damages are noneconomic losses that naturally flow from the injury but are not quantifiable by reference to bills or receipts. These are damages for pain, suffering, and emotional distress. These damages involve intangible damages such as loss of enjoyment of life, disfigurement, susceptibility to future harm, shortened life expectancy, and disability. These damages can be enormously high in catastrophic injury cases.
How Much Does a Lawyer Cost
While simply reading the information on this page should provide you with a foundation on negligence, it is not a substitute for speaking with a lawyer. It costs nothing to call our attorney for a free consultation. The lawyer will evaluate your case and damages and advise you whether or not you should pursue your claim.
If you decide to hire a lawyer, he or she is paid on a contingency fee. This type of fee structure is a percentage of your gross recovery. This means you don’t pay the lawyer a dime unless he is successful in recovering money on your behalf. Our lawyer provides hope for seriously injured people.
 CACI § 401