Business Attorney in San Diego
Call: 1-619-800-0676

Negligence – what is it?

Negligence is a cause of action where the Plaintiff must show the existence of a legal duty owed by the defendant, a breach of that duty, actual and proximate cause, and damages.

The first issue is whether a duty was owed to the Plaintiff.  A minority of states hold that people owe a duty, to be careful, to everyone.  Interestingly, the majority rule is that a duty is owed only to foreseeable plaintiffs.  Foreseeable Plaintiffs are those who are in a zone of danger.

Standard of Care:  The requisite standard of care owed to Plaintiff is of a reasonably prudent person in the same or similar circumstances.

Licensee: A licensee is one who is invited onto the land of another as a social guest.

Invitee: An invitee is one who has been invited onto the land of property of another for the property owner’s benefit. The rule for invitees is that the property owner owes all the same duties that is [sic] owed to licensees, plus the owner needs to make reasonable inspections for unreasonable dangerous conditions existing on the premises.

Breach: A breach occurs when the The Defendant falls below the applicable standard of care.

Negligence Per Se: may be implied if _ is a violation of an applicable law.


Actual cause: is established if but for The Defendant’s negligent conduct Plaintiff would not have been injured.

Proximate cause: exists when it was foreseeable that THE DEFENDANT’s action would injure someone.

Eggshell skull Doctrine: THE DEFENDANT is liable for injuries despite being unaware of the Plaintiff’s unique susceptibility to such injury.

Damages: Plaintiff must prove that he suffered damages due to THE DEFENDANT’s negligent conduct.

Lost Earnings: future earnings are allowed in negligence actions.

Loss of Consortium: Plaintiff can get damages for loss of companionship


Contributory Negligence: it bars recovery where the Plaintiff is negligent himself

Comparative Neg.: apportions damages based upon Plaintiff’s negligent acts

Last Clear Change Doctrine: denies Plaintiff recovery if he had the last opportunity to avoid the accident.

Assumption of Risk: is a defense when Plaintiff proceeds in spite of a known risk.

Strict Liability for Ultra-hazardous Activities: an activity may be characterized as ultra-hazardous or abnormally dangerous if it involves a substantial risk of serious harm to persons or property no matter how much care is exercised. The activity must also not be a commonly engaged-in activity by persons in the community.

Product Liability: Plaintiff may sue on the following theories: 1) strict products liability, 2) negligence, 3) intentional tort, 4) implied warranty, and 5) express warranty/misrepresentation. In all 5 theories, Plaintiff must find a defect and existence of the defect when the product left The Defendant’s control.

Types of defect:

Manufacturing Defect: Under the Consumer expectation Test, the Defendant will be liable if Plaintiff can show that the product failed to perform safely as an ordinary consumer would expect.

Design Defect: Under the Feasible Alternative Test, Plaintiff must show that THE DEFENDANT could have made the product safer, without serious impact on the product’s price or utility.

            Inadequate Warnings: A product must have clear and complete warnings of any danger that may not be apparent to users.

Strict Liability: Plaintiff must prove: 1) strict duty owed by a commercial supplier; 2) breach of that duty; 3) actual and proximate cause; and 4) damages

Commercial Supplier’s Duty: A commercial supplier has a strict duty to supply safe products. Here, the Defendant is a commercial seller who placed goods in the stream of commerce. (Analysis). Any foreseeable Plaintiff, including a bystander, can sue any commercial supplier in the chain of distribution regardless of a contractual relationship between them.

Breach: To establish a breach of duty, plaintiff must show that the product was so defective as to be unreasonably dangerous.

                        Causation: To show actual cause, Plaintiff must show that the defect existed when the product left the Defendant’s control. To show proximate cause, the type of injury must have been foreseeable at the time the product was place in the stream of commerce. The negligent failure of an intermediary to discover the defect or to act to avoid the injury does not void the supplier’s strict liability.


Negligence: same as above, except:

Duty: + foreseeable Plaintiffs are owed a standard of care of that of a reasonably prudent manufacturing company.

Breach: is shown by negligent conduct of the Defendant leading to the supplying a defective product.

Proximate cause: + A wholesaler’s negligent failure to discover a defect does not supersede the original mftr’s negligence unless the wholesaler’s conduct exceeds ordinary foreseeable negligence.

Implied Warranty: there is an implied warranty that goods are merchantable and are generally fit for the particular purposes for which such goods are used.

Express Warranty: arises where a seller or supplier makes any affirmation of fact or promise to the buyer relating to the goods that becomes part of the “basis of the bargain.”

Misrepresentation: arises when a representation by the seller about a product induces reliance by the buyer.



Your situation is unique. Do not rely exclusively on the above information; it is necessary that you speak with a licensed California lawyer about your particular matter. For more information or to schedule a free confidential consultation with a San Diego business attorney, call (619) 800-0676 or fill out the contact page of this website.

(619) 800-0676