How do I prove “negligence” in a California injury case?

The elements of a California negligence claim are spelled out in Civil Jury Instructions (“CACI”) 400. For you to win a lawsuit, you have to prove by a “preponderance of the evidence” these four elements:

1. The defendant owed you a duty of care;
2. The defendant breached it;
3. This breach caused your injury; and
4. You suffered damages.¹

In the table below each of these California negligence elements is illustrated with an example in the context of a car accident:

Negligence Element	Example
1. The defendant had a duty of care towards you	While the defendant was driving, they had a duty towards all fellow motorists and pedestrians (including you) to follow traffic laws, be safe, and act like a reasonable person would under the circumstances.
2. The defendant breached their duty of care towards you	The defendant was speeding in violation of traffic laws and was therefore failing in their duty to drive safely and to minimize the chance of an accident.
3. There was causation between the defendant’s breach and your injuries	Because the defendant was speeding, they could not brake in time before rear-ending your car – resulting in you breaking an arm. Furthermore, it is reasonably foreseeable that speeding would make it difficult to avoid causing a rear-end collision.
4. You suffered damages	Due to your broken arm, you have medical bills, lost wages, lost future earnings, and pain and suffering.

To help you better understand California negligence laws, our personal injury lawyers will address:

• What is a duty of care?
• Reasonable Person Standard
• Proving Negligence
• Negligence Defenses
• Statute of Limitations
• Additional Reading

This article is about negligence under California personal injury law. If you are interested in criminal negligence, you may wish to review our article on “California’s Legal Definition of Criminal Negligence.”

What is a duty of care?

California law imposes on people a “duty of care,” which is the duty to act the way a reasonably careful person would in the same situation. What exactly your duty of care is – and to whom it is owed – depends on the circumstances. For example:

• Teachers and daycare centers have a duty to look after children who have been left in their care.
• Drivers have a duty to obey traffic laws so as not to create an unreasonable risk of car accidents or pedestrian knockdowns.
• Doctors facing medical malpractice personal injury claims are held to a higher duty of care than average people.

Reasonable Person Standard

Under California negligence law, a person breaches their “duty of care” if they:

• Do something that a reasonably careful person would NOT do in the same situation, or
• Fail to do something that a reasonably careful person WOULD do in the same situation.

If the defendant’s breach of their duty of care caused you to get injured, then they were negligent. An example is a store failing to put out a “Wet Floor” sign, which then causes a customer to slip and get hurt.

Proving Negligence

Typical evidence in negligence cases includes eyewitness testimony, video surveillance footage, and accident reconstruction expert reports. Though sometimes, your injuries are enough evidence that the defendant harmed you.

Under the of doctrine of res ipsa loquitur, which translated from Latin means, “the thing speaks for itself,” a court will presume a defendant breached their duty of care when they had exclusive control over the instruments that caused your injury.

Example: After surgery you feel an unusual pain. An X-ray shows surgical scissors in your abdomen. Since only your surgeon had control over the scissors during your surgery, res ipsa loquitur allows the court to conclude that your surgeon was negligent.

Negligence Defenses

Defendants can raise a number of arguments in personal injury cases to try to show they were not liable. Three of the most common defenses to a California negligence cause of action are the following:

1. The Defendant Owed No Duty of Care to You

Often defendants will try to claim they had no duty to act in any particular way toward you.

Though in reality, manufacturers, property owners, business owners, drivers and others often have a duty to prevent harm to others. If they breach this duty, they are liable for any damages resulting from their actions.

2. You Were Responsible for the Injury

Defendants will frequently try to blame you for causing the accident and any resulting injuries or property damage. However, a good California personal injury lawyer will conduct their own investigation to uncover the facts that prove that the defendant’s actions were a substantial factor in harming you.

Additionally, under California’s “comparative fault” law – also known as “pure comparative negligence” – you may still be able to recover some amount of damages even if you are partially at fault for your accident or injury.²

3. You Assumed the Risk of Injury

Sometimes a defendant will claim you “assumed the risk” of injury.³ This typically happens in cases where you were engaging in activities that are inherently risky – such as working out in the gym or going skiing.

If you signed a waiver of liability, you may no longer have the right to sue for negligence. However, you would still have the right to sue for gross negligence. This is like ordinary negligence, but the defendant’s conduct was particularly extreme.

Statute of Limitations

California negligence laws give you two years after you discover your injury to sue.⁴ This may sound like a lot of time, but evidence and memories disappear quickly, so you should not delay in contacting a personal injury attorney to fight for the payout you deserve.

Additional Reading

For more in-depth information, refer to the following scholarly articles:

• Negligence and Economic Damage: The California-Florida Nexus – University of Florida Law Review.
• Presumption of Negligence Rule in California: The Common Law and Evidence Code Section 669 – Pacific Law Journal.
• Comparative Negligence in California: Multiple Party Litigation – Pacific Law Review.
• California Supreme Court Abolishes Contributory Negligence as a Defense – Insurance Law Journal.
• Li v. Yellow Cab Company: A Survey of California Practice under Comparative Negligence – Pacific Law Journal.

See our personal injury attorneys’ related articles on the torts of gross negligence, negligence per se, strict liability, recklessness, and contributory negligence,

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