Negligence

A written waiver or release of future negligence claims or assumption of the risk in order to participate in recreational activities is enforceable.  Here, a high school required its football team players to sign such a release.  It barred plaintiff's claim for negligence in failing to diagnose the concussion he suffered playing football which led to serious brain damage.  Plaintiff… Read More

The Supreme Court holds that lenders and loan servicers do not owe borrowers a duty of care in handling their loan modification applications.  Lender and borrower are in privity of contract, and the economic loss rule prevents recovery for purely economic loss based on negligence between contracting parties.  The Biakanja factors apply only to parties not in privity of contract. … Read More

Distinguishing and disagreeing with Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, this decision holds that the City is vicariously liable under respondeat superior for the negligence of one of its police officers in fail to secure a Police Department-approved, secondary firearm upon returning home from work.  The policeman left the gun, unlocked, in his car when he returned… Read More

Torts, Medical Malpractice, Abandonment of Patient, Reliance on Other's Good Conduct, 1, 1 The trial court did not err in this medical malpractice case in not giving CACI 509, dealing with a doctor's abandonment of the patient.  For the instruction to be applicable, the doctor must accept the patient into his care and then refuse to treat the patient without… Read More

Under Welf. & Inst. Code 15610.57 and 15657, authorize enhanced remedies for the negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise."  Building on Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, this decision… Read More

Gov. Code 831.7 (dealing with hazardous recreational activities) immunizes Santa Barbara from liability for the death by drowning of a paddle boarder.  Stand-up paddle boarding is a hazardous recreational activity.  Santa Barbara had no duty to warn as the risk of falling from the paddle board and drowning was inherent in the sport.  Santa Barbara was not grossly negligent, having… Read More

The trial court erred in granting defendant summary judgment in this suit by a spectator injured by a foul ball during a college baseball game. Despite primary assumption of the risk, the venue has a duty to take reasonable steps to increase safety and minimize the risk of injury to spectators at its baseball games, if it could do so… Read More

Mrs. Ek, while working at See's, caught COVID allegedly due to See's negligent failure to implement procedures to prevent spread of infection.  While Mrs. Ek was home sick, she infected Mr. Ek, who later died of COVID.  This decision holds that the Workers Comp. Act does not preempt Mr. Ek's heirs' wrongful death suit.  The derivative injury doctrine under which… Read More

Following Delaney v. Baker (1999) 20 Cal.4th 23, this decision holds that MICRA's one-year limitations on medical malpractice claims and $250,000 limit on non-economic damages did not apply to this elderly woman's who was sexually assaulted by the defendant elder care facility's male attendant, based on a jury's finding that the defendant was not only guilty not only of general… Read More

The trial court did not err in refusing to instruct the jury on superseding cause in this case.  Plaintiff's theory was that the defendant drug detox center was negligent in failing to prevent the foreseeable and successful suicide attempt by plaintiff's son.  A superseding cause must be one which a reasonable person would not foresee.  So, in order to find… Read More

A defendant may be held liable for negligent entrustment of a vehicle and negligent hiring of the employee who drives it if the employer fails to make a reasonable effort to determine whether the employee has a valid driver's license before allowing him to drive the vehicle.  See Veh. Code 14604, 14606(a).) Read More

Gov. Code 831.7 immunizes governmental entities from liability for any injury arising out of a hazardous recreational activity.  This decision holds that unlike Gov. Code 846 which applies only to premises liability claims, section 831.7 more broadly immunizes government entities from claims whether for hazardous conditions of property or employee negligence in connection with hazardous recreational activities.  The decision also… Read More

Though the filming and exhibition of a public television reality show regarding persons aspiring to be models was entitled to protection under the Anti-SLAPP statute (CCP 425.16(e)), the plaintiff, a real, well-known model, presented enough evidence to show a probability of success on her claims for invasion of privacy, intentional and negligent infliction of emotional distress and misappropriation of her… Read More

Plaintiff's faithless manager embezzled $154,000 by taking checks payable to plaintiff, endorsing them with a squiggle that might have approximated his name, and depositing them in his own account at JPMorgan.  Because the deposits were by ATM and each check was for less than $1,500, no human inspected them.  Held, the trial court erred in granting JPMorgan summary judgment.  JPMorgan… Read More

In determining whether a defendant's tortious conduct was the proximate cause of plaintiff's damage, the court must view the general set of circumstances not the particular facts of the case.  So, here, the defendant escrow company's negligence in closing an escrow for the sale of a house led foreseeably to the seller's incurring damages in the form of attorney fees… Read More

A defendant can be held liable for negligent misrepresentation on two disparate theories.  First, under Rest.2d Torts section 311, a defendant may be liable for negligent misrepresentation in endorsing a product that physically harms the plaintiff.  (See Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680.)  Here, plaintiff suffered no physical injury and so couldn't rely on that theory to pursue… Read More

Deputy sheriffs arrested Collins, thinking he was drunk and interrupted the paramedics' review of his medical condition.  When Collins was finally seen by a doctor, he was misdiagnosed.  As a result of the poor medical treatment, Collins suffered extensive injuries.  This decision holds that (1) despite having probable cause to arrest Collins, the deputies can be liable in negligence for… Read More

The trial court did not err in awarding attorney fees to defendant noteholder when it prevailed against plaintiff borrower's negligence and fraud claims that were aimed at preventing enforcement of the note and deed of trust through nonjudicial foreclosure.  Even though the plaintiff pursued tort theories, the gist of the action was to prevent enforcement of the note and deed… Read More

A patient may sue a physician for negligently recommending a course of treatment if (1) that course stems from a misdiagnosis of the patient’s underlying medical condition, or (2) all reasonable physicians in the relevant medical community would agree that the probable risks of that treatment outweigh its probable benefits.  The patient's informed consent to the treatment does not absolve… Read More

Negligent misrepresentation differs from intentional misrepresentation on at least two elements.  For fraud, the defendant must know the representation is false; whereas, for negligent misrepresentation, lack of a reasonable basis to believe the representation is true will suffice.  Also, for negligent misrepresentation, no showing of intent to deceive is required, just an intent to induce reliance on the misstated fact. … Read More