California Tort Guide

Now includes 20+ attorney-drafted sample forms

Contains in-depth discussions about the principles, authorities, causes of action, and defenses that control 12 specific personal injury situations. Includes chapters on pharmaceutical and medical device litigation and consumer manufacturers. Contains sample forms and commentary on drafting complaints and responsive pleadings, discovery requests, and settlement demands and offers for the most common personal injury actions.

Airplanes
Animals
Automobiles
Carriers
Construction work
Electricity
Governmental liability
Medical malpractice
Premises liability
Product liability
Railroad crossings
Pharmaceuticals and medical devices

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Overview
Table of Contents
forms cd contents
Selected Developments
Authors
OnLAW System Requirements
Specifications

Airplanes
Animals
Automobiles
Carriers
Construction work
Electricity
Governmental liability
Medical malpractice
Premises liability
Product liability
Railroad crossings
Pharmaceuticals and medical devices

General Principles

I. INTRODUCTION
- A. Scope Note 1.1
- B. New Torts
  - 1. Generally 1.2
  - 2. Spoliation of Evidence 1.3
II. NEGLIGENCE
- A. Terminology; Ordinary Care Standard 1.4
- B. Negligence Causes of Action: Elements 1.5
  - 1. Duty
    - a. Need for Duty Determination 1.6
    - b. Applying Rowland or Bily Factors 1.7
    - c. Inferring Duty From Affirmative Conduct; Negligent Undertaking Doctrine 1.8
    - d. Court’s Role in Determining Duty 1.9
    - e. Foreseeability of Risk as Duty Component 1.10
  - 2. Breach of Duty
    - a. Misfeasance and Nonfeasance 1.11
    - b. Intentional Breach of Duty 1.12
    - c. Engaging in Ultrahazardous Activity 1.13
  - 3. Causation
    - a. Substantial Factor Test 1.14
    - b. Defining “Proximate” or “Legal” Cause 1.15
    - c. Proving Causation 1.16
    - d. Concurring Cause; Alternative Cause 1.17
    - e. Superseding Cause 1.18
  - 4. Injury 1.19
- C. Special Standards and Duties
  - 1. Minors 1.20
  - 2. Disabled Persons 1.21
  - 3. Occupational Standards; Professionals; Specialists 1.22
- D. Liability for Conduct of Third Persons; Special Relationships 1.23
  - 1. Law Enforcement Personnel 1.24
  - 2. Health Care Providers 1.25
  - 3. Family Members; Friends 1.26
  - 4. Employers 1.27
  - 5. Businesses; Suppliers of Dangerous Chattels 1.28
  - 6. Schools and School Districts 1.29
  - 7. Clergy and Religious Organizations 1.30
- E. Presumptions Affecting Proof
  - 1. Violation of Statute, Ordinance, or Regulation 1.31
    - a. Excluded Situations 1.32
    - b. Violations Shifting Burden of Proof 1.33
    - c. Rebutting the Presumption 1.34
  - 2. Res Ipsa Loquitur 1.35
    - a. Conditions 1.36
      - (1) Negligence Ordinarily the Cause 1.37
      - (2) Instrumentality Controlled by Defendant 1.38
      - (3) No Voluntary Contribution by Plaintiff 1.39
    - b. Rebutting the Presumption 1.40
- F. Defenses to Negligence Claims
  - 1. Comparative Fault 1.41
    - a. Contributory Negligence 1.42
      - (1) Secondary Assumption of Risk 1.43
      - (2) Rescue Situations 1.44
    - b. Contributory Willful Misconduct 1.45
  - 2. Assumption of Risk 1.46
    - a. Primary Assumption of Risk 1.47
      - (1) Distinguishing Primary From Secondary Assumption of Risk 1.48
      - (2) Sports or Recreational Activities Involving Inherent Risk 1.49
      - (3) Nature of Duty Depends on Defendant’s Role 1.49A
      - (4) Other Contexts in Which Doctrine Applies 1.49B
      - (5) Liability of Instructors, Coaches, and Trainers 1.50
      - (6) Liability of Equipment Suppliers 1.51
      - (7) Liability for Risks Deemed Not “Inherent” 1.52
      - (8) Effect of Violating Statute or Ordinance 1.53
      - (9) Federal Causes of Action 1.54
    - b. Express Assumption of Risk: Exculpatory Agreements; Pre-Injury Releases 1.55
    - c. Firefighter’s Rule 1.56
  - 3. Failure to Mitigate Damages 1.57
III. WILLFUL MISCONDUCT
- A. Definition; Elements; Effect of Finding 1.58
- B. Defenses to Willful Misconduct Claims
  - 1. Contributory Negligence 1.59
  - 2. Contributory Willful Misconduct 1.60
  - 3. Assumption of Risk 1.61
- C. Punitive Damages 1.62
IV. COMPARATIVE INDEMNITY
- A. Defendants’ Claims Against Cotortfeasors 1.63
- B. Particular Situations
  - 1. Successive Tortfeasors 1.64
  - 2. Loss of Consortium 1.65
  - 3. Strict Liability 1.66
  - 4. Willful Misconduct 1.67
- C. Defenses to Comparative Indemnity Claims 1.68
- D. Comparative Indemnity for Commercial Losses 1.69
V. PROPOSITION 51 (FAIR RESPONSIBILITY ACT OF 1986) 1.70

Airplanes

I. SCOPE OF CHAPTER 2.1
II. LIABILITY
- A. Applicability of Basic Tort Law 2.2
  - 1. Res Ipsa Loquitur 2.3
  - 2. Violation of Statute or Regulation 2.4
  - 3. Expert Testimony 2.5
- B. Choice of Law; Jurisdiction; Inconvenient Forum 2.6
- C. Persons Liable
  - 1. Pilots 2.7
  - 2. Airplane Owners and Lessors 2.8
  - 3. Employers 2.9
  - 4. Manufacturers, Suppliers, Repairers 2.10
  - 5. Chart Publishers 2.11
  - 6. Landing Strip Operators 2.12
  - 7. Air Show Organizers 2.13
  - 8. United States
    - a. Air Traffic Control 2.14
    - b. Federal Aviation Administration Functions 2.15
    - c. Military Activities 2.16
- D. Air Carriers’ Duties to Passengers
  - 1. Common Carrier’s Duty to Passenger for Reward 2.17
    - a. Applying Res Ipsa Loquitur 2.18
    - b. Applying Federal Preemption 2.19
  - 2. Private Carrier’s Duty to Passenger for Reward 2.20
  - 3. Carrier’s Duty to Guest or Gratuitous Passengers 2.21
- E. Warsaw Convention; Montreal Convention; Montreal Agreement 2.22
  - 1. Effect of Airline’s Willful Misconduct 2.23
  - 2. Events Within Definition of “Accident” 2.24
  - 3. Preemption of State Tort Law 2.25
  - 4. Preboarding and Postdisembarking Injuries 2.26
  - 5. Notice to Passengers 2.27
  - 6. Damages Preclusions: Emotional Distress; Wrongful Death 2.28
  - 7. Damage to Freight 2.29
III. DEFENSES
- A. Contributory Negligence; Comparative Fault and Indemnity 2.30
- B. Assumption of Risk; Exculpatory Agreements 2.31
- C. Statute of Limitations 2.32

Animals

I. PERSONS LIABLE; THEORIES
- A. Keeper or Owner 3.1
  - 1. Strict Liability
    - a. Dog-Bite Statute 3.2
    - b. Dangerous Animal Rule; Known Dangerous Traits 3.3
      - (1) Traits Other Than Biting 3.4
      - (2)  Knowledge of Trait
        
        (a)  Proof  3.5
        
        (b)  Constructive and Imputed Knowledge  3.6
    - c. Trespassing Animals 3.7
  - 2. Negligence 3.8
    - a. Failure to Warn, Restrain, or Control 3.9
    - b. Failure to Vaccinate Dog for Rabies 3.10
    - c. Violation of Local Leash Law 3.11
    - d. Livestock on Highway
      - (1) Duty to Keep Highway Clear 3.12
      - (2) Proof of Negligence 3.13
- B. Owner’s Employer 3.14
- C. Owner’s Landlord
  - 1. Injury on Premises 3.15
  - 2. Injury off Premises 3.16
- D. Seller; Bailor 3.17
- E. Business or Entity That Permits Animals on Premises 3.18
- F. Carrier 3.19
- G. Stablekeeper Furnishing Horses
  - 1. Furnishing Safe and Suitable Horse
    - a. Duty to Determine Suitability 3.20
    - b. Proving Knowledge or Negligence 3.21
    - c. Effect of Warning 3.22
  - 2. Care in Saddling; Safe Equipment 3.23
- H. Liability of Instructors and Trainers 3.24
II. DEFENSES
- A. Statute of Limitations 3.25
- B. Contributory Negligence
  - 1. As Defense to Strict Liability Cause of Action 3.26
  - 2. As Defense to Negligence Cause of Action 3.27
  - 3. Secondary Assumption of Risk 3.28
- C. Assumption of Risk That Bars Recovery 3.29
  - 1. Injury Caused by Dog; Veterinarian’s Rule 3.30
  - 2. Injury Caused by Horse
    - a. Primary Assumption of Risk 3.31
    - b. Express Assumption of Risk: Exculpatory Agreements (Releases) 3.32
- D. Willfully Invited Injury 3.33
- E. Public Entity Immunities 3.34
- F. Medical Injury Compensation Reform Act (MICRA) 3.35
III. SAMPLE FORMS
- A. Form: Sample Demand Letter Requesting Compensation for Personal Injuries 3.36
- B. Form: Sample Complaint for Damages—Personal Injuries and Property Damage (Judicial Council Form PLD-PI-001)—Strict Liability for Dog Bite Under CC §3342 3.37
- C. Form: Sample Case Questionnaire—For Limited Civil Cases (Under $25,000) (Judicial Council Form DISC-010) 3.38

Automobiles

I. SCOPE OF CHAPTER 4.1
II. PERSONS LIABLE; DUTIES
- A. Drivers
  - 1. Duty to Use Ordinary Care: Standard for Adults, Minors, and Impaired Persons 4.2
    - a. Vigilance, Control, and Lookout 4.3
      - (1) Limited Visibility; Range of Vision 4.4
      - (2) Inference of Negligence From Loss of Control (Res Ipsa Loquitur) 4.5
    - b. Right to Assume Due Care by Others 4.6
    - c. Sudden Emergency; Imminent Peril 4.7
    - d. Sudden Illness or Disability 4.8
    - e. Private Roads or Premises 4.9
  - 2. Duties Based on Statutes
    - a. Rules of the Road; Presumption of Negligence 4.10
    - b. Persons Subject to Traffic Laws 4.11
      - (1) Highway Workers 4.12
      - (2) Emergency Vehicle Drivers 4.13
    - c. Particular Traffic Rules
      - (1) Right Side of Road 4.14
      - (2) Right-of-Way Rules 4.15
      - (3)  Speed
        
        (a)  Basic Speed Law  4.16
        
        (b)  Maximum Limits  4.17
        
        (c)  Prima Facie and Posted Limits  4.18
        
        (d)  Racing on Streets  4.19
        
        (e)  Minimum Speed Law  4.20
      - (4) Stopping, Standing, and Parking 4.21
      - (5) Following; Rear-End Collisions 4.22
      - (6) Duties to Pedestrians 4.23
      - (7) Duty to Stop and Render Aid; Hit-and-Run Accidents 4.24
      - (8) Driving Under Influence of Alcohol or Drug 4.25
  - 3. Intentional, Willful, and Reckless Misconduct 4.26
  - 4. Duty to Riders in Vehicle 4.27
- B. Owners
  - 1. Vicarious Liability for Permissive Use 4.28
    - a. Liability Limits 4.29
    - b. Who Is an Owner
      - (1) Co-Owners; Legal, Registered, and True Owners; Personal Representatives 4.30
      - (2) Spouses 4.31
      - (3) Effect of Sale; Transfer Requirements 4.32
    - c. Permission to Use Vehicle 4.33
      - (1) Implied Permission 4.34
      - (2) Restrictions on Permission 4.35
      - (3) Use by Subpermittee 4.36
    - d. Availability of Driver’s Defenses to Owner 4.37
  - 2. Negligent Entrustment 4.38
  - 3. Failure to Equip and Maintain Safe Vehicle 4.39
  - 4. Failure to Take Precautions Against Theft 4.40
- C. Adults Liable for Minors’ Fault
  - 1. Signing Minor’s Driver’s License Application 4.41
  - 2. Permitting Minor to Operate Vehicle 4.42
  - 3. Liability Limits 4.43
- D. Supervisors of Drivers With Instruction Permits 4.44
- E. Employers and Principals
  - 1. Respondeat Superior 4.45
    - a. Distinguishing Employee From Independent Contractor 4.46
      - (1) Right to Control 4.47
      - (2) Right to Fire or to Quit 4.48
      - (3)  Special Occupations
        
        (a)  Truckers; Delivery Drivers  4.49
        
        (b)  Salesmen; Retailers  4.50
      - (4) Dual Employment; General and Special Employment 4.51
      - (5) Partners and Joint Venturers 4.52
    - b. Scope of Employment 4.53
      - (1) Inference From Ownership of Vehicle 4.54
      - (2) Deviation From Duty or Route; Disobedience of Employer’s Rule or Instruction 4.55
      - (3) Going to and Coming From Place of Employment 4.56
      - (4) Special Errands; Social Functions 4.57
  - 2. Employer’s Personal Negligence
    - a. Entrusting Vehicle to Unfit Driver 4.58
    - b. Failing to Equip or Maintain Vehicle 4.59
  - 3. Liability for Independent Contractors’ Fault
    - a. Public Franchise Rule; Carriers 4.60
    - b. Contractor Hired to Do Dangerous Work 4.61
    - c. Negligent Hiring 4.62
- F. Persons Furnishing Alcoholic Beverages 4.63
- G. Service Stations, Shops, and Repairers 4.64
- H. Law Enforcement Officers; Other Persons 4.65
III. DEFENSES: INJURED PERSON’S FAULT
- A. Contributory Negligence 4.66
  - 1. Riders
    - a. Failing to Observe and Warn of Danger 4.67
    - b. Interfering With Driver 4.68
    - c. Riding in Unsafe Vehicle or With Unfit Driver 4.69
    - d. Imputed Driver’s Negligence 4.70
    - e. Failing to Use Seatbelt 4.71
  - 2. Pedestrians
    - a. Duties Generally 4.72
    - b. Minors 4.73
  - 3. Workers on Roadway 4.74
  - 4. Avoiding Application of Contributory Negligence
    - a. Rescue Doctrine 4.75
    - b. Defendant’s Willful Misconduct 4.76
- B. Assumption of Risk
  - 1. General Principles 4.77
  - 2. Rider’s Consent to Driver’s Conduct 4.78
  - 3. Firefighter’s Rule 4.79
- C. Plaintiff’s Willful Misconduct 4.80
- D. Felons; Uninsured and Drunk Drivers 4.81
IV. POLICE PURSUITS
- A. Immunities Under the Vehicle Code 4.82
- B. 42 USC §1983 4.83
V. SAMPLE FORMS
- A. Form: Sample Request for Client’s Billing and Medical Records 4.84
- B. Form: Sample Letter Advising Defendant of Client’s Representation by Attorney 4.85
- C. Form: Sample Letter Advising Defendant’s Insurance Carrier of Client’s Representation by Attorney 4.86
- D. Form: Sample Settlement Demand Letter to Defendant’s Insurance Carrier 4.87
- E. Form: Sample Complaint for Damages in Automobile Collision Case (Judicial Council Form PLD-PI-001 and Attachments) 4.88

Carriers

I. INTRODUCTION
- A. Scope of Chapter 5.1
- B. Civil Code Definitions
  - 1. Carriage; Passenger-Carrier Relationship 5.2
  - 2. Distinctions Affecting Duty 5.3
    - a. Liability of Uber Drivers 5.3A
    - b. Liability of Private Motor Carriers 5.3B
- C. Obligation to Carry 5.4
- D. Kinds of Conveyances 5.5
II. CARRYING PASSENGERS FOR REWARD
- A. Carrier’s Duties
  - 1. Duty to Use Utmost Care and Diligence 5.6
  - 2. Duty to Provide and Maintain Safe Equipment 5.7
  - 3. Duty to Protect Passengers From Assault 5.8
- B. Duration of Passenger Status
  - 1. Boarding 5.9
  - 2. Alighting 5.10
  - 3. In Stations 5.11
  - 4. Duties When Assisting Passengers 5.12
- C. Proving Breach: Res Ipsa Loquitur 5.13
  - 1. Movements of Carrier’s Vehicle 5.14
  - 2. Collision With Another Vehicle 5.15
  - 3. Failure of Carrier’s Equipment 5.16
  - 4. Conditional Res Ipsa Loquitur 5.17
III. CARRYING PASSENGERS WITHOUT REWARD 5.18
IV. CARRYING FREIGHT
- A. Carriers’ Duties
  - 1. Duties of “For Reward” and Common Freight Carriers 5.19
  - 2. Duties of Gratuitous and Private Freight Carriers 5.20
- B. Liability Under Federal Interstate Commerce Law 5.21
V. CARRIERS’ DEFENSES
- A. Passengers’ Injury Claims
  - 1. Contractual Limitations; Design Immunity 5.22
  - 2. Passenger’s Contributory Negligence 5.23
    - a. Boarding; Alighting; Leaving Seat 5.24
    - b. Riding or Protruding Outside Vehicle 5.25
    - c. Conduct at Station 5.26
  - 3. Assumption of Risk; Exculpatory Agreements 5.27
- B. Shippers’ Claims for Damage to or Loss of Freight or Baggage
  - 1. Contractual Liability Limits 5.28
  - 2. Liability Limits in Bills of Lading or Shipping Documents 5.29
  - 3. Statutory Liability Limits; COGSA 5.30
  - 4. Other Defenses 5.31
VI. Sample Forms
- A. Form: Sample Client Authorization to Release Medical Information 5.32
- B. Form: Sample Complaint for Damages—Personal Injuries Based on Carrier’s Negligence (Judicial Council Form PLD-PI-001) 5.33
- C. Form: Sample Plaintiff’s Initial Special Interrogatories—Personal Injuries in Carrier Liability Case 5.34
- D. Form: Sample Plaintiff’s Letter Proposing Settlement—Personal Injuries in Carrier Liability Case 5.35

Construction Work

I. OWNERS’ AND GENERAL CONTRACTORS’ LIABILITY
- A. Liability to Workers
  - 1. Duty to Use Ordinary Care 6.1
    - a. Failure to Warn of Dangers 6.2
    - b. Failure to Correct Dangerous Conditions 6.3
  - 2. Violation of Safety Statute or Regulation 6.4
    - a. Cases Under 1972–2000 Law [Deleted] 6.5
    - b. Cases Under Pre-1972 Law [Deleted] 6.6
  - 3. Contractual Safety Obligations 6.7
- B. Liability to Other Construction Site Visitors 6.8
- C. Liability for Acts of Independent Contractors and Subcontractors
  - 1. General Rule: Nonliability 6.9
  - 2. Bases for Liability
    - a. Control; Hiring; Inspection; Supplying Defective Equipment 6.10
    - b. Negligent Actor Was Employee, Not Independent Contractor 6.11
    - c. Peculiar Risk Doctrine: Failure to Take Special Precautions for Dangerous Work 6.12
- D. Liability After Completion of Work
  - 1. Negligent Performance 6.13
  - 2. Strict Liability for Defects 6.14
  - 3. Breach of Warranty 6.15
II. HIGHWAY CONTRACTORS’ LIABILITY TO TRAVELERS 6.16
III. DEFENSES
- A. Missing or Inadequate Certificate of Merit 6.17
- B. Statutes of Limitations 6.18
  - 1. Patent Deficiencies: 4 Years 6.19
  - 2. Latent Deficiencies: 10 Years 6.20
- C. Employer-Employee Relationship (Workers’ Compensation Exclusivity) 6.21
- D. Contributory Negligence; Causation 6.22
- E. Assumption of Risk; Firefighter’s Rule 6.23
- F. Employer’s Concurrent Fault 6.24
- G. Other Tortfeasors’ Fault (Proposition 51) 6.25
IV. INDEMNIFICATION 6.26
V. Sample Forms
- A. Form: Sample Complaint for Damages in Construction Case 6.27
- B. Form: Sample Plaintiff’s Initial Requests for Admission 6.28
- C. Form: Sample Plaintiff’s Statement of Damages 6.29

Electricity

I. LIABILITY
- A. Basic Duty: Care Commensurate With Danger 7.1
- B. Power Lines
  - 1. Insulation; Clearance 7.2
  - 2. Inspection of Lines; Constructive Notice of Defects and Changes 7.3
  - 3. Protecting Against Foreseeable Risks 7.4
  - 4. Nondelegable Duties 7.5
- C. Strict Product Liability 7.6
- D. Duty Based on Statute, Regulation, or Order 7.7
- E. Liability of Owners and Contractors 7.8
- F. Persons to Whom Duty Owed 7.9
II. DEFENSES
- A. Contributory Negligence 7.10
- B. Assumption of Risk 7.11
- C. Plaintiff’s Violation of Statute, Regulation, or Order 7.12
- D. Recreational Use Immunity 7.13

Governmental Liability

I. INTRODUCTION
- A. Scope of Chapter 8.1
- B. General Principles 8.2
II. LIABILITY FOR PUBLIC EMPLOYEES’ CONDUCT
- A. Respondeat Superior
  - 1. Ascertaining Employee Status 8.3
  - 2. Determining Whether Employee Acting in Scope of Employment 8.4
  - 3. Liability Based on Negligence: Breach of Duty of Care 8.5
  - 4. Vicarious Liability for Intentional Torts 8.6
  - 5. Effect of Immunities 8.7
- B. Need to Provide Defense, Pay Damages 8.8
- C. Liability for Failure to Perform Mandatory Duty 8.9
- D. Liability for Acts of Independent Contractors or Joint Venturers 8.10
- E. General Immunities
  - 1. Discretionary Acts and Omissions of Public Employees 8.11
  - 2. Other General Immunities 8.12
- F. Liabilities and Immunities in Specific Functional Areas
  - 1. Police and Correctional Activities
    - a. Liabilities 8.13
    - b. Immunities 8.14
  - 2. Fire Protection Activities
    - a. Liability 8.15
    - b. Immunities 8.16
  - 3. Other Areas of Liability 8.17
III. LIABILITY FOR DANGEROUS CONDITION OF PUBLIC PROPERTY
- A. Liability in General 8.18
  - 1. Definition of Dangerous Condition 8.19
  - 2. Substantial Risk of Injury 8.20
  - 3. Conditions on Adjacent Property 8.21
  - 4. Due Care Analysis 8.22
  - 5. Reasonably Foreseeable Manner of Use 8.23
  - 6. Causation 8.24
  - 7. Actual or Constructive Notice 8.25
- B. Available Defenses 8.26
  - 1. Comparative Negligence 8.27
  - 2. Assumption of Risk 8.28
  - 3. Third Party Negligence 8.29
- C. Statutory Immunities
  - 1. Design Immunity
    - a. Elements and Burdens of Proof 8.30
    - b. Loss of Immunity Due to Changed Conditions 8.30A
  - 2. Traffic Signals, Signs, and Markings; Warning Signals 8.31
  - 3. Effect of Weather 8.32
  - 4. Natural Condition of Unimproved Property 8.33
    - a. Natural Conditions 8.34
    - b. Roads and Trails, Paved and Unpaved 8.35
  - 5. Recreational Use Immunity 8.36
  - 6. Reservoirs, Canals, Conduits, and Drains 8.37
IV. CLAIMS AGAINST PUBLIC ENTITIES AND EMPLOYEES
- A. General Requirements
  - 1. When and How Claim Must Be Presented 8.38
  - 2. When Claim Accrues 8.39
  - 3. Public Entity Must Provide Necessary Information 8.40
- B. Form and Content of Claim 8.41
- C. Consideration of Claim
  - 1. Response Time to Grant or Deny Claim 8.42
  - 2. Reconsideration of Claim 8.43
- D. Public Entity Must Notify Claimant of Defects 8.44
- E. Assessing Substantial Compliance 8.45
- F. Estoppel From Invoking Claims Statute 8.46
- G. Grounds and Procedure for Late Claim Relief
  - 1. General Requirements for Application 8.47
  - 2. Extensions of Time 8.48
  - 3. If Application to File Late Claim Denied 8.49
  - 4. Application Granted on Showing of Mistake, Inadvertence, Surprise, or Excusable Neglect 8.50
  - 5. Effect of Minority 8.51
  - 6. Effect of Physical or Mental Disability 8.52
  - 7. Death of Injured Person 8.53
- H. When Insurer Involved 8.54
V. ACTIONS AGAINST PUBLIC ENTITIES AND EMPLOYEES
- A. Must Present Claim Before Filing Suit
  - 1. Action Against Public Entity 8.55
  - 2. Action Against Public Employee 8.56
- B. Time Limitations 8.57
  - 1. Application for Late Claim Relief
    - a. When Application Granted 8.58
    - b. Petition to Sue After Late Claim Denied 8.59
  - 2. Criminal Charge Pending 8.60
- C. Award of Defense Costs for Action Not Brought or Maintained in Good Faith or With Reasonable Cause 8.61
- D. Damages Assessed Against Employee 8.62
- E. Punitive Damages 8.63
- F. Available Defenses 8.64
- G. Cross-Claims
  - 1. Claim Filing Requirements 8.65
  - 2. Comparative Indemnity; Proposition 51 8.66
VI. Sample Forms
- A. Form: Sample Petition for Relief From Claim Requirement 8.67
- B. Form: Sample Complaint for Damages for Personal Injury—Dangerous Condition of Public Property 8.68
- C. Form: Sample Answer to Complaint for Damages—Governmental Liability Case (Judicial Council Form PLD-PI-003) 8.69
- D. Form: Sample Memorandum in Support of Demurrer to Complaint 8.70

Medical Malpractice

I. MEDICAL DOCTORS (PHYSICIANS AND SURGEONS)
- A. Grounds for Professional Liability
  - 1. Negligence in Diagnosis or Treatment
    - a. Duty to Possess and Use Professional Knowledge, Skill, and Care 9.1
      - (1) Standard for Medical Specialists 9.2
      - (2) Statutory Duties 9.3
      - (3) Doctors’ Respondeat Superior Liability 9.4
      - (4) No Strict Liability; Mistakes; Natural Course of Disease 9.5
    - b. Duty to Consult Specialist or Refer Patient 9.6
    - c. Duty to Hospitalize 9.7
    - d. Duty to Attend Diligently; Abandonment 9.8
    - e. Duties in Prescribing and Administering Drugs and Devices 9.9
    - f. Duty to Prevent Patient From Harming Self or Others 9.10
    - g. Duty to Inform Patient
      - (1) Risks of Treatment 9.11
      - (2) Risks of Nontreatment 9.12
      - (3) Patient’s Medical Condition and Nonmedical Interests; Life Expectancy 9.13
      - (4) Doctor’s Interest in Suggested Treatment 9.14
      - (5) Statutes Affecting Duty to Inform 9.15
  - 2. Battery: Unauthorized Surgery or Treatment 9.16
  - 3. Sexual Contact With, or Harassment of, Patient 9.17
  - 4. Breach of Guaranty or Warranty of Result 9.18
  - 5. Fraud (Misrepresentation) 9.19
  - 6. Inflicting Emotional Distress 9.20
  - 7. Invading Patient’s Privacy Rights 9.21
  - 8. Liability in Reproductive Situations
    - a. Birth of Disabled Child; Prenatal Negligence 9.22
    - b. Birth of Unwanted Child 9.23
- B. Causation: Reasonable Medical Probability 9.24
  - 1. Aggravation; Reduced (or Lost) Chance of Survival 9.25
  - 2. Multiple Causes of Injury 9.26
- C. Preliminary Procedures in Malpractice Lawsuits
  - 1. 90-Day Notice of Intention to Sue 9.27
    - a. Required Content; Effect of Failure to Serve; Manner of Service 9.27A
    - b. When Serving Notice Tolls Statute of Limitations 9.27B
    - c. When Service of Notice Does Not Toll Statute of Limitations 9.27C
  - 2. Giving Disclosure Authorization With Presuit Settlement Offer 9.28
  - 3. Filing Amended Complaint, Showing Probability of Prevailing, When Claiming Punitive Damages 9.29
- D. Pleading Medical Malpractice 9.30
- E. Proving Medical Negligence and Causation 9.31
  - 1. Expert Medical Testimony 9.32
    - a. Expert’s Qualifications 9.33
      - (1) Specialty or Field of Practice 9.34
      - (2) Hospital Emergency Department Doctor 9.35
      - (3) Locality 9.36
    - b. Defendant’s Testimony and Admissions 9.37
    - c. Warnings in Labels and Brochures 9.38
  - 2. Common Knowledge Exception to Expert Testimony Requirement 9.39
  - 3. Res Ipsa Loquitur: Elements; Evidence; Applicability 9.40
    - a. Probability That Injury Was Negligently Caused
      - (1) Shown by Expert Testimony 9.41
      - (2) Based on Common Knowledge 9.42
    - b. Defendant’s Control of Instrumentality; Unconscious Patient; Multiple Defendants 9.43
    - c. Patient’s (or Plaintiff’s) Conduct 9.44
    - d. Rebutting Res Ipsa Loquitur 9.45
  - 4. Doctor’s Custom and Practice 9.46
  - 5. Impeachment Evidence 9.47
  - 6. Hospital Staff Committee Records and Proceedings 9.48
II. OTHER PRACTITIONERS
- A. Dentists 9.49
- B. Osteopaths 9.50
- C. Chiropractors and Other Drugless Practitioners 9.51
- D. Chiropodists or Podiatrists 9.52
- E. Nurses 9.53
- F. Pharmacists 9.54
- G. Blood Banks; Testing Laboratories 9.55
- H. Emergency Medical Technicians; 911 Services 9.56
III. HOSPITALS, SANITARIUMS, AND REST HOMES
- A. Grounds for Professional Liability
  - 1. General Standard of Care 9.57
  - 2. Standard for Adult and Elder Abuse 9.58
  - 3. Duty to Furnish Competent Nurses, Physicians, and Other Personnel 9.59
  - 4. Hospitals’ Respondeat Superior Liability 9.60
  - 5. Diligence in Attending Patient or in Calling Physician 9.61
  - 6. Duty to Provide Emergency Service and Care or Survival Services 9.62
  - 7. Defective Equipment; Dangerous Conditions 9.63
  - 8. Other Injuries, Results, or Treatment 9.64
- B. Pleading Hospital Negligence; Preliminary Procedures 9.65
- C. Proving Negligence and Causation
  - 1. Need for Expert Testimony; Common Knowledge 9.66
  - 2. Res Ipsa Loquitur 9.67
IV. HEALTH MAINTENANCE ORGANIZATIONS AND OTHERS 9.68
V. DEFENSES
- A. Absence of Doctor-Patient Relationship 9.69
- B. Patient’s Contributory Fault; Assumption of Risk; Duty to Mitigate Damages 9.70
- C. Statute of Limitations 9.71
  - 1. Separate Trial of Statute of Limitations Defense 9.72
  - 2. Three-Year Period: Date of Injury; Effect of Fraud, Concealment, or Object Left in Patient 9.73
  - 3. One-Year Period: Date of Injury; Discovery of Cause of Action 9.74
  - 4. Minor’s Actions 9.75
  - 5. Actions Against Hospitals and Others 9.76
- D. Exculpatory Agreements 9.77
- E. Arbitration Agreements 9.78
  - 1. Formal Requirements 9.79
  - 2. Persons Bound by Agreement to Arbitrate 9.80
  - 3. Claims and Causes of Action Covered by Arbitration Agreements 9.81
  - 4. Procedural Aspects of Arbitration 9.82
- F. Recovery From (or Release of) Initial Tortfeasor; Indemnity 9.83
- G. Good Samaritan Statutes 9.84
VI. MEDICAL INJURY COMPENSATION REFORM ACT (MICRA) 9.85
- A. Ceiling on Noneconomic Damages 9.86
- B. Restrictions on Plaintiff’s Attorney Fees 9.87
- C. Collateral Source Payments 9.88
- D. Periodic Payment of Future Damages 9.89
VII. Sample Forms
- A. Form: Sample Notice of Claim (“90-Day Letter”) to Health Care Provider 9.90
- B. Form: Sample Demand Letter Requesting Compensation for Personal Injuries and Proposing Settlement 9.91
- C. Form: Sample Complaint for Damages—Personal Injuries Based on Medical Negligence 9.92
- D. Form: Sample Plaintiff’s Memorandum Opposing Defendant’s Demurrer 9.93

Premises Liability

I. INTRODUCTION
- A. Scope of Chapter 10.1
- B. Liability for Furnishing Alcoholic Beverages 10.2
II. OWNERS’ LIABILITY TO VISITORS
- A. Ordinary Care Standard (Rowland v Christian) 10.3
- B. Effect of Visitor’s Status 10.4
- C. Owner’s Conduct; Active Operations 10.5
- D. Owner’s Liability for Others’ Conduct
  - 1. Owner’s Underlying Duty 10.6
  - 2. Others’ Criminal Acts; Foreseeability; Prior Similar Instances 10.7
    - a. Duty to Hire Security Guards 10.8
    - b. Other Cases Applying Ann M. Balancing 10.9
  - 3. Establishing Legal (Proximate) Cause 10.10
  - 4. Liability to Criminal Visitors 10.11
- E. Owner’s Liability for Unsafe Condition 10.12
  - 1. Extent of Premises for Which Owner Is Responsible 10.13
  - 2. Knowledge of Condition; Inspection 10.14
  - 3. Nondelegability of Duty to Maintain; Statutory Violation 10.15
  - 4. Warnings; Obvious Dangers 10.16
  - 5. Duty to Rescue or Render Aid 10.17
  - 6. Res Ipsa Loquitur 10.17A
- F. Duties to Particular Visitors
  - 1. Minors 10.18
  - 2. Firefighters, Peace Officers, and Emergency Medical Personnel (Firefighter’s Rule) 10.19
    - a. Exceptions
      - (1) Independent Acts or Conditions 10.20
      - (2) Intentional Injury 10.21
    - b. Ultrahazardous Activities 10.22
    - c. Private Safety Employees 10.23
  - 3. Recreational Users
    - a. Elements of Owner’s Recreational Use Immunity 10.24
      - (1) Interest in Real Property; “Entry or Use” 10.25
      - (2) Recreational Use or Purpose; Suitability 10.26
    - b. Exceptions to Immunity
      - (1) Consideration; Express Invitation 10.27
      - (2) Owner’s Willful or Malicious Misconduct 10.28
  - 4. Resort, Amusement Park, and Swimming Pool Users 10.29
III. LANDLORDS’ LIABILITY TO TENANTS AND THEIR GUESTS
- A. Ordinary Care Standard (Rowland v Christian) 10.30
- B. Role of Strict Product Liability 10.31
- C. Particular Situations
  - 1. Rental for Public Purpose 10.32
  - 2. Area Under Landlord’s Control 10.33
  - 3. Condominiums and Common Interest Developments 10.34
  - 4. Dangerous Condition Known to Landlord 10.35
  - 5. Duty or Undertaking to Repair 10.36
  - 6. Duties Imposed by Statute or Ordinance 10.37
  - 7. Tenants’ and Others’ Activities 10.38
IV. TENANTS’ DUTIES TO LANDLORDS AND OTHER TENANTS 10.39
V. INJURIES ON PUBLIC SIDEWALKS OR STREETS
- A. Adjacent Owners’ Liability
  - 1. Sidewalk Defects 10.40
  - 2. Conditions Affecting Vehicular Traffic 10.41
- B. Street Vendors’ Liability 10.42
VI. DEFENSES
- A. Exculpatory Clauses
  - 1. Limiting Owners’ Liability to Visitors 10.43
  - 2. Limiting Landlords’ Liability to Tenants 10.44
- B. Contributory Fault 10.45
- C. Assumption of Risk; Sports Participants and Spectators 10.46
VII. Sample Forms
- A. Form: Sample Initial Letter to Defendant Regarding Plaintiff’s Injury and Requesting Insurance Information 10.47
- B. Form: Sample Demand Letter Requesting Compensation for Personal Injuries and Proposing Settlement 10.48
- C. Form: Sample Complaint for Damages—Personal Injuries Based on Premises Liability (Judicial Council Form PLD-PI-001) 10.49
- D. Form: Sample Plaintiff’s Initial Special Interrogatories—Personal Injuries in Premises Liability Case 10.50

Product Liability

I. STRICT PRODUCT LIABILITY
- A. Basic Concepts; Terminology 11.1
- B. Elements of Strict Product Liability 11.2
  - 1. Product Being Used in Foreseeable Way 11.3
  - 2. Product Defective When Marketed 11.4
    - a. Types of Product Defects 11.5
    - b. Proving Product Was Defective 11.6
      - (1) Manufacturing Defects 11.7
      - (2)  Design Defects  11.8
        
        (a)  Consumer Expectations Not Met  11.9
        
        (b)  Risks of Design Outweigh Benefits  11.10
        
        (c)  Evidence of Postinjury Design Changes  11.11
        
        (d)  Other Accidents Involving Same Product  11.12
        
        (e)  Absence of Safety Device  11.13
      - (3)  Absence of Adequate Warnings or Instructions  11.14
        
        (a)  Adequacy of Warning  11.15
        
        (b)  Obvious and Known Dangers; Sophisticated Users  11.16
        
        (c)  Manufacturer’s Knowledge; State-of-the-Art Evidence; Others’ Products  11.17
        
        (d)  Postaccident Warnings  11.18
      - (4) Pharmaceuticals; Medical Implants and Devices [Deleted] 11.19
  - 3. Defect Caused Injury or Damage
    - a. In General 11.20
    - b. Causation in Asbestos Cases 11.20A
    - c. Causation in Toxic Tort Cases 11.20B
    - d. Product’s “Crashworthiness” 11.21
    - e. Market Share Liability 11.22
  - 4. Consumer’s Harm or Loss; Damages
    - a. Bodily Injury; Wrongful Death; Emotional Distress 11.23
    - b. Property Damage; Commercial Loss 11.24
    - c. Punitive Damages 11.25
- C. Persons Who May Recover
  - 1. Purchaser, User, Bystander, Employer 11.26
  - 2. Corporations; Large Purchasers 11.27
  - 3. Supplier’s Employee 11.28
- D. Persons Who May Be Liable
  - 1. Persons Engaged in Marketing Product 11.29
  - 2. Lessors and Bailors 11.30
  - 3. Successors in Interest 11.31
  - 4. Out-of-State Suppliers 11.32
  - 5. Dealers in Used Goods 11.33
  - 6. Auctioneers 11.34
- E. Product Types 11.35
  - 1. Blood and Biological Products 11.36
  - 2. Houses and Lots 11.37
  - 3. Prepared Foods 11.38
  - 4. Tobacco 11.39
- F. Indemnity Among Suppliers 11.40
- G. Defenses
  - 1. Statute of Limitations 11.41
  - 2. Contributory Fault; Misuse of Product 11.42
  - 3. Assumption of Risk 11.43
  - 4. Adequate Warning Given 11.44
  - 5. Federal Statutory Immunity or Preemption 11.45
  - 6. State Statutory Immunities 11.46
  - 7. Product Unavoidably Unsafe 11.47
II. NEGLIGENCE LIABILITY
- A. Negligence as Alternative to Strict Product Liability 11.48
  - 1. Persons to Whom Duty of Care Owed 11.49
  - 2. Duty in Design and Manufacture 11.50
  - 3. Responsibility for Another’s Product; Parts 11.51
  - 4. Duty in Installation and Maintenance 11.52
  - 5. Supplier’s Duty to Inspect and Warn
    - a. Manufacturers and Sellers 11.53
    - b. Bailors 11.54
  - 6. Bailee’s Liability 11.55
- B. Proof
  - 1. Product Failure; Res Ipsa Loquitur 11.56
  - 2. Presumption of Negligence From Violation of Statute or Regulation 11.57
  - 3. Causation; Lapse of Time 11.58
- C. Defenses
  - 1. Contributory Fault 11.59
  - 2. Assumption of Risk 11.60
  - 3. Exculpatory Agreements and Disclaimers 11.61
III. WARRANTY LIABILITY
- A. Effect of Strict Product Liability on Warranty Rules
  - 1. Sales 11.62
  - 2. Bailments 11.63
- B. Elements of Warranty Liability
  - 1. Implied Warranty of Fitness for Particular Purpose 11.64
  - 2. Implied Warranty of Merchantability 11.65
  - 3. Express Warranties 11.66
  - 4. Privity of Contract 11.67
  - 5. Notice of Breach of Warranty 11.68
  - 6. Measure of Damages; Agreements Limiting Remedy 11.69
- C. Defenses
  - 1. Disclaimers and Limitations of Warranty 11.70
  - 2. Contributory Negligence; Assumption of Risk 11.71
  - 3. Statute of Limitations 11.72
IV. MISREPRESENTATION 11.73
V. Sample Forms
- A. Form: Sample Complaint for Damages—Personal Injuries in Product Liability Case 11.74
- B. Form: Sample Plaintiff’s Initial Special Interrogatories to Defendant in Product Liability Case 11.75
- C. Form: Sample Plaintiff’s Initial Demand to Defendant for Production in Product Liability Case 11.76
- D. Form: Sample Plaintiff’s Letter Proposing Settlement—Personal Injuries in Product Liability Case 11.77
- E. Form: Sample Plaintiff’s Memorandum Opposing Defendant’s Motion in Limine 11.78

Railroad Crossings

I. SCOPE OF CHAPTER 12.1
II. BASIC STANDARDS OF CARE
- A. Reasonable Care Under Circumstances 12.2
- B. Willful Misconduct 12.3
III. DUTIES IN OPERATING TRAINS
- A. Reasonable Warning of Approach 12.4
- B. Regulating Speed 12.5
- C. Lookout for Crossing Traffic 12.6
- D. Duties at Private Roads and Customary Crossings 12.7
IV. DUTIES IN MAINTAINING CROSSINGS
- A. Installing Warning Systems 12.8
- B. Designing, Maintaining, and Operating Crossing Protection 12.9
V. DEFENSES
- A. Contributory Negligence 12.10
  - 1. Duty to Stop, Look, and Listen (Modified Rule) 12.11
  - 2. Disregarding or Relying on Crossing Signal, Gate, Flagman, or Warning 12.12
  - 3. Vehicle Passengers’ Negligence 12.13
- B. Assumption of Risk 12.14

Pharmaceuticals and Medical Devices

I. STRICT PRODUCT LIABILITY
- A. Elements 13.1
  - 1. No Strict Liability for Design Defects 13.2
  - 2. Manufacturing Defects 13.3
  - 3. Duty to Warn
    - a. Elements 13.4
    - b. Learned-Intermediary Rule 13.5
    - c. No Duty to Warn of Dangers Obvious or Known to Medical Community 13.6
    - d. Exception for Nonprescription Drugs 13.7
    - e. Off-Label Use 13.8
  - 4. Product Used in Foreseeable Manner 13.9
- B. Proving Causation
  - 1. Expert Testimony 13.10
  - 2. Causation in Failure to Warn Cases Must Be Proven Through the Physician 13.11
  - 3. Res Ipsa Loquitur 13.12
- C. Damages
  - 1. Medical Monitoring 13.13
  - 2. Fear of Developing Cancer or Other Serious Illness 13.14
- D. Persons Who May Be Liable 13.15
  - 1. Physicians Not Liable 13.16
  - 2. Dentists Not Liable 13.17
  - 3. Hospitals Not Liable 13.18
  - 4. Pharmacy Not Liable 13.19
II. NEGLIGENCE
- A. Negligent Design 13.20
- B. Negligent Manufacturing Claims 13.21
- C. Claims for Negligent Failure to Warn 13.22
- D. Postsale Duty to Warn or Recall 13.23
- E. Presumptions of Negligence (Negligence Per Se)
  - 1. Based on Violation of Statute or Regulation 13.24
  - 2. Buckman and Preemption of Negligence Per Se Claims 13.25
III. COORDINATION IN MASS TORT LITIGATION 13.26
IV. FEDERAL PREEMPTION 13.27
- A. The Food, Drug, and Cosmetic Act and the Medical Device Amendments 13.28
  - 1. Three Classes of Medical Devices 13.29
  - 2. Exception to Premarket Approval of Certain Class III Devices 13.30
- B. Preemption of Certain Medical Device Claims
  - 1. Express Preemption Under the MDA 13.31
  - 2. Preemption of Claims for Premarket-Approved Class III Devices 13.32
  - 3. Preemption of Private Right of Action to Enforce FDA Regulations 13.33
  - 4. No Preemption of Non-Premarket-Approved Devices 13.34
  - 5. No Preemption of “Parallel Claims” 13.35
  - 6. No Preemption of Warranty and Consumer Claims 13.36
  - 7. Implied Preemption 13.37
- C. Preemption of Prescription Pharmaceutical Claims
  - 1. No Express Preemption of Pharmaceutical Claims 13.38
  - 2. Implied Preemption and Brand-Name Drug Manufacturers 13.39
  - 3. Implied Preemption and Generic Drug Manufacturers 13.40
- D. The Effect of a Recall on Preemption 13.41

CALIFORNIA TORT GUIDE

(3d Edition)

February 2017

TABLE OF CONTENTS

File Name	Book Section	Title
CH03	Chapter 3	Animals
03-036	§3.36	Sample Demand Letter Requesting Compensation for Personal Injuries
CH04	Chapter 4	Automobiles
04-084	§4.84	Sample Request for Client’s Billing and Medical Records
04-085	§4.85	Sample Letter Advising Defendant of Client’s Representation by Attorney
04-086	§4.86	Sample Letter Advising Defendant’s Insurance Carrier of Client’s Representation by Attorney
04-087	§4.87	Sample Settlement Demand Letter to Defendant’s Insurance Carrier
CH05	Chapter 5	Carriers
05-032	§5.32	Sample Client Authorization to Release Medical Information
05-034	§5.34	Sample Plaintiff’s Initial Special Interrogatories—Personal Injuries in Carrier Liability Case
05-035	§5.35	Sample Plaintiff’s Letter Proposing Settlement—Personal Injuries in Carrier Liability Case
CH06	Chapter 6	Construction Work
06-027	§6.27	Sample Complaint for Damages in Construction Case
06-028	§6.28	Sample Plaintiff’s Initial Requests for Admission
06-029	§6.29	Sample Plaintiff’s Statement of Damages
CH08	Chapter 8	Governmental Liability
08-067	§8.67	Sample Petition for Relief From Claim Requirement
08-068	§8.68	Sample Complaint for Damages for Personal Injury—Dangerous Condition of Public Property
08-070	§8.70	Sample Memorandum in Support of Demurrer to Complaint
CH09	Chapter 9	Medical Malpractice
09-090	§9.90	Sample Notice of Claim (“90-Day Letter”) to Health Care Provider
09-091	§9.91	Sample Demand Letter Requesting Compensation for Personal Injuries and Proposing Settlement
09-092	§9.92	Sample Complaint for Damages—Personal Injuries Based on Medical Negligence
09-093	§9.93	Sample Plaintiff’s Memorandum Opposing Defendant’s Demurrer
CH10	Chapter 10	Premises Liability
10-047	§10.47	Sample Initial Letter to Defendant Regarding Plaintiff’s Injury and Requesting Insurance Information
10-048	§10.48	Sample Demand Letter Requesting Compensation for Personal Injuries and Proposing Settlement
10-050	§10.50	Sample Plaintiff’s Initial Special Interrogatories—Personal Injuries in Premises Liability Case
CH11	Chapter 11	Product Liability
11-074	§11.74	Sample Complaint for Damages—Personal Injuries in Product Liability Case
11-075	§11.75	Sample Plaintiff’s Initial Special Interrogatories to Defendant in Product Liability Case
11-076	§11.76	Sample Plaintiff’s Initial Demand to Defendant for Production in Product Liability Case
11-077	§11.77	Sample Plaintiff’s Letter Proposing Settlement—Personal Injuries in Product Liability Case
11-078	§11.78	Sample Plaintiff’s Memorandum Opposing Defendant’s Motion in Limine

Selected Developments

February 2019 Update

There have been several interesting developments in the area of torts over the last year. Some of the most important are summarized below.

General Principles

The California Supreme Court has granted review in Southern Cal. Gas Leak Cases (review granted Feb. 28, 2018, S246669; opinion at 18 CA5th 581 to remain published and citable until further order) to determine whether a plaintiff who is harmed by a manmade environmental disaster can state a claim for negligence against the gas company that allegedly caused the disaster if the damages sustained are purely economic. The Second Appellate District determined as a matter of law that the gas company did not owe a duty to prevent the business plaintiffs’ economic losses due to a decline in commercial activity as a result of neighborhood residents temporarily relocating after the gas leak. See §1.7 for discussion.

In Regents of Univ. of Cal. v Superior Court (2018) 4 C5th 607, the California Supreme Court held that a university had a legal duty to protect its students from foreseeable violence during curricular activities. See §§1.10, 1.23, 1.29, 10.38.

In Liberty Surplus Ins. Corp. v Ledesma & Meyer Constr. Co. (2018) 5 C5th 216, the California Supreme Court held that employers may legitimately expect insurance coverage for negligent hiring, retention, or supervision claims even when the employee intentionally molested a middle school student. See §1.12.

A skier’s injury during descent on a rescue toboggan involved an inherent risk of injury included in the sport of skiing itself such that primary assumption of risk applied. See citation of Martine v Heavenly Valley L.P. (2018) 27 CA5th 715 in §1.49.

When a marathoner died from cardiac arrest at the finish line of a race, the alleged negligence in provision of emergency medical services could have exposed participant to increased risk of harm over and above that generally inherent in the activity itself, such that the primary assumption of risk defense did not apply. See citation of Hass v RhodyCo Prods. (2018) 26 CA5th 11 in §1.52.

Automobiles

In Newland v County of Los Angeles (2018) 24 CA5th 676, the required vehicle exception did not apply to the “going and coming” rule that employees driving to or from work are usually outside the scope of employment and the employer is not liable because the vehicle in question was not required on the day of accident. See §4.56.

In Ramirez v City of Gardena (2018) 5 C5th 995, the California Supreme Court affirmed the court of appeal in finding that the immunity provided by Veh C §17004.7 is available to a public agency only if it requires that all peace officers of the agency certify in writing that they have received, read, and understand the agency’s vehicle pursuit policy, but 100 percent compliance with that requirement is not a prerequisite to receiving the immunity. The Fourth Appellate District’s previous determination in Morgan v Beaumont Police Dep’t (2016) 246 CA4th 144 that 100 percent compliance is required for immunity has been disapproved. See §4.82.

Construction Work

The California Supreme Court has granted review in Gonzalez v Mathis (review granted May 16, 2018, S247677; opinion at 20 CA5th 257 to remain published and citable until further order) to determine whether a homeowner who hires an independent contractor can be held liable in tort for injury sustained by the contractor’s employee when the homeowner does not retain control over the worksite and the hazard causing the injury was known to the contractor. See §6.10.

In McMillin Albany LLC v Superior Court (2018) 4 C5th 241, the California Supreme Court held that the legislature made the Right to Repair Act (CC §§895–945.5) the virtually exclusive remedy not just for economic loss, but also for property damage arising from construction defects. See §§6.13, 9.58.

Medical Malpractice

In Stewart v Superior Court (2017) 16 CA5th 87, the appellate court held that elders have a right to autonomy in the medical decision-making process. A hospital may be responsible for custodial neglect within the meaning of Welf & I C §15610.57 if the hospital authorizes surgery over the objection of the patient’s designee for health care decisions. See §9.58.

In Lopez v Sony Electronics, Inc. (2018) 5 C5th 627, the California Supreme Court held that CCP §340.8 supersedes CCP §340.4 for prenatal injuries resulting from exposure to toxic or hazardous materials and that the claims were tolled during the child’s minority See §9.75.

Premises Liability

The appellate court held that a restaurant has a duty to protect guests eating on a patio from black widow spiders in Coyle v Historic Mission Inn Corp. (2018) 24 CA5th 627. See §10.12.

Product Liability

In Kim v Toyota Motor Corp. (2018) 6 C5th 21, the California Supreme Court held that evidence of industry custom and practice, although not determinative of design defect, may be relevant to risk-benefit analysis of feasibility of alternative design. The Judicial Council released a new jury instruction based on Webb v Special Elec. Co. (2016) 63 C4th 167. See §§11.14, 11.29 for discussion of CACI 1249 and Webb.

Pharmaceuticals and Medical Devices

In T.H. v Novartis Pharm. Corp. (2017) 4 C5th 145, the California Supreme Court held that brand-name drug manufacturers have a duty to use ordinary care in warning about the safety risks of their drugs, regardless of whether the injured party (in reliance on the brand-name manufacturer’s warning) was dispensed the brand-name or generic version of the drug. A brand-name manufacturer’s sale of the rights to a drug does not, as a matter of law, terminate its liability for injuries foreseeably and proximately caused by deficiencies present in the warning label prior to the sale. See §§13.4, 13.22.

About the Author

PAUL PEYRAT, co-author of the Third Edition, is Managing Editor at California Worker’s Compensation Reporter. He is the author of California Worker’s Damages Practice (2d ed Cal CEB) and is the author of Chapter 12 (Time Limitations) in California Worker’s Compensation Practice (4th ed Cal CEB). Mr. Peyrat speaks, lectures, and acts as an expert witness on worker’s damages. He maintains a Sonoma, California, practice as a consultant to other lawyers, focusing on tort law and damages. Mr. Peyrat received his B.A. and J.D. from the University of Minnesota.

About the 2018 Update Authors

ROBERT ABIRI, update author of chapters 3, 4, and 8, is a partner with the firm of Abiri & Szeto LLP, with offices in Orange County and New York. Licensed to practice in California, New York, and Washington, DC, Mr. Abiri handles matters covering many major civil litigation areas, including business litigation, real estate disputes, personal injury, and wrongful death matters. Since entering law practice a decade ago, he has represented both plaintiffs and defendants, acquiring a unique grasp of the issues from both viewpoints, as well as representing both public entities and private sector/individuals. In addition to his case and trial work, Mr. Abiri has collaborated on amici curiae briefs, including one that supported a published opinion in the California Supreme Court. He has been named a Southern California “rising star” by Super Lawyers magazine for the past 4 consecutive years and is active in both legal and community-based organizations. In addition, Mr. Abiri has served as an update author for California Tort Damages (2d ed Cal CEB). He earned his undergraduate degree from the University of California, Los Angeles, and his J.D. degree from the University of California, Los Angeles, School of Law.

SUSIE INJIJIAN, update author of chapters 2, 5, and 12, founded her solo law practice, Injijian Law Office, APC, in Berkeley in 2005. For over 25 years she has been representing plaintiffs in a variety of injury cases and appeals, most notably airplane accident, cruise ship accident, and medical malpractice cases. Ms. Injijian has been honored as a California Super Lawyer and a California Lawyer of the Year. She has been recognized for her work in expanding the legal rights of passengers in numerous landmark aviation accident cases, including a victory in the United States Supreme Court. She earned her undergraduate degree from the University of California, Berkeley, and her J.D. degree from the University of San Francisco, School of Law.

CYNTHIA B. MCGUINN, update coauthor of chapters 1 and 6, is a principal with Rouda, Feder, Tietjen, & McGuinn, a San Francisco personal injury law firm. With more than 35 years’ experience as a trial attorney, her practice focuses on catastrophic personal injury matters, representing consumers and clients in diverse occupational fields and age groups. She was honored as the 2003 Trial Lawyer of the Year by the San Francisco Trial Lawyers Association and has been a Top Woman Trial Lawyer in Super Lawyer magazine since 2005. Ms. McGuinn has obtained a number of eight-figure jury verdicts, including the highest personal injury award in the history of Sonoma County in 2015. She is a member of numerous invitation-only professional associations and is a frequent lecturer to universities and legal organizations on trial practice. She earned her undergraduate degree from the University of Akron, Ohio, and her J.D. degree from Golden Gate University, San Francisco.

DANIEL B. PLEASANT, update coauthor of chapters 1 and 6, is on the staff of Rouda, Feder, Tietjen, & McGuinn, a San Francisco personal injury law firm. Working with coauthor Cynthia B. McGuinn and other firm members, he specializes in preparing cases for trial as well as in drafting pretrial motions, mediation briefs, and appellate briefs. He has worked on numerous cases that resolved for at least $1 million, including cases that were litigated through trial. Mr. Pleasant is a member of the American Association for Justice and the San Francisco Trial Lawyers Association and serves on the Executive Committee for the Bar Association of San Francisco’s Paralegal Section. Before his law firm work, Mr. Pleasant served as a Legal Officer with the United States Marine Corps. He earned his undergraduate degree (with highest honors) from Guilford College in North Carolina.

KENNETH SEEGER, update author of chapters 10, 11, and 13, is a partner in the San Francisco firm Seeger Salvas LLP. His practice focuses on litigating product liability, insurance bad faith, and commercial disputes. He has been appointed by federal and state judges to leadership positions in coordinated litigation proceedings involving recalled DePuy hips, Medtronic defibrillators, and Zicam nasal products as well as other cases. Mr. Seeger also has acted as national settlement counsel for a pharmaceutical manufacturer, helping to negotiate and implement a national class action settlement in hundreds of cases involving the drug PPA. He earned his undergraduate degree from the State University of New York, New York, and his J.D. degree from Temple University School of Law.

Robert Abiri, partner with the firm of Abiri & Szeto LLP, in Irvine, California, authors forms that appear in chapter 8.

Christopher R. Aitken, partner of the law firm Aitken*Aitken*Cohn, in Santa Ana, California, authored forms that appear in chapter 4.

Richard A. Cohn, partner of the law firm Aitken*Aitken*Cohn, in Santa Ana, California, authored forms that appear in chapter 9.

Anne J. Kepner, partner of the law firm Needham, Kepner & Fish LLP, in San Jose, California, authored forms that appear in chapter 5.

Micha Star Liberty, owner of Liberty Law in Oakland, California, authored forms that appear in chapters 3 and 10.

Rae Lovko, partner of the firm of Lovko & King, in Berkeley, California, authored forms that appear in chapter 11.

Cynthia B. McGuinn, a principal with Rouda, Feder, Tietjen, and McGuinn, in San Francisco, California, coauthored forms that appear in chapter 6.

Daniel B. Pleasant, on the staff of Rouda, Feder, Tietjen, and McGuinn, in San Francisco, California, coauthored the forms that appear in chapter 6.

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