Selected Developments
February 2022 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
In Shipp v Western Eng’r, Inc. (2020) 55 CA5th 476, a highway contractor owed duty of care to motorist because it was foreseeable that negligence in controlling traffic would result in accident. See §§1.10, 4.65.
In Steinle v U.S. (9th Cir 2021) 11 F4th 744, the connection between the storage of a pistol in a vehicle and decedent’s death was so remote that, as a matter of law, the acts were not the proximate or legal cause of the fatal incident. See §1.16.
The California Supreme Court has recognized and applied a two-step inquiry to determine whether a defendant has a legal duty to take action to protect a plaintiff from injuries caused by a third party: “First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to protect. Second, if so, the court must consult the factors described in Rowland to determine whether relevant policy considerations counsel limiting that duty.” Brown v Taekwondo (2021) 11 C5th 204, 209. See §1.23.
A music festival operator has a special relationship with attendees and owes a duty of care to them. Dix v Live Nation Entertainment (2020) 56 CA5th 590 (once festival invitees passed through security and entered enclosed grounds, attendees were dependent on operator of festival in event of medical emergency and to provide adequate security). See §1.28.
In Szarowicz v Birenbaum (2020) 58 CA5th 146, a particularly violent body check in a “no-check” hockey game created triable issue of fact as to increased risk beyond that inherent in the game. See §1.47.
Automobiles
In McKenna v Beesley (2021) 67 CA5th 552, a vehicle owner was liable for injuries resulting from negligently entrusting the vehicle to an unfit, incompetent, or reckless driver, including for entrusting the vehicle to someone without a driver’s license. See §4.38.
A passenger shot by an officer during the course of a vehicular pursuit may seek relief under the Fourth Amendment. Villanueva v California (9th Cir 2021) 986 F3d 1158. See §4.83.
In Earl v Campbell (9th Cir 2021) 859 Fed Appx 73 (unpublished opinion), a police officer was entitled to qualified immunity when they were on foot and perceived a car accelerating in their direction. See §4.83.
Construction Work
In Sandoval v Qualcomm Inc. (2021) 12 C5th 256, a hirer owed no tort duty to the contractor’s employee even though hirer performed the partial power-down process that preceded the contractor’s work and resulted in the presence of a live electrical circuit. See §6.10.
There is a strong presumption under California law that a hirer of an independent contractor delegates to the contractor all responsibility for workplace safety. Gonzalez v Mathis (2021) 12 C5th 29. See §§6.10, 6.12.
“Employees,” for purposes of workers’ compensation law, include any individual deemed an employee under the “ABC” test as articulated in Dynamex Operations W., Inc. v Superior Court (2018) 4 C5th 903 (Dynamex is to be applied retroactively). Vazquez v Jan-Pro Franchising Int’l, Inc. (9th Cir 2021) 986 F3d 1106. See §6.21.
Government Liability
In Leon v County of Riverside (2021) 64 C54th 837, a county and sheriff’s deputies were immune from liability for the alleged negligence of deputies in failing to cover murder victim’s exposed body. See §8.11.
In City of Los Angeles v Superior Court (2021) 62 CA5th 129, a police officer’s spouse got typhus after the officer contracted the disease from unsanitary conditions at the police station; however, the spouse could not state a claim under Govt C §835 as they had no physical contact with dangerous condition at the subject property. See §8.18.
The “discretionary function” exception to liability under the Federal Tort Claims Act is discussed in Lam v U.S. (9th Cir 2020) 979 F3d 665. See §8.19.
In order for the design immunity to apply, the design of the public improvement shall be in substantial conformance with the approved design plans; a minor deviation from the approved plan as designated will not preclude the application of the immunity. Menges v Department of Transp. (2020) 59 CA5th 13. See §8.30.
Design immunity for a dangerous condition does not shield a public entity from liability for failure to warn of the same dangerous condition. Tansavatdi v City of Rancho Palos Verdes (2021) 60 CA5th 423. See §8.30.
In City of Chico v Superior Court (2021) 68 CA5th 352, 366, a public entity was immune from liability for a fallen tree branch that injured a jogger since there was no evidence that construction or human-made improvements near the tree caused the branch to fall. See §8.33.
In Sales v City of Tustin (2021) 65 CA5th 265, the court ruled that state law claims dismissed by a federal district court remain tolling while an appeal from the district court’s dismissal of the related federal claims is pursued. See §8.57.
A public entity’s immunity from punitive damages under Govt C §818 extends to treble damages that do not have a compensatory function, but are meant to punish. Los Angeles Unified Sch. Dist. v Superior Court (2021) 64 CA5th 549 (review granted Sept. 1, 2021, S269608; opinion to remain published and precedential until further order). See §8.63.
Medical Malpractice
Identifying who would perform surgery, if that person is a physician assistant and not a doctor, and making clear whether a physician would be involved at all, are matters relevant to informed consent. Davis v Physician Assistant Bd. (2021) 66 CA5th 227, 278. See §9.11.
In Flores v Liu (2021) 60 CA5th 278, 296, the court ruled that the disclosure of statistical probabilities is not invariably a prerequisite to informed consent. See §9.11.
Under Bus & P C §729, certain health care providers who engage in sexual contact with a patient are guilty of the criminal offense of sexual exploitation and the patient’s consent is not a defense. Applied Materials v Workers’ Comp. Appeals Bd. (2021) 64 CA5th 1042, 1075. See §9.17.
When a plaintiff is “virtually” present and witnesses an in-home caregiver causing injury to their loved one, they satisfy the requirement for contemporaneous sensory awareness as required for a negligent infliction of emotional distress claim. Ko v Maxim Healthcare Servs., Inc. (2020) 58 CA5th 1144. See §9.20.
It is an abuse of discretion to admit evidence of full unpaid medical bills from providers who did not accept plaintiff’s insurance when the trial court did not require plaintiff to demonstrate that they actually incurred those amounts. Qaadir v Figueroa (2021) 67 CA5th 790. See §9.88.
Premises Liability
In Zuniga v Cherry Ave. Auction, Inc. (2021) 61 CA5th 980, the evidence did not establish as a matter of law that the danger presented by the overhead power line was open and obvious. See §10.16.
In Issakhani v Shadow Glen Homeowners Ass’n (2021) 63 CA5th 917, a landowner had no duty to provide onsite parking for invitees in order to protect them from traffic accidents occurring offsite as they travel to the premises. See §10.33.
A business did not exercise control over an area with a pothole merely by putting a driveway and gutter to their ordinary use. Lopez v City of Los Angeles (2020) 55 CA5th 244. See §10.40.
Product Liability
The strict liability of product suppliers is discussed in Loomis v Amazon.com, LLC (2021) 63 CA5th 466. See §§11.1, 11.4, 11.53.
The need for expert testimony on legal causation does not preclude the use of the consumer expectation test. Pilliod v Monsanto Co. (2021) 67 CA5th 591, 619. See §11.9.
When punitive damage awards in other cases are not sufficient to “punish and deter” conduct, and reprehensible conduct continues, a multiplier of four times the compensatory damages did not exceed the state’s power to punish. Pilliod v Monsanto Co. (2021) 67 CA5th 591, 649. See §11.23.
In Loomis v Amazon.com LLC (2021) 63 CA5th 466, defendant Amazon’s role in the product transaction could establish it as a link in the chain of distribution through (1) the vertical chain of distribution, (2) the stream of commerce approach, and (3) a service provider participating in the sale of the product. See §11.29.
In Leining v Foster Poultry Farms, Inc. (2021) 61 CA5th 203, the court held that when there was no physical injury, no cause of action for negligent misrepresentation could go forward. See §§11.29, 11.48.
Railroad Crossings
The preemptive effect of the Federal Railroad Safety Act of 1970 (FRSA) (49 USC §§20101–20168) is discussed in Soto v Union Pac. R.R. (2020) 45 CA5th 168. See §§12.2, 12.5.
Pharmaceuticals and Medical Devices
In Shahbaz v Johnson & Johnson (CD Cal, July 31, 2020, No. CV 13–07382–AB (SSX)) 2020 US Dist Lexis 186475, 2020 WL 5894590, defendant’s summary judgment was granted, because in the absence of the prescribing physician’s testimony, plaintiff could prove the physician would have changed their prescribing decision if a different warning had been provided. See §13.11.
