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.
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.
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.
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.
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.
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.
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.