Selected Developments
February 2023 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 Doe v Roman Catholic Archbishop of Los Angeles (2021) 70 CA5th 657, the court held that to impose a duty on a person for another person’s conduct, the defendant must have actual knowledge of a particular third party assailant’s proclivities. See §1.26.
Airplanes
In SwiftAir, LLC v Southwest Airlines Co. (2022) 77 CA5th 46, 55, the court held that matters involving airline services, including items such as ticketing, boarding procedures, provision of food and drink, baggage handling, and the transportation itself are preempted by the Federal Aviation Administration’s pervasive regulations. See §2.19.
Automobiles
The prohibition on street racing has been expanded to include the prohibition of engaging in such conduct in an offstreet parking facility. Veh C §23109. See §4.19.
Government Liability
The California Supreme Court has granted review in Leon v County of Riverside (review granted Aug. 18, 2021, S269672; superseded opinion at 64 CA5th 837), which held that a county and sheriff’s deputies were immune from liability for the alleged negligence of deputies in failing to cover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.
The legislature has amended CCP §340.1 to specifically provide that a claim for damages is not required to be presented to any government entity before the commencement of an action for recovery of damages suffered as a result of childhood sexual assault. CCP §340.1(s). See §8.38.
Medical Malpractice
Health care providers may not release medical information related to an individual seeking or obtaining an abortion or a person or entity allowing a child to receive gender-affirming health care or gender-affirming mental health care in response to a subpoena or request if that subpoena or request is based on either another state’s laws that interfere with a person’s rights under the Reproductive Privacy Act or a foreign penal civil action (as defined under CCP §2029.200). CC §§56.108, 56.109. See §9.21.
The limitations on noneconomic damages in medical malpractice cases have been increased. Effective January 1, 2023, the limitation under CC §3333.2 for actions not involving wrongful death was increased to $350,000 and will increase on January 1 each year by $40,000 for 10 years, until it reaches $750,000. The damage limitation for actions involving wrongful death is increased to $500,000 and will increase on January 1 each year by $50,000 for 10 years, until it reaches $1 million. See CC §3333.2(g). Beginning January 1, 2034, the limitations under CC §3333.2 will increase by 2 percent each year. CC §3333.2(h). See §9.86.
The damages limitations under CC §3333.2 also apply to a physician assistant who has a legally enforceable agency relationship with a supervising physician and provides services within the scope of that agency relationship, even if the physician violates the obligation to provide adequate supervision. Lopez v Ledesma (2022) 12 C5th 848. See §9.86.
Premises Liability
In Kuciemba v Victory Woodworks, Inc. (9th Cir 2022) 31 F4th 1268, 1270, the Ninth Circuit certified the following questions to the California Supreme Court: (1) If an employee contracts COVID-19 at the workplace and brings the virus home to their spouse, does California’s derivative injury doctrine bar the spouse’s claim against the employer? (2) Under California law, does an employer owe a duty to the households of its employees to exercise ordinary care to prevent the spread of COVID-19? See §10.3.
In Hoffman v Young (2022) 13 C5th 1257, the court held that when a landowner has properly authorized an agent to extend, on their behalf, an invitation to enter the land, that invitation gives rise to the “express invitation” exception of CC §846. See §10.27.
Pharmaceuticals and Medical Devices
In Himes v Somatics, LLC (9th Cir 2022) 29 F4th 1125, the court considered how the causation requirement is met: Must the plaintiff show a stronger warning would have altered the physician’s decision to prescribe the product, or must the plaintiff show the physician would have merely communicated the stronger warning to the plaintiff, and a prudent person would have declined treatment? Because there is no controlling state precedent on how a stronger warning must alter the conduct of the physician in order to prove causation, the Ninth Circuit certified this issue to the California Supreme Court. See §13.5.
