Overview
Before you can recover damages in a negligence case, the law must recognize that the defendant owed you a legal obligation to act with reasonable care. That obligation is the duty of care. In California, duty is a question of law for the court -- not the jury -- making it one of the most heavily litigated threshold issues in personal injury practice.
The good news for injured people: California starts from the presumption that a duty of care exists. The defendant has to argue for an exception.
Civil Code Section 1714: The Presumption of Duty
Civil Code section 1714(a) establishes the broadest possible duty of care: everyone is responsible for an injury occasioned to another by their want of ordinary care or skill in the management of their property or person. This creates a default rule that duty exists. Unlike many states that require plaintiffs to establish duty through common-law analysis, California begins from the premise that everyone owes ordinary care to everyone else.
The Rowland Factors
In Rowland v. Christian (1968) 69 Cal.2d 108, the California Supreme Court established the multi-factor balancing test used to determine whether the general duty should be limited. The seven factors are:
- Foreseeability of harm -- the most critical factor
- Certainty of injury -- did the plaintiff actually suffer a cognizable injury?
- Closeness of connection -- the nexus between conduct and harm
- Moral blame -- the degree of culpability in the defendant's conduct
- Policy of preventing future harm -- would imposing duty incentivize safer behavior?
- Burden on the defendant -- practical costs of imposing the duty
- Insurance availability -- whether the risk is insurable
The California Supreme Court has repeatedly emphasized that departures from the general duty require strong policy justifications. Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764.
In California, the presumption is that they did. Make them prove otherwise.
California law presumes a duty of care exists. The defendant must show strong policy reasons to avoid it. That is a high bar, and we know how to hold them to it.
Foreseeability: Duty Level vs. Breach Level
California employs two distinct levels of foreseeability analysis, and confusing them is a common mistake:
| Level | Question | Who Decides |
|---|---|---|
| Duty-level foreseeability | Was this category of harm foreseeable as a general matter? | The court (question of law) |
| Breach-level foreseeability | Was this particular harm foreseeable under the specific facts? | The jury (question of fact) |
This distinction is crucial for defeating defense motions for summary judgment. Defense counsel frequently tries to collapse the two inquiries, arguing that because the specific accident was not foreseeable, no duty existed. Under Cabral v. Ralphs Grocery Co. (2011), that is incorrect. Duty-level foreseeability is a general, categorical inquiry that does not depend on the specific facts.
Nonfeasance vs. Misfeasance
California draws a fundamental distinction between active misconduct (misfeasance) and failure to act (nonfeasance). A duty of care is generally owed when the defendant's affirmative conduct creates a risk of harm. There is generally no duty to act affirmatively to protect others from harm absent a special relationship.
Under California law, there is no general duty to rescue. A bystander who witnesses a drowning has no legal obligation to attempt a rescue. But a duty to act arises when a special relationship exists, when the defendant created the peril, when the defendant voluntarily undertook to assist, or when a statute imposes an affirmative duty.
Special Relationships
| Relationship | Duty Owed |
|---|---|
| Common carrier / passenger | Highest degree of care |
| Innkeeper / guest | Reasonable care for safety |
| Landowner / invitee | Reasonable care (Rowland standard) |
| Employer / employee | Safe workplace (Labor Code 6400) |
| School / student | Supervisory care |
| Hospital / patient | Professional standard of care |
| Therapist / patient (third parties) | Duty to warn (Tarasoff) |
Negligence Per Se
Evidence Code section 669 creates a presumption of negligence when a person violates a statute, ordinance, or regulation, and the violation proximately caused injury of the type the statute was designed to prevent, to a person in the class the statute was designed to protect.
| Statute | Duty Imposed | Application |
|---|---|---|
| Vehicle Code 22350 | Basic speed law | Car accident cases; speed unsafe for conditions |
| Vehicle Code 23152 | DUI prohibition | Drunk driving accident cases |
| Health & Safety Code 17920.3 | Habitability standards | Landlord liability cases |
| Labor Code 6400 | Safe workplace | Employer negligence cases |
| Building codes | Construction standards | Construction defect and premises cases |
Premises Liability Duties
Rowland v. Christian abolished the rigid three-category system (trespasser, licensee, invitee) in California. A landowner now owes a single duty of ordinary care to all persons on the property. However, the plaintiff's status remains relevant to the Rowland balancing analysis. Commercial property owners have a duty to conduct regular, systematic inspections. An important exception is the attractive nuisance doctrine, which imposes heightened duties toward child trespassers.
Duty in Specific Contexts
- Health care providers -- owe a professional standard of care, not merely ordinary care
- Common carriers (buses, taxis, rideshare) -- owe the highest degree of care consistent with practical operation
- Employers -- non-delegable duty to provide a safe workplace under Labor Code 6400
- Product manufacturers -- duty to design, manufacture, and market reasonably safe products
- Alcohol service -- generally no liability for serving alcohol to adults; exception for serving minors
If the defendant owed you a duty, the rest is about the facts. We know how to win on duty.
Many cases are won or lost on the duty question before the jury ever hears a word. We build the duty argument from the first day of the case and prepare to defend it against summary judgment.
Cross-References
- Comparative Fault -- how plaintiff's own negligence affects recovery
- Vicarious Liability -- imputing duty and liability to employers
- Negligent Entrustment -- duty arising from entrusting dangerous instrumentalities
- Products Liability -- manufacturer's duty to consumers
- Premises Liability -- landowner duties in depth
- Slip and Fall -- notice and inspection duties
Common Questions
What is the duty of care in California?
The duty of care is the legal obligation to act with reasonable care toward others. In California, Civil Code section 1714(a) establishes a broad presumption that every person owes a duty of ordinary care in the management of their person or property. This is an objective standard: the degree of care that a reasonably prudent person would exercise under the same circumstances. Unlike many states, California presumes the duty exists and puts the burden on the defendant to argue for an exception.
What are the Rowland factors?
In Rowland v. Christian (1968) 69 Cal.2d 108, the California Supreme Court identified seven factors for determining whether the general duty should be limited: (1) foreseeability of harm, (2) certainty that the plaintiff suffered injury, (3) closeness of connection between conduct and injury, (4) moral blame attached to the conduct, (5) policy of preventing future harm, (6) burden on the defendant and community, and (7) availability and cost of insurance. Departures from the general duty require strong policy justifications.
What is negligence per se?
Negligence per se under Evidence Code section 669 creates a presumption of negligence when a person violates a statute, ordinance, or regulation, the violation proximately caused injury, and the injury was the type the statute was designed to prevent to the class of persons the statute was designed to protect. Common examples include Vehicle Code violations in car accident cases, building code violations in premises cases, and fire safety violations in landlord cases.
Does a property owner owe a duty to trespassers in California?
Yes, but a limited one. Rowland v. Christian abolished the rigid three-category system (trespasser, licensee, invitee) and held that a landowner owes a single duty of ordinary care to all persons on the property. However, the plaintiff's status remains relevant to the Rowland balancing analysis. As a practical matter, trespassers may recover less frequently because foreseeability is reduced. An important exception is the attractive nuisance doctrine, which imposes heightened duties toward child trespassers.
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Local Resources
- LA Superior Court · Stanley MoskCivil filings for LA County personal injury cases.
- CA State Bar LookupVerify any attorney's license before hiring.
- Cedars-Sinai EmergencyLos Angeles trauma center for serious injuries.
- CAALA (Consumer Attorneys Association of Los Angeles)Find a qualified plaintiff's attorney in Los Angeles.
- California Legislative InformationLook up California statutes referenced in duty-of-care analysis.
- California Civil Code § 1714(a). General duty of ordinary care in the management of person or property.
- Rowland v. Christian (1968) 69 Cal.2d 108. Seven-factor balancing test for duty; abolished rigid trespasser/licensee/invitee categories.
- Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764. Duty-level foreseeability is categorical; departures from CC 1714 require strong policy justifications.
- Evidence Code § 669. Negligence per se: presumption of negligence from statutory violation.
- Kesner v. Superior Court (2016) 1 Cal.5th 1132. Extended duty analysis to take-home asbestos exposure; broad application of Rowland factors.
- Tarasoff v. Regents of the University of California (1976) 17 Cal.3d 425. Therapist duty to warn foreseeable victims of patient violence.