Personal Injury Basics – Determining “Duty” In Negligence Actions

Categories: Personal Injury Law

Virtually all of personal injury law has its roots in the common law claim of “negligence.”  To prove negligence, the Plaintiff must generally show the following.

  1. Defendant owed a duty of care to the Plaintiff;
  2. Defendant breached that duty;
  3. Plaintiff was harmed;
  4. Defendant’s breach was a substantial factor in causing the Plaintiff’s harm.

For a more detailed overview on the law of negligence and its application to personal injury cases, see our other post entitled “Personal Injury Basics – Negligence Law, The Foundation for All Injury Claims”

In this article, we examine the first element of negligence, which requires the Plaintiff to prove that the Defendant owed a duty of care to the Plaintiff.  In the “Personal Injury Basics” series, we will eventually address each individual element of negligence in detail, so stay tuned for further articles in this series.

Determining Duty

The basic element of any negligence cause of action is “a duty to use due care toward an interest of another that enjoys legal protection against unintentional invasion.” Paz v. State, 22 Cal. 4th 550.  When the court is deciding if a defendant owed and breached a legal duty to a plaintiff, they begin with the policy set forth in the Civil Code, section 1714.  This code states that one is liable for injury to another caused by one’s failure to exercise ordinary care under the circumstances.  Any exemption to this rule has to be founded statute or public policy.

Thus, every person must refrain from injuring another person or another person’s property.  Furthermore, every person has a duty to use ordinary care to avoid injuring others with their conduct.  This includes everyone foreseeably endangered by that conduct pertaining to any risk that renders the conduct unreasonably dangerous.  However, there are policies that delimit the liability of a defendant in a negligence cause of action, no matter how foreseeable the risk.

Duty is a manifestation of policy considerations that will enable a Court to determine whether or not a person is entitled to the law’s protection.  This is typically determined on a case-by-case (or ad hoc) basis.  Whether a duty exists, and whether a defendant’s conduct constituted a breach of that duty, are analyzed relative to all surrounding circumstances of time, place, and person.

The Rowland Factors

When a judge is deciding whether a duty of care was owed to one person by another, they rely on the following eight factors:

  1. The foreseeability of harm to the plaintiff;
  2. The degree of certainty that the plaintiff suffered injury;
  3. The closeness of the connection between the defendant’s conduct and the plaintiff’s injury;
  4. The moral blame attached to the defendant’s conduct;
  5. The policy of preventing future harm;
  6. The extent of the burden to the defendant;
  7. The consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
  8. The availability, cost, and prevalence of insurance for the risk involved.

(See Rowland v. Christian, 69 Cal 2d 108, 113 (1968).)

However, if the person was not physically harmed and is seeking damages only for negligently inflicted emotional distress, then these factors do not apply.  Negligent infliction of emotion distress is a separate tort claim from “negligence” and, despite its namesake, the elements of each claim are rather dramatically distinguishable.  For these reasons, negligent infliction claims (often referred to as “NIED” claims) will be addressed in a subsequent article.

When Rowland does not apply – The Bily Factors

The courts will apply a different set of factors when the parties are not in privity of contract with one another, but the plaintiff alleges injury caused by negligent performance of a job for which the plaintiff contracted.  These factors are:

  1. The extent to which the transaction was intended to affect the plaintiff;
  2. The foreseeability of harm to the plaintiff;
  3. The degree of certainty that the plaintiff suffered injury;
  4. The closeness of the connection between the defendant’s conduct and the injury suffered;
  5. The moral blame attached to the defendant’s conduct; and
  6. The policy of preventing future harm.

Bily v. Arthur Young & Co., 3 Cal. 4th 370, 397 (1992).)

Inferring Duty from Affirmative Conduct: The Negligent Undertaking Doctrine

Anyone that undertakes an act that affects the interests of another can be held to have assumed a duty to act with due care.  As such, that person can be held responsible for negligent acts or omissions that arise from the act.  For example, anyone providing protective services to another, such as a bodyguard or security officer, may be held liable for negligent performance of that service when they fail to protect the person(s) or asset(s) contracted for protection.  However, as always, there are a few exceptions to this (e.g., officers of the law are not liable for performance or nonperformance of certain actions).

Professional or “Fiduciary” Duties

Many licensed professionals are held to have special duties to their clients or patients, often referred to as “fiduciary” duties.  A “fiduciary” relationship is one in which one party to the relationship must, due to the superior expertise or education of the other party, place their trust and confidence in the other party.  Thus, when I visit my physician, I must place my trust and confidence in her that she will make proper decisions regarding my health care, as I lack the education and expertise to know for myself whether she is acting competently.  She, in turn, owes a fiduciary duty to exercise the same level of care and skill that ordinary doctors in her position would exercise.

When a professional breaches a fiduciary duty by failing to act competently, it gives rise to a special type of negligence action called a “malpractice” action.  Malpractice actions are available against a wide range of professionals, including attorneys, accountants, doctors, and psychotherapists.  The same elements of negligence apply to such claims, except that the duty analysis proceeds with what a reasonable professional in the same field would have done as opposed to the more generic “reasonable person” standards of a basic negligence claim.

Thus, to establish a malpractice action, you generally must prove these elements:

  1. Defendant failed to exercise the care and skill a reasonable ______________(M.D., chiropractor, neurosurgeon, attorney, CPA, etc.) would have used under the circumstances;
  2. Plaintiff was harmed;
  3. Defendant’s failure to exercise the care and skill of a reasonable _________________ (M.D., chiropractor, neurosurgeon, attorney, CPA,. etc.) was a substantial factor in causing the Plaintiff’s harm.

Foreseeability of Risk as Duty Component

When a court is determining whether a defendant owed, and breached, a duty to use ordinary care, they look to see if the defendant could foresee a possible risk (or injury) to the plaintiff.  This factor is balanced by the court against the burden of the duty on the defendant.  A court may decide that the duty was owed to the plaintiff because the defendant should have foreseen that their actions would create an unreasonable risk of injury.  In other words, duty to use ordinary care includes refraining from placing another person in circumstances where that person is vulnerable to unreasonable risk of injury by a third person’s reasonably foreseeable conduct.  This duty includes any reasonably foreseeable negligent conduct as well.

On the other hand, if the court finds that the defendant could not have reasonably foreseen the risk involved with their conduct, they may decide no duty was owed to the plaintiff.  The factor is not quantified by probabilities or particulars of a given case, but rather, the general nature of the event or injury.  The court will look at the type of negligent conduct and whether that type is sufficiently probable to give rise to the type of harm suffered in that case.  When the court approaches the case like this, the fact-finder (usually a jury) then considers the foreseeability of harm in a more specific approach: (1) was the defendant’s conduct negligent to begin with, and (2) did that negligence a proximate or legally cause the injury.  Ballard v. Uribe, 41 Cal 3d 564, 572 (1986). Lastly, a defendant’s conduct may constitute a liability even if:

  1. Another person was the direct cause of the injury;
  2. The relationship between defendant and plaintiff was remote; and
  3. The defendant could not necessarily have foreseen the particular accident or injury resulting from his conduct.

(See Weirum v. RKO Gen., Inc., 15 Cal. 3d 40, 47 (1975).)

Court’s Role in Determining Duty

The existence of a duty from one to another is not a question of fact, but rather a question of law.  Questions of fact are reserved for the “factfinder” in litigation, which is the jury in a jury trial or the judge in a “bench” trial.  Questions of law, meanwhile, are exclusively reserved for judicial decision, regardless of whether there will be a jury trial or bench trial in the matter.

Thus, a defendant may overcome a damages claim by demonstrating to the court (the judge or panel of judges) that the defendant’s failure to use ordinary care in the supervision of himself or his property did not breach any duty owed to the claimant.  As usual, however, the court can determine the defendant does owe a duty of care, regardless of any demonstration by the defendant, if a policy exists that allows for such an exception.  Policies such as precedent, morals and justice, and convenience are relied on for these types of exceptions.

When deciding whether a defendant owed a duty to a plaintiff, a judge will generally consider two things.  First, the judge will consider the general rule discussed above, that every person has a duty to use ordinary care to prevent any injury to another on account of their conduct.  Second, the judge will determine whether the factors discussed above excuse any deviation from the general rule, whether they strengthen the general rule, or whether they supplement it.

These issues can arise in litigation at a number of phases.  First, when the Plaintiff files a Complaint (the document that initiates a lawsuit), the Defendant may file a “demurrer” (a formal objection to the Complaint) and ask that it be struck.  In the demurrer, the Defendant may claim that he/she owed no duty to the Plaintiff.  The Defendant may also raise these issues in other so-called “dispositive” pre-trial motions, such as a motion for judgment on the pleadings or a motion for summary judgment/adjudication.  The details of these procedural mechanisms are beyond the scope of this article, but the important thing to note is that the question of whether or not the Defendant owed a duty of care to the Plaintiff is usually decided by the Court long before the matter reaches a jury.


As can be seen from the foregoing, a simple negligence action can require a detailed analysis of the factual circumstances surrounding the Defendant’s purported breach of duty.  Determining whether the Defendant owed a duty at all is the first step in the analysis, and it often turns on a multi-factoral analysis of the entire surrounding circumstances (lawyers sometimes refer to tests of this sort as “totality-of-the-circumstances,” or “TOC,” tests).

If you have been injured and you believe the person responsible may have breached a duty of care they owed to you in causing it, please visit our “Contact Us” page and complete our online intake form.