Please cite the relevant state or federal code which creates an affirmative duty to act
Put shortly, in California, as someone who is paid to provide a higher risk experience, i have a greater duty to act. If I don't, I'm contributory.
Duty: There are two general types of duty imposed by law. First, everyone has a duty to use ordinary care in conducting activities from which harm might reasonably be anticipated. California Civ. Code §1714(a), which provides that everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the other person has, willfully or by want of ordinary care, brought the injury upon himself or herself. Liability for negligent conduct is, therefore, the rule, to which no exception is made unless clearly supported by public policy considerations.
In addition to the general duty to use ordinary care, a person may have a duty to act affirmatively to warn or protect others or to control the conduct of others,
if a special relationship exists between the actor and either the person to be controlled or the person who needs protection.
To determine in a given case whether the defendant owes a duty of care to the plaintiff, the court must consider several factors, including the foreseeability of harm to the injured party, the degree of certainty that the injured party suffered injury, the closeness of the connection between the defendantÃÔ conduct and the injury suffered, the moral blame attached to the defendant, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty on the defendant to exercise care with its resulting liability for breach, and the availability, cost, and custom of obtaining insurance for the risk involved.
The most important of these considerations in establishing duty is foreseeability. As a general principle, a defendant owes a duty of care to all persons who are foreseeably endangered by his or her conduct, with respect to all risks which make that conduct unreasonably dangerous.
Breach Of Duty: After establishing the existence of a duty of care owed by the defendant, a plaintiff, to support a claim of negligence, must show that the defendant breached that duty. The breach of the general duty to act reasonably consists of conduct falling below the standard of ordinary care or skill in the management of person or property. [Civ. Code §1714(a)]
Ordinary care is that degree of care which people of ordinarily prudent behavior can be reasonably expected to exercise under the circumstances of a given case. In other words, the care required must be in proportion to the danger to be avoided and the consequences that might reasonably be anticipated.
The duty to act reasonably varies with changing circumstances. In general, the standard of care is measured objectively.
Causation: For an act or omission to be the legal cause of an injury, it first must be the cause in fact of the injury. Finding cause in fact, or actual cause, requires a common sense determination as to whether the defendantÃÔ conduct brought about or contributed in some way to the plaintiffÃÔ injury. The "
but for" rule of causation, which defines actual cause, implies that the defendantÃÔ conduct is the cause of an event if "but for" the defendantÃÔ conduct, the event would not have occurred Stated another way, if the plaintiff would have sustained the injury anyway, regardless of whether the defendant was negligent, then the defendantÃÔ negligence was not an actual cause of the plaintiffÃÔ injury.
The "but for" rule of causation is adequate for most situations, but it fails where liability would be avoided because a defendantÃÔ act or omission concurred with another cause and either cause alone would have been sufficient to bring about the injurious event. However, in those situations involving concurrent causes, one cannot escape responsibility for his or her negligence on the ground that identical harm would have occurred without it. The proper rule for those situations is that the defendantÃÔ conduct is a cause of the event because it is a material element and a "
substantial factor" in bringing it about.
The doctrine of "
proximate cause" provides a limitation on liability. Even where a defendantÃÔ conduct is an actual cause of a plaintiffÃÔ injury, the defendant may be held not liable because of the manner in which the injury occurred. The most common circumstance in which a defendant may escape liability because of a lack of proximate causation is when, after the defendantÃÔ act, an independent intervening act that is not reasonably foreseeable occurs. In that event, even though the defendantÃÔ act started the chain of causation toward the plaintiffÃÔ injury, the intervening act may be considered a superseding cause of the injury. Thus, where, because of an unforeseeable intervening act, a court concludes that it would be unjust to hold the defendant legally responsible, the court relieves the defendant of liability by holding that there is no "proximate cause" between the defendantÃÔ act or omission and the plaintiffÃÔ injury.
Defense - Comparative Negligence: Contributory negligence is conduct on the part of the plaintiff which falls below the standard to which he or she should conform for his or her own protection, and which is a legally contributing cause concurring with the negligence of the defendant in bringing about the plaintiffÃÔ harm.
Before 1975, the plaintiffÃÔ contributory negligence was a complete bar to recovery against a defendant whose negligent conduct would have otherwise made him or her liable to the plaintiff for the harm the plaintiff sustained. However, the California Supreme Court has replaced this all-or-nothing rule of contributory negligence with a rule that assesses liability in proportion to fault. In all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured no longer bars recovery, but the damages awarded must be diminished in proportion to the amount of negligence attributable to the person recovering.
