Personal Injury and Wrongful Death: An Outline of Common Claims under California Law*

By Richard Alexander

*If you have a potential wrongful death case, you are urged to contact our law firm immediately. The law gives you certain legal rights, which may be lost if you delay. If you have a potential personal injury case, please contact us via this form.

The following outline provides a broad overview of California's laws concerning personal injury and wrongful death claims, but it is not legal advice and cannot be relied upon as legal advice. Reliable legal advice can only be rendered by a licensed California attorney after a review of the facts concerning a particular claim.

California only allows a person two years to file a claim for personal injuries and wrongful death against private persons, businesses and corporations] [see special rules below for public entity claims] with an exception allowing children to file up to age 19 and further excepting cases of "delayed discovery." California's delayed discovery rules are set forth in a separate article on The Consumer Law Page.

The statute of limitations for children against public entities [state, county, city, or a host of "districts," .e.g. "irrigation district," "fire district," etc.] is one year. All claimants against public entities, including children, must file an administrative claim within six months of injury or death and are allowed an additional six months to file a late claim.

Failure to file within the time required by law results in the "statute of limitations" [SOL] defense barring the claim. Claims filed after the SOL are outlawed, cannot be prosecuted and are valueless. The SOL defense is absolute.

Abuse of Process

1. Elements

1. In general, this cause of action results from misuse of the legal process
2. Even if properly obtained for purpose other than that which it was designed to accomplish. i.e., use of interrogatories to publish information which would otherwise be confidential. Restatement of Torts 2nd , Section 682, comment a.

2. Defenses

1. Statements made in judicial proceedings are privileged
   1. Publication made in judicial proceeding
   2. Publication had logical relation or connection to the action
   3. Publication made to achieve the objects of the litigation
   4. Publication involved litigants or other participants which are authorized by law
2. Statue of limitations is 1 year

Assault & Battery

1. Elements

1. Offensive or harmful contact
1. Assault
   (1) Apprehension of imminent contact
   (2) Mere words are not enough
2. Battery
   (1) Harmful or offensive contact
   (2) Consummated and completed assault
2. Intent
   1. Exceptions
      (1) Not required to show intent when contact takes place during
      commission of unlawful act. E.g., defendant strikes plaintiff during
      robbery
      (2) No intent needed when conduct willful, wanton, reckless or malicious
      (3) Transferred intent--Defendant intends to throw rock at "A", misses and strikes plaintiff
3. Present ability
   
   1. Required for criminal assault and battery
   2. Restatement 2d Torts, Section 33
      (1) Actor's belief in ability to harm or put in apprehension of harm in
      irrelevant
      (2) Plaintiff must believe defendant has ability to injure her.

2. Defenses

1. Plaintiff's consent to act,
2. Self-defense, defense of third person
3. Defense of property
4. Use of reasonable force.

Conversion -- wrongful exercise of dominion over personal property

1. Elements

1. Interference with dominion
   1. Requires actual interference
   2. Not necessary that property be taken
      (1) Manual taking not required
      (2) Any wrongful interference is sufficient
      
2. Plaintiff must have title or possession
3. For example,
   1. Taking
   2. Refusal to return on demand
   3. Unauthorized use

2. Defenses of Privilege

a. Unpaid conditional seller has privilege to repossess goods
b. Public officer (i.e., sheriff) may take and control property

Breach of Good Faith Duty by an Insurance Companies

1. Elements of case by owner of policy, or "first party" breach

1. Every insurance policy carries the implied covenant of good faith and fair dealing
2. Plaintiff must prove that the insurance company breached the implied covenant by unreasonably refusing to pay plaintiff's policy benefits, i.e., bad faith breach
3. Causation: only damages proximately resulting from the breach are recoverable
4. Damages
5. Defense: insurance company acted fairly and in good faith in refusing to pay first party benefits.

2. Elements by a claimant against a wrongdoer's insurance company or "third party" bad faith. In March, 2000, Californians rescinded a 1999 state law allowing citizens to file a direct action against "the other person's" insurance company when that company acted in bad faith, engaged in abusive claims practices or treatment. As a result, in order to prosecute a "third party" bad faith lawsuit, the abused party must show that the insurance carrier violated its duty of good faith to its own insured.

1. Breach of duty to insured: good faith and fair dealing imposes a duty on an insurance company to accept a reasonable offer to settle a claim against the person insured if the offer is within the limits of the insurance coverage and if there is a substantial likelihood of recovery against the person insured for an amount in excess of the coverage
   
1. Insurance company must only consider the interests of its insured and not its own interest
2. Insurance company must make an honest, intelligent and knowledgeable evaluation of the claim on its merits
3. Insurance company subject to objective evaluation of the claim at the time reasonable settlement offer is made
2. Breach: unreasonable refusal to accept a settlement offer that is fair, reasonable and within policy limits
3. Damages: when the verdict in the primary action is in excess of the policy limits, and the case could have been settled for policy limits, the full amount of the verdict is owed by the carrier, including punitive damages for misconduct
4. Causation: only damages proximately resulting from the breach are recoverable
5. Assignment: insured assigns its rights against it carrier to the plaintiff, including claims for punitive damages
6. Defenses: insurance company must prove its good faith and fair dealing in its refusal of a settlement offer within policy limits.

Fraud, Deceit and Negligent Misrepresentation

1. Fraud and Deceit

1. Misrepresentation of a material fact
   1. False representation
   2. Concealment
   3. Nondisclosure
      
2. Knowledge of falsity or lack of reasonable ground for belief in truth of representation
3. Intent to induce reliance
4. Justifiable reliance by plaintiff
5. Resulting damage
6. Statute of limitations -- 3 years after discovery of facts constituting fraud or mistake.

2. Negligent misrepresentation

1. Representation as to past or existing material fact
2. Falsity or representation
3. Defendant's lack of reasonable ground for belief in truth of representation
4. Intent to induce reliance
5. Justifiable reliance by plaintiff
6. Proximately caused injury

3. Defense of Statute of limitations of 3 years

Legal Malpractice

1. Elements

1. Duty on the part of the professional to use such skill, care and diligence as other members of profession commonly possess and exercise in representing client
2. Breach of that duty
3. Actual loss or damage resulting from breach
4. Defendant's negligence proximately caused resulting injury.

2. Defenses

1. Comparative negligence
2. Good faith and error of judgment
3. Release
   1. If client represented by independent counsel
4. Limited representation.

Loss of Consortium

1. Elements
   

1. Valid and lawful marriage between plaintiff and the person injured, at time of injury
2. Negligent or intentional injury to plaintiff's spouse
3. Loss of consortium suffered by plaintiff
   1. Support and service
   2. Love
   3. Companionship
   4. Society
   5. Sexual relations
   6. Solace
      
4. Loss proximately caused by defendant's wrongful act.

2. Defenses

1. Comparative negligence
2. Statute of limitations of 1 year

Malicious Prosecution

1. Elements

1. Defendant initialed or maintained a civil, criminal, or administrative proceeding against plaintiff
2. Proceeding initiated with malice and without probable cause
3. Proceeding absolutely terminated in plaintiff's favor.

2. Defenses

1. Good faith reliance by defendant on advice of counsel
2. Proceeding initiated after independent investigation
3. Statute of limitations of 1 year
4. Settlement, including dismissal with a waiver of costs, is not a termination in plaintiff's favor

Medical Malpractice

1. Elements

1. Duty of care of physicians and surgeons requires that they exercise that degree of skill, knowledge and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances
   
   1. Duty applies equally to diagnosis and treatment
   2. Specialists duty of care: the exercise of professional conduct normally exhibited by specialists in the same or similar locality under like circumstances
   3. Duty to refer to specialist: when the physician knows, or in the exercise of reasonable care should know, that superior treatment might thereby be obtained
      
2. Requirement of informed consent
   
   1. Failure to obtain a patient's consent for medical procedures subjects the physician to either liability for battery or negligence
   2. Standard of care: an integral part of the physician's duty to the patient is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each
   3. Scope of disclosure: measured by the amount of knowledge of a patient need in order to make an informed choice, and the physician should give the patient all information material to that decision
      
3. Informed refusal: patients must be apprised of the risks of a decision not to undergo the treatment or procedure
4. Breach of duty
5. Actual loss or damage resulting from the breach
6. Defendant's negligence proximately caused the resulting injury.

2. Defenses

1. Statute of limitations
2. Comparative negligence
3. Emergency care - good samaritan rule
4. Injury resulting from natural course of condition or treatment
5. Non-action on unsolicited references from diagnostic clinic
6. Exculpatory clauses - generally against public policy.

Negligence

1. Elements

1. Duty
   1. General duty of ordinary care: that degree of care that ordinarily prudent people can be reasonably expected to exercise under similar circumstance
      (1) Degree of care varies with the circumstances of each case
      (2) The greater the danger and seriousness of the reasonably anticipated circumstances, the higher the degree of care required
      (3) Foreseeability of injury as a factor
   2. Affirmative duty of care
      (1) General rule: nonliability for nonfeasance
      (2) Voluntary assumption of duty
      (3) Special relationship giving rise to a duty to aid, protect, or warn
      (4) Creators of foreseeable peril
      (5) Duty to aid others in peril in absence of special relationship
      
2. Breach of duty
3. Damages
4. Causation -- Nexus between plaintiff's damages and defendant's breach of duty
   
   1. Actual cause: cause in fact
   2. Proximate or legal cause is a substantial cause

2. Defenses

1. Comparative negligence: plaintiff's duty is to exercise reasonable care under the circumstances on his own behalf
2. Reasonable implied assumption of the risk - very narrowly construed
3. Express assumption of risk - very narrowly construed.

Nuisance -- Public and Private

California's law of nuisance are mired in a tragic adherence to a 19th century belief that all nuisances are readily seen, heard or smelled and totally fails to recognize silent underground pollution by toxic chemicals. For a full explanation of California nuisance laws and the bizarre decisions by California courts supporting polluters, see three special articles published on The Consumer Law Page.

1. Public nuisance
   

1. Civil Code, Section 3479: a nuisance is anything which in injurious to health, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life and property, and affects a large number of people
2. Case law: a public nuisance is not dependent upon disturbance of rights in land but upon an interference with the rights of a community at large
3. Standing
   
   1. Public nuisance actions by government plaintiffs
   2. Action by private plaintiff
      (1) Public nuisance must meet requirements for a private nuisance
      (2) Private plaintiff must sustain special injury to himself
      
4. Causation: plaintiff must prove that his claimed damages are proximately caused by the defendant's nuisance.
5. Damages - see definition of nuisance.

2. Private nuisance

1. Civil Code, Section 3480: a private nuisance is one not included in the definition of public nuisance in Civil Code, Section 3479
2. Case law analysis: a civil wrong based on a disturbance of a person's rights in real property
3. Damages: nuisance may be based on acts causing adverse physical effects on plaintiff's property, or that disturb or prevent the comfortable enjoyment of property without directly damaging the land
4. The harm incurred must be unreasonable and substantial harm
5. Defendant's standard of conduct - 4 approaches
   
   1. Ultrahazardous activity - strict liability (traditional analysis)
   2. Intentional interference (traditional analysis)
   3. Negligence (traditional analysis)
   4. California: established a nuisance and strict liability is imposed - case law authority.

Premises Liability

1. Elements

1. Duty of the possessor of land: whether or not in the management of a person's property he or she has acted as a reasonable person in view of the probability of injury to others
   
   1. Foreseeability of harm is the key factor
   2. Circumstances giving rise to liability
      (1) Dangerous conditions on premises
      (2) Duty to protect from conduct of third persons
      (3) Liability to persons outside the premises
      (4) Vicarious liability
      
2. Breach of Duty
3. Damages
4. Proximate or legal cause is a substantial cause

2. Defenses

1. Comparative negligence
2. Statute of limitations
3. Nonliability to certain recreational users under Civil Code, Section 846 - see exceptions also
4. Fireman's rule - see exceptions also
5. Assumption of the risk - very limited applicability

Products Liability or Strict Liability for Products causing personal injury or death

1. Elements
   

1. Plaintiff must prove that personal injury or death was caused by a product that was sold which was defective. Restatement of Torts 2d 402A.
2. Types of defects
   
   1. Manufacture: e.g., product fails to comply with its own design requirement
   2. Design: Baker v. Lull Engineering
      (1) Plaintiff demonstrates that it failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner
      (2) Product may be found defective in design even if it satisfies ordinary consumer expectations, if the jury through hindsight finds that the risk of danger inherent in the challenged design outweigh the benefits of such design
      
3. Plaintiff must prove that the product was defective when it left the hands of the particular seller
4. Proximate or legal cause is a substantial cause
5. Damages - Injuries
   
   1. Physical injury to person or property
   2. Solely economic loss, or property damage claims, not yet recognized in California, but recognized by Restatement of Torts 2d

2. Defenses

1. Defect no proximate cause of injury
2. Article to be processed
3. Abnormal use:
   
   1. Unforeseeable use
   2. Retailer's ignorance of intended use
      
4. Voluntary and unreasonable assumption of the risk
5. Known or unavoidable dangers
6. Adequate warning given
7. Unforeseeable danger: no duty to warn.

Wrongful Death

1. Elements
   

1. C.C.P., Section 377 - "When the death of a person is caused by the wrongful act or negligent of another..."
2. Nature of the cause of action
   1. Negligence - see elements for negligence
   2. Intentional wrongful act - see elements for this tort
      
3. Standing requirements
   
   1. Only the heirs or dependents of the decedent can bring suit
   2. Only one joint cause of action can be maintained
      
4. Damages: lost love, care, comfort, and support
5. Grief damages are not recoverable
6. Distinguished from a "survival action," i.e. a claim made by the administrator of the estate of the deceased, or if no estate by the successor in interest of the deceased, for economic losses and punitive damages on behalf of the deceased, but excludes any claim for the decedent's emotional distress or general damages, which expire upon death.

2. Defenses

1. Imputed comparative negligence.
2. Comparative negligence of decedent
3. Comparative negligence of heir
4. Prior action or release
5. Statute of limitations - runs from date of death, but delayed discovery rules apply.

Wrongful Discharge

1. Traditional rule of nonliability for discharge of at-will employee.

2. Circumstances imposing liability on employer for wrongful discharge
   

1. Termination in violation of statue or public policy
   
   1. Termination for refusal to commit an illegal act
   2. Termination for legitimate protests of working conditions
   3. Termination for engaging in activities protected by collective bargaining statues
   4. Termination for missing work while engaging in certain protected activities
   5. Termination for political activities
   6. Termination because employee's wages garnished
   7. Termination based on age, race, sex, religion, or other prohibited grounds
      
2. Termination in breach of express or implied-in-fact promise not to arbitrarily dismiss
   
   1. Promise not to terminate except for good cause
   2. Promise not to terminate without a hearing
      
3. Termination in breach of implied-in-law covenant of good faith and fair dealing.

3. Defenses: Employer must prove that the employee was discharged in good faith and not for the reason(s) alleged by the employee.

© Richard Alexander, 2000-2007.

Richard Alexander is a specialist in personal injury litigation with 30 years in-depth experience. Emphasizing working relationships with clients has led to an exceptional record of success. He has served as a member of the Board of Governors of The State Bar of California, President of the Santa Clara County Bar Association and the Board of Governors of Consumer Attorneys of California. He is a founding member of the National Association of Consumer Advocates, and heads Alexander Hawes, LLP.

Alexander Hawes, LLP is a California law firm that specializes in personal injury, wrongful death, and financial losses caused by negligence, defective products, toxic chemicals, corporate misconduct or insurance fraud on behalf of consumers, small investors, injured workers and small businesses. In addition to individual cases the firm prosecutes class actions for large groups of individuals who have suffered financial loss as a result of corporate fraud, defective consumer products, and environmental pollution. The firm holds Martindale-Hubbell's highest rating and is recognized in the List of Preeminent Law Firms in the U. S.

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