Torts
I. Overview
Torts is one of the most frequently tested subjects on the California Bar Exam, appearing regularly on both the essay and performance-test portions. The subject encompasses civil wrongs that cause harm to individuals, property, or economic interests. California examiners test the full range of tort law, including intentional torts, negligence, strict liability, products liability, nuisance, defamation, privacy torts, and economic torts.
Torts essays on the CA bar almost always involve multiple theories of liability. If you see a personal-injury fact pattern, systematically work through intentional torts, negligence, and strict liability for every potential defendant. The examiners reward breadth of analysis.
Examiners look for: (1) accurate rule statements with all elements clearly identified; (2) thorough application of facts to each element; (3) identification of all viable claims and defenses; (4) awareness of California-specific rules, especially comparative fault and products liability standards; and (5) proper discussion of damages.
California uses pure comparative fault (Li v. Yellow Cab Co., 1975), meaning a plaintiff's recovery is reduced by their percentage of fault, but they are never completely barred from recovery regardless of how much they are at fault. This contrasts with many other states that use modified comparative fault (barring recovery at 50% or 51% fault).
II. Intentional Torts
Intentional torts require a volitional act done with the requisite intent. Under the single-intent rule (majority/Restatement), the defendant need only intend the contact (for battery) or apprehension (for assault). Under the dual-intent rule (minority), the defendant must also intend the contact to be harmful or offensive. The doctrine of transferred intent applies among the original five trespassory torts (battery, assault, false imprisonment, trespass to land, trespass to chattels): intent to commit one transfers to another, and intent directed at one person transfers to another person who is actually harmed.
A. Battery
Battery is the intentional causation of a harmful or offensive contact with the person of another.
- Act: A volitional act by the defendant.
- Intent: The defendant intends to cause a harmful or offensive contact with the person of another, or an imminent apprehension of such contact (transferred intent applies).
- Harmful or offensive contact: Contact that causes bodily harm or that a reasonable person would find offensive. Contact with anything connected to the plaintiff's person (e.g., clothing, an object held) is sufficient.
- Causation: The defendant's act is the direct or indirect cause of the contact.
The plaintiff need not be aware of the contact at the time it occurs (e.g., contact with a sleeping or unconscious person). No actual physical harm is required; offensive contact alone suffices. Remember that the "eggshell skull" rule applies: the defendant takes the plaintiff as they find them.
B. Assault
Assault is the intentional causation of a reasonable apprehension of an imminent harmful or offensive contact.
- Act: A volitional act by the defendant.
- Intent: The defendant intends to cause an imminent apprehension of harmful or offensive contact, or intends the contact itself (transferred intent).
- Reasonable apprehension: The plaintiff is placed in reasonable apprehension of the contact. "Apprehension" means awareness, not necessarily fear. The plaintiff must be aware of the defendant's act.
- Imminence: The threatened contact must appear to be about to happen without significant delay. Words alone, without an overt act, are generally insufficient. However, words can negate an assault ("If you weren't my friend, I'd punch you") or create one when coupled with a threatening gesture.
Apparent ability is sufficient. An unloaded gun pointed at the plaintiff is assault if the plaintiff reasonably believes it is loaded. The defendant's actual ability to carry out the threat is irrelevant; the test is the plaintiff's reasonable perception.
C. False Imprisonment
False imprisonment is the intentional act of confinement or restraint of the plaintiff within a bounded area, without the plaintiff's consent and without lawful authority.
- Act of confinement: The defendant confines the plaintiff through physical barriers, physical force, threats of force, assertion of legal authority (false arrest), or duress. Moral pressure or future threats are insufficient.
- Intent: The defendant intends to confine the plaintiff. Transferred intent applies.
- Bounded area: The area of confinement must be bounded in all directions. There is no false imprisonment if a reasonable means of escape exists that the plaintiff knows about, unless the escape route is unreasonable (dangerous, disgusting, or humiliating).
- Awareness or harm: The plaintiff must either be aware of the confinement at the time it occurs or suffer actual harm from it.
Shopkeeper's privilege (merchant's privilege) is a key defense. A shopkeeper may detain a suspected shoplifter for a reasonable time in a reasonable manner for investigation if there is reasonable belief that shoplifting has occurred. California codifies this in Penal Code section 490.5.
D. Intentional Infliction of Emotional Distress (IIED)
IIED requires (1) extreme and outrageous conduct by the defendant, (2) intent to cause severe emotional distress or recklessness as to the risk, (3) causation, and (4) the plaintiff suffers severe emotional distress.
- Extreme and outrageous conduct: Conduct that exceeds all bounds of decency tolerated in a civilized society. This is a high bar. Mere insults, threats, or annoyances ordinarily do not qualify. However, conduct targeting a known vulnerability (e.g., harassing an elderly person, exploiting a known phobia, racial slurs from a person in authority) may be outrageous. A pattern of conduct may be outrageous even if individual acts are not.
- Intent or recklessness: Unlike other intentional torts, IIED can be satisfied by recklessness (acting with deliberate disregard of a high probability of causing severe emotional distress). This is the only intentional tort where recklessness suffices.
- Causation: The defendant's conduct must cause the distress.
- Severe emotional distress: The distress must be substantial, not trivial. Some jurisdictions require physical manifestation of the distress, but the modern trend and California do not.
Bystander IIED: A bystander who witnesses outrageous conduct directed at a third person may recover if: (1) they were present at the time, (2) they are a close family member of the primary victim, and (3) the defendant knew of the bystander's presence and relationship. Some jurisdictions allow recovery by any bystander who is present, but most limit it to close family members.
E. Trespass to Land
Trespass to land is the intentional entry onto, or causing a physical invasion of, the land of another without permission.
- Physical invasion: The defendant physically enters the plaintiff's land, causes a third person or object to enter, remains on the land after a right to be there has expired, or fails to remove something they have a duty to remove. The invasion includes the surface, airspace above (within the immediate reaches), and subsurface below.
- Intent: The defendant need only intend the physical act of entering; they need not know they are on another's land. A reasonable mistake about property boundaries is not a defense. Transferred intent applies.
- Land of another: The plaintiff must be in actual possession or have the right to immediate possession.
- Damages: Trespass is actionable without proof of actual damages (nominal damages available). If the trespass causes actual harm, full compensatory damages are recoverable.
F. Trespass to Chattels
Trespass to chattels is the intentional interference with the plaintiff's right of possession in a chattel, causing damage to the chattel, depriving the plaintiff of its use for a substantial time, or causing bodily harm to the plaintiff or a person or thing in which the plaintiff has a legally protected interest.
- Intentional interference: Intermeddling (directly damaging or using the chattel) or dispossession (taking the chattel from the plaintiff's possession). Intent to do the physical act is sufficient; the defendant need not know the chattel belongs to another.
- Actual damages required: Unlike trespass to land, the plaintiff must show actual harm — damage to the chattel, loss of use, or other cognizable injury. Nominal damages alone will not support a trespass-to-chattels claim.
G. Conversion
Conversion is the intentional exercise of dominion or control over the plaintiff's chattel that so seriously interferes with the plaintiff's right of possession that it is fair to require the defendant to pay the chattel's full value.
- Intent: The defendant need only intend the act of dominion or control. Good-faith mistake is not a defense. Even a bona fide purchaser of stolen goods is liable for conversion.
- Serious interference: Factors distinguishing conversion from trespass to chattels include: duration of dominion, extent of use, intent to assert a right inconsistent with the owner's right, degree of harm, inconvenience and expense caused to the plaintiff.
- Remedy: The plaintiff may recover the full fair market value of the chattel at the time of conversion (a "forced sale"), or may seek replevin (return of the chattel). Once the plaintiff recovers the full value, title passes to the defendant.
| Issue | Trespass to Chattels | Conversion |
|---|---|---|
| Severity of interference | Minor or moderate | Major — substantially deprives plaintiff of use |
| Damages | Actual damages for diminished value or loss of use | Full fair market value of the chattel (forced sale) |
| Good-faith defense? | No | No |
| Intangibles | Some courts extend to electronic data | Traditionally limited to tangible property; modern trend extends to intangibles |
III. Defenses to Intentional Torts
A. Consent
Consent is a complete defense to an intentional tort. It may be express (words or writing) or implied (by custom, conduct, or circumstances). Consent is invalid if obtained by fraud (as to an essential matter), duress, or if given by a person lacking capacity (e.g., minors, intoxicated persons, incompetents — though emergency implied consent may apply). Consent to a criminal act is generally not a valid defense in the majority view.
Key points on scope: Consent is limited to the scope given. If a defendant exceeds the scope of consent (e.g., a surgeon operates on the wrong knee), the defendant is liable for battery. In contact sports, participants impliedly consent to contacts that are a normal part of the game, but not to intentional fouls designed to injure.
B. Self-Defense
A person may use reasonable force to prevent an imminent threatened battery, assault, or false imprisonment when the person reasonably believes they are being or are about to be attacked. The force used must be proportional to the threat. Deadly force is only justified to prevent death or serious bodily harm. There is no duty to retreat in most jurisdictions (including California) before using non-deadly force, and many jurisdictions (including California under the Castle Doctrine) do not require retreat before using deadly force.
The initial aggressor generally cannot claim self-defense unless they completely withdraw from the encounter and communicate that withdrawal to the other party. If the other party then continues the attack, the original aggressor may then exercise self-defense.
C. Defense of Others
A person may use reasonable force to defend a third person under the same circumstances in which self-defense would be available. Under the modern/majority rule (including California), the defendant is justified if they reasonably believe the third party is entitled to use self-defense. Under the older minority "alter ego" rule, the defendant stands in the shoes of the third party and is only justified if the third party actually was entitled to use self-defense.
D. Defense of Property
A person may use reasonable force (but never deadly force) to defend real or personal property after first making a verbal demand to desist (unless it would be futile or dangerous). The defender must reasonably believe the intrusion or interference is occurring or imminent. Mechanical devices (spring guns, traps) that use deadly force are never permitted to protect property alone (Katko v. Briney).
California Penal Code section 198.5 creates a presumption that a person who uses deadly force against an intruder who unlawfully and forcibly enters the person's residence had a reasonable fear of imminent peril of death or great bodily injury. This is California's version of the Castle Doctrine, applicable in the criminal context and informing civil tort analysis.
E. Necessity
1. Public Necessity
A person may interfere with the property of another when it is reasonably necessary to avert a public disaster or to protect a significant number of people. Public necessity is a complete defense — no liability for the property damage, even if the belief later proves mistaken (as long as it was reasonable).
2. Private Necessity
A person may interfere with the property of another to protect their own person or property, or a limited number of people. Private necessity is a qualified/incomplete defense — the defendant must pay for any actual damages caused, but is not liable for nominal or punitive damages, and the property owner may not use force to expel the defendant exercising private necessity (Ploof v. Putnam; Vincent v. Lake Erie).
The key tested distinction: Public necessity = complete defense (no liability). Private necessity = qualified defense (must pay for actual damages, but privileged to remain on the land). A property owner who ejects someone exercising private necessity commits a tort (e.g., battery, trespass).
IV. Negligence
Negligence is by far the most heavily tested tort topic on the California Bar Exam. Every negligence analysis requires discussion of four elements: duty, breach, causation (actual and proximate), and damages.
A. Duty
The general rule is that every person owes a duty to exercise reasonable care (the care of a reasonably prudent person under the same or similar circumstances) to avoid foreseeable risks of harm to foreseeable plaintiffs.
1. Foreseeability of Plaintiff — The Cardozo/Andrews Debate
Cardozo view (majority): The defendant owes a duty only to plaintiffs within the foreseeable zone of danger created by the defendant's conduct (Palsgraf v. Long Island R.R.). Andrews view (minority): The defendant owes a duty to the world at large; foreseeability is properly addressed under proximate cause, not duty.
California applies a multifactor balancing test from Rowland v. Christian (1968) to determine the existence and scope of duty. The factors are: (1) foreseeability of harm, (2) degree of certainty the plaintiff suffered injury, (3) closeness of connection between the defendant's conduct and the injury, (4) moral blame, (5) policy of preventing future harm, (6) burden on the defendant and the community, (7) availability and cost of insurance. This test replaces the traditional common-law categories in many contexts.
2. Standard of Care for Specific Categories
Children: A child is held to the standard of a reasonably careful child of the same age, intelligence, and experience. Exception: A child engaged in an adult activity (e.g., driving a car, operating a motorboat) is held to the adult standard of care.
Professionals: Professionals (doctors, lawyers, architects) are held to the standard of a reasonably competent professional in the same field. Specialists are held to the standard of a reasonably competent specialist. In medical malpractice, the locality rule (same or similar community) has been largely abandoned in favor of a national standard.
Common carriers and innkeepers: Under the common law, held to the highest degree of care. Under the modern/California approach, held to the standard of a reasonably prudent common carrier or innkeeper (recognizing that the nature of the activity informs what is "reasonable").
Emergency doctrine: A person confronted with a sudden emergency not of their own making is held to the standard of a reasonable person facing the same emergency. This does not create a lower standard; it adjusts the circumstances under which reasonableness is evaluated.
3. Special Duty Rules
No duty to act / Rescue: There is generally no affirmative duty to act to protect or rescue another, even if rescue would be easy and costless. Exceptions creating an affirmative duty include:
- Special relationship: Parent-child, employer-employee, carrier-passenger, innkeeper-guest, school-student, landlord-tenant, business invitor-invitee.
- Voluntary assumption of duty: Once a person begins a rescue, they must act with reasonable care and not leave the victim in a worse position (Tarasoff-type situations in CA).
- Creation of the peril: If the defendant's own conduct (even if non-negligent) created the danger, they have a duty to act reasonably to mitigate it.
- Statutory duty: Some statutes impose affirmative duties (e.g., hit-and-run statutes).
Tarasoff duty: In Tarasoff v. Regents of University of California (1976), the California Supreme Court held that a therapist who knows or should know that a patient poses a serious danger of violence to a foreseeable victim has a duty to use reasonable care to protect the intended victim, which may include warning the victim. This applies to mental health professionals and has been extended by statute (Cal. Civ. Code section 43.92).
4. Landowner/Occupier Duties
| Status of Entrant | Common Law Duty | California Rule |
|---|---|---|
| Trespasser (undiscovered) | No duty (except no willful or wanton harm) | California abolished the common-law categories in Rowland v. Christian (1968). All entrants are owed a duty of ordinary reasonable care, with foreseeability and the Rowland factors determining the scope of duty. |
| Trespasser (discovered/anticipated) | Duty to warn of or make safe known, concealed, dangerous artificial conditions | |
| Licensee (social guest) | Duty to warn of or make safe known dangerous conditions not obvious to the licensee | |
| Invitee (business visitor, public invitee) | Duty to inspect, discover, and make safe (or warn of) dangerous conditions | Same as above: ordinary reasonable care under Rowland factors |
Child trespassers — Attractive Nuisance Doctrine: A landowner owes a duty of reasonable care to child trespassers regarding artificial conditions on the land when: (1) the landowner knows or should know children are likely to trespass, (2) the condition poses an unreasonable risk of serious injury or death to children, (3) children because of their youth do not appreciate the danger, (4) the utility of the condition and burden of eliminating the danger are slight compared to the risk, and (5) the landowner fails to exercise reasonable care. California applies this doctrine.
5. Negligent Infliction of Emotional Distress (NIED)
NIED allows recovery for emotional distress caused by the defendant's negligence. Two theories exist:
Zone-of-danger rule (majority/traditional): A plaintiff who is within the zone of physical danger created by the defendant's negligence and fears for their own safety may recover for resulting emotional distress.
Bystander NIED — Thing v. La Chusa (1989): California allows a bystander to recover for NIED when they witness injury to a closely related person. The plaintiff must prove: (1) the plaintiff is closely related to the victim (close family member), (2) the plaintiff was present at the scene of the injury-producing event at the time it occurred and was aware that it was causing injury to the victim, and (3) the plaintiff suffered serious emotional distress — a reaction beyond what a disinterested witness would experience.
Direct victim NIED: When the defendant's negligence is directly aimed at the plaintiff (e.g., misdiagnosis, negligent handling of a relative's remains), the plaintiff may recover even absent physical impact or zone-of-danger concerns. California recognizes this in Molien v. Kaiser Foundation Hospitals (1980).
B. Breach
Breach occurs when the defendant's conduct falls below the applicable standard of care. The jury determines whether the defendant acted as a reasonably prudent person would have under the circumstances.
1. Hand Formula (Risk-Utility Balancing)
Judge Learned Hand's formula (United States v. Carroll Towing): The defendant is negligent if the burden of precaution (B) is less than the probability of harm (P) multiplied by the gravity of harm (L). Negligence if B < P x L.
2. Custom
Evidence that the defendant followed or departed from the custom in the relevant industry is relevant but not conclusive on the issue of breach. Following custom is not an automatic defense; departing from custom is not automatic negligence. Exception: In medical malpractice, departing from the standard of practice in the medical community is generally sufficient to establish breach.
3. Negligence Per Se
The unexcused violation of a statute may establish the defendant's duty and breach. To invoke negligence per se, the plaintiff must show: (1) the defendant violated a statute, (2) the plaintiff is in the class of persons the statute was designed to protect, and (3) the harm is of the type the statute was designed to prevent. In some jurisdictions (including the Restatement), the statutory violation creates a rebuttable presumption of negligence. In other jurisdictions, it is negligence per se (conclusive on duty and breach).
Under California Evidence Code section 669, violation of a statute creates a rebuttable presumption of negligence (duty and breach), which the defendant may rebut by showing the violation was reasonable or justified under the circumstances. This is neither mere evidence nor conclusive proof, but a presumption.
4. Res Ipsa Loquitur
Res ipsa loquitur ("the thing speaks for itself") allows a jury to infer breach when: (1) the accident is of a type that ordinarily does not occur without negligence, (2) the instrumentality causing the harm was in the exclusive control of the defendant, and (3) the plaintiff did not contribute to the injury. When established, res ipsa creates a permissible inference of negligence (the case goes to the jury), not a presumption, in most jurisdictions.
Under California Evidence Code section 646(c), res ipsa creates a rebuttable presumption of negligence, placing the burden of proof on the defendant to show they were not negligent. This is stronger than the mere permissible inference applied in many other states. Also, California relaxes the "exclusive control" requirement, focusing instead on whether the defendant had a right of control over the instrumentality (Ybarra v. Spangard).
C. Causation
1. Actual Cause (Cause-in-Fact)
But-for test: The defendant's conduct is the actual cause of the plaintiff's harm if the harm would not have occurred but for the defendant's negligence. When two independent causes are each sufficient to produce the harm (concurrent causes), the substantial factor test applies: each defendant's conduct is an actual cause if it was a substantial factor in producing the harm.
Alternative liability (Summers v. Tice): When two or more defendants acted negligently but only one actually caused the harm, and the plaintiff cannot determine which one, the burden of proof shifts to each defendant to show that their negligence was not the actual cause. If no defendant can carry this burden, both are jointly and severally liable.
Market share liability: In California (Sindell v. Abbott Laboratories), when the plaintiff cannot identify which manufacturer's product caused the injury, each defendant may be held liable for the proportion of the judgment that corresponds to its share of the relevant market. This is largely limited to fungible products (originally DES cases).
California pioneered market share liability in Sindell v. Abbott Laboratories (1980). Under this approach, each defendant manufacturer is liable for its percentage of the relevant market share. The plaintiff need not join all manufacturers, but must join a "substantial share" of the market. Each defendant can exculpate itself by proving its product could not have caused the plaintiff's injury. Liability is several only (each pays only its market share), not joint.
2. Proximate Cause (Legal Cause)
Proximate cause limits liability to harms that bear a sufficiently close relationship to the defendant's negligence. The predominant test is foreseeability: the defendant is liable for all harmful results that are the foreseeable consequences of their negligent conduct. The precise manner or extent of harm need not be foreseeable — only the general type of harm.
Intervening and superseding causes: An intervening cause is an event occurring after the defendant's negligence that contributes to the plaintiff's harm. An intervening cause that is foreseeable (or a normal response to the situation created by the defendant) does not break the chain of proximate causation. An intervening cause that is unforeseeable and extraordinary is a superseding cause that breaks the chain, relieving the defendant of liability.
Categories of intervening causes that are generally foreseeable (not superseding):
- Subsequent medical malpractice in treating the plaintiff's injury
- Negligent rescue attempts
- Plaintiff's own efforts to mitigate harm
- Subsequent disease or infection resulting from the injury
- Reactions of third persons (e.g., fleeing from danger created by defendant)
Categories of intervening causes that are generally superseding:
- Extraordinary acts of nature (unforeseeable natural disasters)
- Intentional criminal acts of third parties (unless the defendant's negligence created the opportunity — e.g., negligent security)
- Unforeseeable self-harm by the plaintiff
The eggshell skull (thin skull) rule applies to proximate cause: a defendant takes the plaintiff as they find them. If the plaintiff has a pre-existing condition that makes the harm worse than expected, the defendant is liable for the full extent of the harm, even if it was unforeseeable. The type of harm must be foreseeable, but the extent need not be.
D. Damages
The plaintiff must prove actual damages to maintain a negligence action. Unlike intentional torts (where nominal damages suffice for trespassory torts), negligence requires proof of real, compensable harm — physical injury, property damage, or consequential economic loss.
Types of recoverable damages in negligence:
- Economic damages: Medical expenses (past and future), lost wages and earning capacity, property damage/repair costs.
- Non-economic damages: Pain and suffering, emotional distress, loss of enjoyment of life, loss of consortium (available to the spouse of an injured person).
- Punitive damages: Generally not available in ordinary negligence. Available only when the defendant's conduct amounts to malice, oppression, or fraud (Cal. Civ. Code section 3294) — effectively requiring willful, wanton, or reckless misconduct.
MICRA (Medical Injury Compensation Reform Act): California caps non-economic damages in medical malpractice cases. As amended by Proposition 35 (effective 2023), the cap is $350,000 for cases not involving wrongful death and $500,000 for wrongful death cases, with the caps increasing annually by 2% for 10 years. Attorney's fees are also limited on a sliding scale.
V. Defenses to Negligence
A. Contributory Negligence
Under the traditional contributory negligence rule (still followed in a handful of jurisdictions), any negligence by the plaintiff that was a contributing cause of the harm completely bars recovery. This harsh rule has been abandoned by the vast majority of jurisdictions, including California.
B. Comparative Fault
Under comparative fault, the plaintiff's recovery is reduced by the plaintiff's percentage of fault. Two systems exist:
- Pure comparative fault: The plaintiff may recover regardless of the percentage of fault. A plaintiff who is 90% at fault recovers 10% of their damages. California follows this rule (Li v. Yellow Cab Co., 1975).
- Modified comparative fault: The plaintiff is barred from recovery if their fault reaches a threshold — either 50% (plaintiff barred if equally at fault as defendant) or 51% (plaintiff barred only if more at fault than defendant). This is the majority rule nationally.
California applies pure comparative fault to all negligence actions. In Li v. Yellow Cab, the California Supreme Court replaced contributory negligence with comparative fault. This system also applies to strict liability claims in California (Daly v. General Motors, 1978). In the comparative fault regime, joint and several liability has been modified by Proposition 51 (1986): each defendant is jointly and severally liable for the plaintiff's economic damages but is only severally liable (proportional to fault) for non-economic damages.
C. Assumption of Risk
Assumption of risk occurs when the plaintiff voluntarily encounters a known risk. It comes in two forms:
1. Express Assumption of Risk
The plaintiff explicitly agrees (usually in writing, such as a waiver) to accept the risk of the defendant's negligence. Generally enforceable unless: (1) it violates public policy (e.g., essential services, gross disparity in bargaining power), (2) it is ambiguous, or (3) it attempts to cover intentional or grossly negligent conduct.
Under California Civil Code section 1668, contracts purporting to exempt someone from liability for fraud, willful injury, or violation of law are against public policy and void. Express assumption of risk waivers for ordinary negligence are generally enforceable in recreational activities but may be invalidated for essential services (e.g., hospitals, public utilities, residential landlords) under the Tunkl v. Regents (1963) factors.
2. Implied Assumption of Risk
Primary implied assumption of risk: The defendant owed no duty to the plaintiff in the first place because the risk was inherent in the activity. This is a complete bar to recovery because it negates the duty element. Common in sports and recreational activities. Under California's Knight v. Jewett (1992), participants in active sports assume the risks inherent in the sport, and co-participants owe only a duty not to increase the risks beyond those inherent in the sport (i.e., no duty for ordinary negligence, only liability for intentional or reckless conduct).
Secondary implied assumption of risk: The defendant owed a duty but the plaintiff knowingly and voluntarily encountered the risk. Under California and the modern approach, secondary implied assumption of risk is merged into the comparative fault analysis and is not a complete bar. It reduces recovery based on the plaintiff's percentage of fault.
| Type | Effect | California Approach |
|---|---|---|
| Express assumption of risk | Complete bar if enforceable | Enforceable for recreational activities; subject to Tunkl factors for essential services |
| Primary implied assumption of risk | Complete bar (no duty) | Complete bar — applies to risks inherent in sports and recreational activities (Knight v. Jewett) |
| Secondary implied assumption of risk | Traditionally a complete bar | Merged into comparative fault — reduces but does not bar recovery |
VI. Strict Liability
Strict liability imposes liability without fault. The plaintiff need not prove that the defendant was negligent or intended to cause harm. The key categories are abnormally dangerous activities, animals, and products liability.
A. Abnormally Dangerous Activities
A person who engages in an abnormally dangerous activity is strictly liable for harm resulting from the dangerous propensity of the activity, even if the person exercised the utmost care.
Under the Restatement (Second) of Torts section 520, factors for determining whether an activity is abnormally dangerous include:
- High degree of risk of some harm to persons, land, or chattels
- Likelihood that the harm will be great
- Inability to eliminate the risk by the exercise of reasonable care
- Activity is not a matter of common usage
- Inappropriateness of the activity to the location where it is conducted
- Value to the community vs. the danger
Classic examples: blasting/explosives, storing large quantities of flammable liquids, crop dusting, fumigation with toxic chemicals, maintaining large reservoirs in populated areas, certain types of hazardous waste disposal.
Strict liability for abnormally dangerous activities is limited to the type of harm that makes the activity dangerous. If an explosion at a blasting site causes rocks to fly (strict liability applies), but merely startles a mink on a nearby farm causing it to kill its young, strict liability may not apply because the harm is not of the type that makes blasting dangerous. Proximate cause still limits liability.
B. Animals
1. Wild Animals
The keeper of a wild animal (an animal not customarily domesticated in the community) is strictly liable for harm caused by the animal's dangerous propensity characteristic of its species, regardless of precautions taken. Strict liability does not apply if the harm results from a characteristic not typical of the species.
2. Domestic Animals
The owner of a domestic animal is strictly liable for harm caused by the animal only if the owner knew or should have known of the animal's dangerous propensity (the "one-bite rule"). Absent such knowledge, the owner is liable only under a negligence standard.
California imposes statutory strict liability on dog owners for dog bites (Cal. Civ. Code section 3342). The owner is strictly liable regardless of prior knowledge of viciousness, if: (1) the person bitten was in a public place or lawfully in a private place, and (2) the harm resulted from a bite (not other actions like jumping or scratching). The one-bite rule does not apply to dog bites in California.
VII. Products Liability
Products liability is one of the most heavily tested areas on the California Bar Exam. A plaintiff injured by a defective product may recover under multiple theories: strict liability, negligence, warranty (implied and express), and misrepresentation.
A. Strict Products Liability
A commercial seller or distributor of a product is strictly liable for harm caused by a defect in the product that makes it unreasonably dangerous to the user or consumer. The plaintiff need not prove negligence, and privity of contract is not required. (Greenman v. Yuba Power Products, 1963 — a landmark California case.)
- Proper defendant: Any commercial seller in the chain of distribution — manufacturer, wholesaler, distributor, retailer. Casual sellers (e.g., garage sale) and service providers (when the service predominates over the product) are generally excluded.
- Proper plaintiff: Any user, consumer, or bystander foreseeably harmed by the defective product. Privity is not required.
- Defective product: The product must contain a manufacturing defect, design defect, or warning defect (failure to warn) when it left the defendant's control.
- Causation: The defect must be the actual and proximate cause of the plaintiff's injury.
- Damages: Physical injury or property damage. Most jurisdictions (including California) do not allow recovery in strict liability for purely economic losses — those must be pursued under warranty or contract theories.
B. Types of Product Defects
1. Manufacturing Defect
A manufacturing defect exists when the product departs from its intended design, making it more dangerous than the manufacturer intended. The product is compared to the manufacturer's own specifications or to other products of the same design. This is strict liability in its purest form — the defendant is liable even if it exercised all possible care.
2. Design Defect
A design defect exists when the product, though manufactured as intended, is defectively designed. Two tests are used:
Consumer expectations test: The product is defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. This test works well for simple, commonly used products but is difficult to apply to complex products.
Risk-utility test (risk-benefit balancing): The product is defective if the risk of danger inherent in the design outweighs the benefits of the design. Factors include: (1) gravity of the danger, (2) likelihood of the danger, (3) availability of a safer alternative design, (4) feasibility and cost of a safer design, (5) ability to reduce danger without impairing the product's usefulness, (6) the user's ability to avoid the danger, (7) the user's anticipated awareness of the danger.
California applies both tests for design defects. Under Barker v. Lull Engineering (1978), the plaintiff may prove a design defect under either the consumer expectations test or the risk-benefit test. Under the risk-benefit test, once the plaintiff shows the product's design was a proximate cause of injury, the burden shifts to the defendant to prove the benefits of the design outweigh its risks. This burden-shifting is unique to California and very favorable to plaintiffs.
3. Warning Defect (Failure to Warn)
A product has a warning defect when the foreseeable risks of harm could have been reduced or avoided by providing reasonable instructions or warnings and the omission of those warnings renders the product not reasonably safe. The warning must be adequate in content and prominence, and must reach the person who needs it.
Learned intermediary doctrine: For prescription drugs and medical devices, the manufacturer's duty to warn runs to the prescribing physician (the "learned intermediary"), not directly to the patient. The physician is expected to exercise independent medical judgment in deciding whether to prescribe the product and what to tell the patient.
In a failure-to-warn case, always address the presumption of causation: if an adequate warning had been given, it is presumed the plaintiff would have read and heeded it. The defendant can rebut this by showing the plaintiff would have used the product regardless of any warning.
C. Products Liability Defenses
- Comparative fault: In California, a plaintiff's fault in a products liability action reduces recovery proportionally (Daly v. General Motors, 1978). This includes misuse of the product if it is not reasonably foreseeable.
- Assumption of risk: Knowledge and voluntary encounter with a known defect. Merged into comparative fault in California for secondary implied assumption of risk.
- Product misuse: Unforeseeable misuse is a defense. If the misuse is foreseeable, the manufacturer should have anticipated it in the design or warnings.
- Substantial alteration: If the product was substantially altered after leaving the defendant's control and the alteration caused the injury, the defendant is not liable. The product must reach the user without substantial change in the condition in which it was sold.
- State of the art: Not a defense in strict liability for manufacturing defects. For design and warning defects, evidence that the defendant complied with industry standards or the state of scientific knowledge at the time is relevant but not conclusive.
- Government contractor defense: A manufacturer may be shielded from liability if it manufactured a product according to government specifications.
| Theory | Defect Types | Standard | Key Advantage |
|---|---|---|---|
| Strict Liability | Manufacturing, Design, Warning | No fault required | No need to prove negligence; burden shifts to defendant for design defect (CA) |
| Negligence | Manufacturing, Design, Warning | Defendant failed to exercise reasonable care | Allows recovery for purely economic loss in some cases; broader scope of duty |
| Implied Warranty | Merchantability, Fitness | UCC standards; product must be fit for ordinary purposes | Contract-based; may allow economic loss recovery |
| Express Warranty | Specific representations | Product must conform to representations | No need to prove defect if product does not match express promise |
| Misrepresentation (Restatement section 402B) | Material misrepresentation | Defendant made a material misrepresentation to the public | No need to prove defect; reliance required |
VIII. Vicarious Liability
A. Respondeat Superior
An employer is vicariously liable for the torts of an employee committed within the scope of employment. The employee must be acting in furtherance of the employer's business, not on a purely personal frolic. A detour (minor deviation from employment duties) remains within the scope; a frolic (substantial departure) does not.
Independent contractors: Generally, a principal is not vicariously liable for the torts of an independent contractor. Exceptions: (1) inherently dangerous activities, (2) non-delegable duties (e.g., duty of a landowner to keep premises safe), (3) the principal retains control over the manner of the work, (4) apparent authority (the contractor appears to be an employee to the plaintiff).
Under Privette v. Superior Court (1993) and its progeny, when a landowner hires an independent contractor and the contractor's employee is injured on the job, the landowner is generally not liable — the contractor's workers' compensation coverage is the exclusive remedy. However, under Hooker v. Department of Transportation (2002), the landowner may be liable if the landowner retained control over the work and actually exercised that control in a way that affirmatively contributed to the injury.
B. Other Vicarious Liability Situations
- Joint enterprise: Members of a joint enterprise (agreement to a common purpose, mutual right of control) are vicariously liable for each other's torts committed in furtherance of the enterprise.
- Automobile owner liability: Under California Vehicle Code section 17150, the owner of a vehicle is vicariously liable for the negligence of any person using the vehicle with the owner's permission (permissive-use statute). Many other states do not have such a statute.
- Parent-child: Parents are generally not vicariously liable for children's torts at common law. Exceptions: (1) the parent entrusted a dangerous instrumentality to the child, (2) the child acted as the parent's agent, (3) the parent knew of the child's dangerous propensity and failed to control the child. California imposes limited statutory liability on parents for willful misconduct by minors (Cal. Civ. Code section 1714.1, capped at $25,000 per occurrence).
IX. Nuisance
A. Private Nuisance
A private nuisance is a substantial and unreasonable interference with the plaintiff's use and enjoyment of their land. The plaintiff must have a possessory interest in the land (owner, tenant, or other possessor).
- Substantial interference: The interference must be significant enough that a person of normal sensitivity would find it offensive, annoying, or inconvenient. A hypersensitive plaintiff cannot recover for interferences that would not bother a normal person.
- Unreasonable interference: The gravity of the harm outweighs the utility of the defendant's conduct. Factors include: the extent and character of the harm, the social value of the uses involved, the suitability of each use to the locality, and the burden of avoiding the harm.
A private nuisance can be based on intentional conduct (the defendant knows or is substantially certain the interference will result), negligent conduct, or conduct subject to strict liability.
Remedies: Damages, injunctive relief, or both. Courts balance the hardships; if the cost of abating the nuisance would be disproportionate to the harm, the court may award damages in lieu of an injunction.
"Coming to the nuisance" defense: The fact that the plaintiff "came to the nuisance" by moving to the area after the defendant's activity was already established is not a complete defense but is a factor in the reasonableness analysis.
B. Public Nuisance
A public nuisance is an unreasonable interference with a right common to the general public — such as public health, safety, morals, comfort, or convenience. It is typically abated by a public official or governmental entity. A private individual may sue for a public nuisance only if they suffer harm that is different in kind (not merely degree) from the harm suffered by the general public.
X. Defamation
Defamation is the publication of a defamatory statement of fact concerning the plaintiff to a third party that causes damage to the plaintiff's reputation.
- Defamatory statement: A statement that tends to harm the plaintiff's reputation in the community, lowering them in the estimation of a substantial and respectable group. Statements of pure opinion are not actionable unless they imply underlying defamatory facts.
- Of and concerning the plaintiff: A reasonable person must understand the statement to refer to the plaintiff. The plaintiff need not be named if they are identifiable from context.
- Publication: Communication of the statement to at least one person other than the plaintiff. Each communication is a separate publication under the single-publication rule (one cause of action per edition or broadcast).
- Fault: Depends on the plaintiff's status and the subject matter (see constitutional limitations below).
- Damages: Depends on whether the statement is libel or slander.
A. Libel vs. Slander
| Issue | Libel | Slander |
|---|---|---|
| Form | Written, printed, or other permanent form (including broadcasts in many states, film, internet postings) | Spoken (transient) communication |
| Damages | General damages presumed (libel per se) — plaintiff need not prove special damages. For libel per quod (defamatory only by reference to extrinsic facts), some jurisdictions require special damages. | Plaintiff must prove special damages (actual pecuniary loss) unless the statement is slander per se. |
B. Slander Per Se
Special damages are presumed (no need to prove actual pecuniary loss) when the slander falls into one of these categories:
- Business or profession: Imputation of conduct or characteristics incompatible with the plaintiff's business, trade, or profession.
- Loathsome disease: Imputation that the plaintiff suffers from a loathsome disease (traditionally limited to sexually transmitted diseases and leprosy).
- Unchastity: Imputation of serious sexual misconduct (historically applied primarily to women; modern application is gender-neutral).
- Crime of moral turpitude: Imputation that the plaintiff committed a serious crime involving moral turpitude (a crime involving dishonesty or depravity).
C. Constitutional Limitations on Defamation
The First Amendment imposes fault and damages requirements based on the plaintiff's status and the nature of the speech:
| Plaintiff Type | Fault Standard | Damages |
|---|---|---|
| Public official (government employee with substantial responsibility for government affairs) | Actual malice — knowledge that the statement was false, or reckless disregard for truth or falsity (New York Times v. Sullivan, 1964) | Presumed and punitive damages require actual malice |
| Public figure (general-purpose or limited-purpose) | Actual malice — same as public officials | Same as public officials |
| Private person — public concern | At least negligence (Gertz v. Robert Welch, 1974). States may set a higher standard. | Actual damages only with negligence; presumed/punitive damages require actual malice |
| Private person — private concern | Governed by state law (common-law rules apply) | Presumed damages may be available without actual malice (Dun & Bradstreet v. Greenmoss Builders, 1985) |
"Actual malice" is a constitutional term of art. It does not mean ill will or spite. It means the defendant published the statement with knowledge of its falsity or with reckless disregard for whether it was true or false. "Reckless disregard" requires the defendant to have had subjective awareness of probable falsity — not merely negligent failure to investigate.
D. Defenses to Defamation
- Truth: Truth is an absolute defense to defamation. The defendant need not prove the statement is literally true — substantial truth is sufficient.
- Absolute privilege: Statements made in judicial proceedings, legislative proceedings, executive communications, and between spouses are absolutely privileged — no liability regardless of malice.
- Qualified (conditional) privilege: Applies to statements made in good faith on a subject in which the speaker has an interest or duty to communicate (e.g., employment references, credit reports, reports to authorities). The privilege is lost if abused — by actual malice, excessive publication, or statements beyond the scope of the privilege.
- Fair comment and criticism: Honest opinion on matters of public interest (book reviews, political commentary) is protected. The opinion must be based on disclosed true facts.
- Fair and accurate report: A fair and accurate report of official proceedings or records is privileged.
- Section 230 of the Communications Decency Act: Internet service providers and platforms are immune from liability for content posted by third-party users (federal preemption).
XI. Privacy Torts
The four invasion-of-privacy torts protect distinct interests. They are separate claims and should be analyzed independently.
A. Intrusion upon Seclusion
An intentional intrusion upon the plaintiff's solitude, seclusion, or private affairs that would be highly offensive to a reasonable person. No publication is required. Examples: wiretapping, unauthorized surveillance, hacking into private accounts, physically intruding into a private space.
B. Appropriation of Name or Likeness
The unauthorized use of the plaintiff's name, image, or likeness for the defendant's commercial advantage. This protects both privacy and the right of publicity (the economic value of one's identity). It applies to advertising, merchandising, and commercial endorsements.
California has a strong statutory right of publicity under Cal. Civ. Code section 3344, protecting against the unauthorized use of a person's name, voice, signature, photograph, or likeness for commercial purposes. The statute provides for minimum statutory damages of $750 plus actual damages, profits, and attorney's fees. California also recognizes a common-law right of publicity that extends to post-mortem protection for celebrities.
C. Public Disclosure of Private Facts
The public disclosure of private facts about the plaintiff that would be highly offensive to a reasonable person and are not of legitimate public concern (not newsworthy). Requires widespread publication (unlike defamation, which requires communication to only one person). Truth is not a defense — this tort protects true but private information.
D. False Light
The publication of facts placing the plaintiff in a false light before the public that would be highly offensive to a reasonable person. The defendant must have acted with actual malice (knowledge of falsity or reckless disregard) if the matter is of public concern (Time, Inc. v. Hill). Similar to defamation but broader — the statement need not be defamatory, only distorting or misleading.
Not all jurisdictions recognize false light (some view it as duplicative of defamation). California does recognize false light as a distinct tort. On the bar exam, if a fact pattern involves a false statement, analyze both defamation and false light.
XII. Misrepresentation and Economic Torts
A. Intentional Misrepresentation (Fraud/Deceit)
Intentional misrepresentation requires: (1) a false representation of a material fact (or concealment/nondisclosure when there is a duty to disclose), (2) knowledge of falsity (scienter), (3) intent to induce reliance, (4) justifiable reliance by the plaintiff, and (5) damages.
B. Negligent Misrepresentation
Negligent misrepresentation requires: (1) a false representation made in a business or professional capacity, (2) breach of duty of care (the defendant failed to exercise reasonable care in ascertaining or communicating information), (3) justifiable reliance, and (4) damages. The scope of liability is narrower than for intentional misrepresentation — typically limited to the person or class of persons the defendant intended to reach.
C. Interference with Business Relations
1. Intentional Interference with Contractual Relations
Elements: (1) a valid existing contract between the plaintiff and a third party, (2) the defendant's knowledge of the contract, (3) intentional interference causing breach or disruption, (4) improper conduct (not justified by legitimate business competition), and (5) damages.
2. Intentional Interference with Prospective Economic Advantage
Elements: (1) an economic relationship between the plaintiff and a third party with a probability of future economic benefit, (2) the defendant's knowledge of the relationship, (3) intentional interference by independently wrongful conduct (in California, the interference must involve conduct that is wrongful apart from the interference itself), (4) disruption of the relationship, and (5) damages.
In California, interference with prospective economic advantage requires independently wrongful conduct — the defendant's act must be wrongful by some legal measure other than the fact of interference itself (Della Penna v. Toyota Motor Sales, 1995). This is a higher bar than the Restatement's "improper means" test. However, for interference with existing contracts, the plaintiff need not prove independently wrongful conduct — intentional interference with an existing contract is wrongful in itself.
XIII. Wrongful Death and Survival Actions
A. Wrongful Death
A wrongful death action is a statutory claim brought by the decedent's surviving family members (typically spouse, children, and putative spouse; in California also domestic partners and parents) for their own losses caused by the decedent's death. Recoverable damages include loss of financial support, loss of companionship and consortium, loss of household services, and funeral expenses. Pain and suffering of the decedent are not recoverable in a wrongful death action. Any defenses that could have been raised against the decedent (e.g., comparative fault) are available.
B. Survival Actions
A survival action is the continuation of the decedent's own claim for injuries suffered before death. It is brought by the decedent's estate or personal representative. Recoverable damages include the decedent's pain and suffering before death, medical expenses, lost wages from the time of injury to death, and property damage. Under the traditional rule, punitive damages do not survive, though some jurisdictions (including California in certain cases) allow them.
California Code of Civil Procedure section 377.34, as amended effective 2022, allows recovery of the decedent's pain, suffering, and disfigurement in survival actions, overturning the prior rule that excluded such damages. Punitive damages may also be available in survival actions under certain circumstances.
XIV. Common Essay Patterns
The following are the most frequently tested fact patterns on the California Bar Exam for Torts:
Pattern 1: Multi-Party Accident
A car accident or other incident involving multiple parties, typically testing: negligence (duty, breach, causation, damages), comparative fault, vicarious liability (respondeat superior, permissive-use statute), joint and several liability vs. several-only liability for non-economic damages (Prop 51), and possibly loss of consortium.
Pattern 2: Products Liability
A consumer is injured by a defective product. Test all theories: strict liability (manufacturing defect, design defect, warning defect), negligence, warranty. Identify all defendants in the chain of distribution. Discuss defenses (comparative fault, misuse, alteration). Apply the consumer expectations test and risk-benefit test. Discuss the learned intermediary doctrine if a prescription product is involved.
Pattern 3: Landowner Liability
Someone is injured on another's property. Discuss the common-law categories (trespasser, licensee, invitee) and then the California rule (Rowland v. Christian — ordinary care for all entrants). If a child is involved, address the attractive nuisance doctrine. If an independent contractor is working on the premises, discuss the Privette line of cases.
Pattern 4: Intentional Torts + Defenses
A physical altercation or confrontation involving battery, assault, and possibly IIED. Test defenses: consent, self-defense, defense of others, defense of property. Watch for transferred intent. If the altercation involves speech, overlay defamation and/or privacy torts.
Pattern 5: Defamation + Privacy
A media publication or public statement injures the plaintiff's reputation or invades their privacy. Analyze defamation (libel or slander, fault standard based on plaintiff's public/private status, damages), truth defense, privileges. Then analyze privacy torts — especially public disclosure of private facts and false light. Watch for the First Amendment overlay.
XV. Issue Spotting Checklist
- Is there a physical contact? → Battery (and check if assault preceded it)
- Was someone confined? → False imprisonment (check shopkeeper's privilege)
- Was there extreme conduct causing emotional distress? → IIED (check if bystander claim)
- Did someone enter another's land? → Trespass to land
- Was personal property interfered with? → Trespass to chattels vs. conversion (severity of interference determines which)
- Did someone act carelessly causing injury? → Negligence (duty, breach, causation, damages)
- Was a statute violated? → Negligence per se
- Is there no direct evidence of negligence but the accident speaks for itself? → Res ipsa loquitur
- Was a product involved in the injury? → Products liability (all theories)
- Was there an abnormally dangerous activity? → Strict liability
- Was an animal involved? → Wild animal (strict liability) or domestic animal (one-bite rule or CA dog-bite statute)
- Was an employee acting within the scope of employment? → Respondeat superior
- Was someone's property use interfered with? → Nuisance (public and private)
- Was a defamatory statement made? → Defamation (determine libel vs. slander, public vs. private plaintiff)
- Was private information disclosed? → Public disclosure of private facts
- Was someone portrayed in a misleading way? → False light
- Was someone's name/likeness used commercially? → Appropriation
- Did someone intrude on another's private affairs? → Intrusion
- Was there a false statement inducing reliance? → Misrepresentation (intentional or negligent)
- Did someone interfere with a contract or business relationship? → Interference torts
- Did someone die? → Wrongful death + survival action
- Was the plaintiff also at fault? → Comparative fault (pure in CA)
- Was there an inherent risk in an activity? → Primary assumption of risk
- Did the plaintiff sign a waiver? → Express assumption of risk (check Tunkl factors in CA)
- Were there multiple defendants? → Joint and several liability for economic damages, several only for non-economic (Prop 51)
XVI. Exam Writing Tips
Organize by claim, not by party. For each potential claim, use IRAC: (1) state the Issue, (2) state the Rule, (3) Apply the facts, (4) state the Conclusion. In torts, always analyze every viable theory — do not skip a theory just because another theory is stronger.
Always address defenses. After analyzing each claim, address applicable defenses. For negligence, always discuss comparative fault. For intentional torts, discuss consent, self-defense, and other privileges. For products liability, discuss misuse, alteration, and comparative fault.
State the California rule explicitly. Even if the common-law rule is the same, California examiners want to see that you know the California-specific approach. Always say "Under California law..." or "In California..." and cite the leading case or statute. Key cases to cite: Li v. Yellow Cab (comparative fault), Rowland v. Christian (landowner duty), Greenman v. Yuba Power (strict products liability), Barker v. Lull (design defects), Thing v. La Chusa (bystander NIED), Knight v. Jewett (primary assumption of risk), Tarasoff (duty to warn).
Causation requires separate analysis of actual and proximate cause. Actual cause (but-for test or substantial factor test) and proximate cause (foreseeability) are distinct elements. Do not conflate them. When an intervening act appears in the fact pattern, analyze whether it is a superseding cause that breaks the chain of proximate causation.
Conclude on damages. Do not end your answer without discussing what the plaintiff can recover. Mention economic damages, non-economic damages, and whether punitive damages are available. For multiple defendants, address allocation under Proposition 51.
XVII. Mnemonics & Memory Aids
The intentional torts to remember for transferred intent (first 4 plus trespass to chattels): Battery, Assault, Trespass to Land, False Imprisonment (BATF). IIED and Conversion are intentional torts but transferred intent does NOT apply to them.
The four categories of slander per se (where damages are presumed without proof of special damages).
The four privacy torts.
The four elements of negligence.
XVIII. Key Distinctions
| Issue | Common Law / Majority Rule | California Rule |
|---|---|---|
| Comparative fault | Modified (plaintiff barred at 50% or 51%) | Pure comparative fault — no bar regardless of percentage (Li v. Yellow Cab) |
| Landowner duty | Varies by entrant status (trespasser, licensee, invitee) | Ordinary reasonable care to all entrants (Rowland v. Christian) |
| Negligence per se | Conclusive on duty and breach (many jurisdictions) | Rebuttable presumption of negligence (Cal. Evid. Code section 669) |
| Res ipsa loquitur | Permissible inference of negligence | Rebuttable presumption (Cal. Evid. Code section 646(c)) |
| Design defect test | Risk-utility test (Restatement Third); consumer expectations test disfavored | Either consumer expectations OR risk-benefit test; burden shifts to defendant under risk-benefit (Barker v. Lull) |
| Strict liability + comparative fault | Many states do not apply comparative fault to strict liability | Comparative fault applies to strict products liability (Daly v. General Motors) |
| Joint and several liability | Traditional: full joint and several for all damages | Joint and several for economic damages; several only for non-economic (Prop 51) |
| Dog bite liability | One-bite rule (strict liability only if owner knew of vicious propensity) | Statutory strict liability for dog bites (Cal. Civ. Code section 3342) |
| Bystander NIED | Zone of danger (majority); Dillon v. Legg factors (minority) | Thing v. La Chusa test (closely related, present at scene, serious distress) |
| Assumption of risk (secondary) | Complete bar in some jurisdictions | Merged into comparative fault — reduces but does not bar (Knight v. Jewett) |
| Vehicle owner liability | No vicarious liability for permissive users (common law) | Owner vicariously liable for permissive user's negligence (Veh. Code section 17150) |
| Survival action damages | Many states exclude pain and suffering | Pain, suffering, and disfigurement recoverable (CCP section 377.34, amended 2022) |