Call Today: (760) 751-9100

Personal Injury and Negligence Claims

General Negligence: To establish a claim for (general) negligence, you must prove (1) that the defendant was negligent, (2) that you were harmed, and (3) that the defendant’s negligence was a substantial factor in causing your harm. CACI 400. Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation. CACI 401. Auto Accidents (Motor Vehicles and Highway Safety):
  • Basic Standard of Care: A person must use reasonable care in driving a vehicle. Drivers must keep a lookout for pedestrians, obstacles and other vehicles. They must also control the speed and movement of their vehicles. The failure to use reasonable care in driving a vehicle is negligence. CACI 700.
  • Right-of-Way: When the law requires a driver or pedestrian to “yield the right-of-way” to another vehicle or to a pedestrian, this means that the driver or pedestrian must let the other vehicle or the pedestrian go first. Even if someone has the right-of-way, that person must use reasonable care to avoid an accident. CACI 701. However, if a driver or pedestrian reasonably believes that another driver or a pedestrian has given up the right-of-way, then he or she may go first. CACI 702.
  • Left Turns: A driver who is attempting to make a left turn must make sure that no oncoming vehicles are close enough to be a “hazard” before he or she proceeds across each lane. A “hazard” exists if any approaching vehicle is so near or is approaching so fast that a reasonably careful person would realize that there is a danger of a collision. CACI 704.
  • Speed: Failure to drive at a reasonable speed is negligence. Whether a particular speed is reasonable depends on the circumstances such as traffic, weather, visibility and road conditions. Drivers must not drive so fast that they create a danger to people or property. CACI 706. The speed limit is a factor the jury will consider in deciding whether or not a party was negligent. However, a driver is not necessarily negligent just because he or she was driving faster than the speed limit. But a driver may be negligent even if he or she was driving at or below the speed limit. CACI 707.
  • Driving Under the Influence: The presumption of intoxication based on a 0.08 blood level applies to criminal prosecutions only, not to civil cases. For purpose of a civil suit, a driver is “under the influence” when he or she has consumed an amount of alcohol or drugs that impairs his or her ability to drive in a reasonably careful manner. CACI 709.
  • Duties of Care for Pedestrians and Drivers: The duty to use reasonable care does not require the same amount of caution from drivers and pedestrians. While both drivers and pedestrians must be aware that motor vehicles can cause serious injuries, drivers must use more care than pedestrians. CACI 710.
  • Passenger’s Duty of Care: A passenger is not required to be aware of the conditions on the highway and is entitled to expect that a driver will use reasonable care. However, if a passenger becomes aware of (i) a danger on the highway, or (ii) the driver’s impairment or failure to use reasonable care, then the passenger must take reasonable steps to protect his or her own safety. CACI 711.
  • Failure to Wear a Seat Belt: Your damages could be lessened or avoided altogether if the defendant proves that (1) a working seat belt was available, (2) a reasonably careful person in your situation would have used the seat belt, (3) you failed to wear a seat belt, and (4) your injuries would have been avoided or less severe had you used the seat belt. CACI 712.
  • Vehicle Owner Liable for Permissive Use by Another Driver: You can establish a claim against the vehicle owner if (1) another driver was negligent in operating the owner’s vehicle, (2) you were harmed, (3) the person owned the vehicle when you were injured, and (4) the owner, by words or conduct, gave permission to the other driver to use his or her vehicle. If the vehicle owner and operator are related or are employer and employee, that relationship may support a finding that there was implied permission to use the vehicle. If the operator in turn authorizes a third person to operate the vehicle, the third person may be considered to have used the vehicle with the permission of the owner. CACI 720.
Back to Top Railroad Crossing Accidents:
  • Basic Standard of Care: A railroad company’s failure to use reasonable care to avoid causing injury to anyone crossing railroad tracks from a street or roadway is negligence. CACI 800. Railroad companies must obey safety regulations. Regulations state only the minimum measure of care required. Particular conditions and situations may require more care than the regulations require. CACI 801.
  • Warning Signals: A railroad company must post signs or other devices that give the public reasonable warning of the presence of its tracks. It must use reasonable care in the design, installation, operation and maintenance of its warning signals and protective systems. CACI 805.
  • Train Operators and Speed: A train operator’s failure to use reasonable care in operating their trains at railroad crossings is negligence. CACI 800. A train operator must use reasonable care to control the train’s speed as it approaches and passes through a railroad crossing, taking into consideration the location and conditions of the crossing. CACI 803. A train operator must keep a reasonable lookout for vehicles and people. If an operator discovers, or should have discovered, that a vehicle or a person is on or near the track, the operator must use reasonable care to avoid causing harm. CACI 804.
  • Driver’s Duty to Approach Crossing with Care: A driver approaching a railroad crossing is required to use reasonable care to discover whether a train is approaching, which depends on the circumstances. A railroad track is itself a warning of danger. If the driver’s view is blocked, he or she must use greater care than when the view is clear. If a bell or signal has been placed to warn drivers of danger, a driver is not required to use as much care as when there are no such warnings. But even if warning devices are not activated, a driver must use reasonable care in looking and listening for approaching trains. CACI 806.
Back to Top Accidents on Public Transportation (“Common Carriers”):
  • Duty of Common Carrier: A “common carrier” (e.g., taxi cab, train, bus, ship, airplane) provides transportation to the general public for a fee. CACI 900. A common carrier must carry passengers or property safely. They must use the highest care and the vigilance of a very cautious person. They must do all that human care, vigilance and foresight reasonably can do under the circumstances to avoid harm to passengers or property. While a common carrier does not guarantee the safety of its passengers or property that it transports, it must use reasonable skill to provide everything necessary for safe transportation, in view of the transportation used and the practical operation of the business. CACI 902.
  • Vehicles and Equipment: Common carriers must use the highest care in constructing, servicing, inspecting and maintaining their vehicles and equipment for transporting passengers or property. It is responsible for a defect in its vehicles and equipment if it created or knew of the defect, or would have known had it used the highest care. Common carriers must keep up with modern improvements in transportation. While they are not required to seek out and use every new invention, they must adopt commonly accepted safety designs and devices in the vehicles and equipment they use to transport passengers or property. CACI 903.
  • Needy Passengers: If a common carrier voluntarily accepts an ill or a disabled person as a passenger and is aware of that person’s condition, it must use as much additional care as is reasonably necessary to ensure the passenger’s safety. CACI 904. If a common carrier voluntarily accepts a child as a passenger, it must use as much additional care as is reasonably necessary to ensure the child’s safety. CACI 905.
  • Passenger has Lower Duty of Care: While a common carrier must use the highest care for its passengers’ safety, passengers need only use reasonable care for their own safety. CACI 906.
  • Duty to Protect Passenger from Attack by Another Passenger: A common carrier will be negligent in failing to prevent an attack by another if you prove (1) the carrier knew or, by using the highest care, should have known that a passenger was reasonably likely to attack another passenger, and (2) by using the highest care, the carrier could have prevented or reduced the harm from the attack. CACI 908.
Back to Top Slip and Fall (Premises Liability):
  • Premises Liability: To recover in a case because of the way someone managed their property, you must prove (1) that the defendant, owned, leased, occupied or controlled the property, (2) that the defendant was negligent in the use or maintenance of the property, (3) that you were harmed, and (4) that defendant’s negligence was a substantial factor in causing your harm. CACI 1000.
  • Basic Duty of Care: A person who owns, leases, occupies or “controls” property (i.e., uses it as if it were his own) must use reasonable care to keep the property in a reasonably safe condition, and to discover any unsafe conditions and to repair, replace or give adequate warning of anything that could be reasonably expected to harm others. CACI 1001-1002.
  • Obviously Unsafe Conditions: If an unsafe condition is so obvious that a person could reasonably be expected to observe it, then there is no obligation to warn others about that condition. CACI 1004.
  • Sidewalks: Generally, a landowner is under no duty to maintain a public street or sidewalk abutting his property. But an abutting owner must refrain from creating an unsafe condition on the surrounding public streets or sidewalks. CACI 1007.
  • Landlord or Business Proprietor to Guard Against Harm by Others: A landlord or the owner of a business open to the public must use reasonable care to protect tenants, patrons and guests from another person’s harmful conduct on his property if the landlord or business owner can reasonably anticipate this conduct. CACI 1005.
  • Landlord’s Duty: A landlord must conduct reasonable periodic inspections of rental property whenever the landlord has the legal right of possession. Before giving possession of leased property to a tenant, on renewal of a lease, or after retaking possession from a tenant, a landlord must conduct a reasonable inspection of the property for unsafe conditions and must take reasonable precautions to prevent injury due to the conditions that were or reasonably should have been discovered in the process. The inspection must include the common areas under the landlord’s control. After a tenant takes possession, a landlord must take reasonable precautions to prevent injury due to any unsafe condition in an area of the premises under the landlord’s control if the landlord knows or reasonably should have known about it. CACI 1006.
  • Public Property: To establish a claim for a dangerous condition on public property, you must prove (1) that the defendant owned or “controlled” the property (i.e., had the power to prevent, fix or guard against the dangerous condition), (2) that the property was in a dangerous condition at the time of the incident, (3) that the dangerous condition created a reasonably foreseeable risk of the kind of incident that occurred, (4) that negligent or wrongful conduct of defendant’s employee, acting within the scope of his or her employment, created the dangerous condition, or (5) that the defendant had notice of the dangerous condition for a long enough time to have protected against it. CACI 1100-1101. A “dangerous condition” is one that creates a substantial risk of injury to members of the general public, not just a minor risk. CACI 1102. A public entity is not responsible for harm caused by a natural condition of an unimproved public property. CACI 1110. A dangerous condition does not exist just because the entity did not provide traffic control signals. However, the lack of a device or marking may be considered, along with other circumstances, in determining whether the property was dangerous. CACI 1120. A jury must consider whether a reasonably careful person would notice or anticipate a dangerous condition without the warning device. CACI 1121.
  • Recreational Use Defense: One is not responsible for harm to you from your entry on or use of his property for a recreational purpose, unless (1) the defendant knew or should have known of the condition, use, structure or activity on the property that created an unreasonable risk of serious injury, (2) defendant knew or should have known that someone would probably be seriously injured by the dangerous condition, use, structure or activity, and (3) defendant knowingly failed to protect others from the dangerous condition, use, structure or activity. CACI 1010.
Back to Top

Free 30 Minute Telephone Consultation: (760) 751-9100

Law Offices of Sondra S Sutherland BBB Business Review

State Bar of California