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What Kind of Legal “Duty” Supports a Negligence Case?


The existence of a legal duty is a fundamental element of a negligence case or claim. If the defendant did not owe a duty to the plaintiff, courts will not hold the defendant legally liable for the plaintiff’s injuries, even if the defendant was responsible for the harm.

Generally, courts consider the existence (or lack) of a legal duty to be an issue of law, meaning that the existence of a duty is determined by the court, rather than the jury.


In California, most legally-recognized duties fall into one of two categories, the duty to act to prevent harm or injury to others and the duty to exercise ordinary care when performing activities.

Other duties also exist, some of which are created by or recognized in statutes, but most duties fall within one (or both) of these broad categories.

The duty to use ordinary care generally applies to all people, businesses, and entities responsible for engaging in activities or managing property in California. This duty is codified in California Civil Code, Section 1714(a).

When examining a specific case or situation to determine the existence of a legal duty, California courts may use a variety of factors. The presence or absence of any one factor (or even several) is not determinative; instead, the court weighs the facts and circumstances in light of these factors (and any relevant laws, rules, or precedent). The factors include:

1. The risks involved in the activity that caused the harm.

2. The identities and relationship of the plaintiff and defendant.

3. The connection (if any) between the defendant’s conduct and the plaintiff’s injury.

4. The social utility (if any) of the activity that caused the harm.

5. The amount and nature of risks created by the defendant’s activity (or failure to act).

6. Moral and financial issues involved in holding the defendant (or others in the defendant’s position) liable.

7. The foreseeability of the plaintiff’s injury (or others like it).

8. Whether or not insurance exists to protect the against the risks.

These factors are not the only ones a court may consider; moreover, in some situations where a duty is established by law, no balancing test or legal evaluation may be required.

Every negligence case is unique and heavily fact-dependent. If you have suffered injury, obtain a consultation with an experienced lawyer immediately. Delay may harm your right to recover or even cost you your legal rights.


Disclaimer: THIS ARTICLE IS FOR INFORMATIONAL PURPOSES ONLY, AND DOES NOT CONSTITUTE LEGAL ADVICE OR CREATE AN ATTORNEY-CLIENT RELATIONSHIP BETWEEN THE AUTHOR AND ANY PERSON. Your rights and experiences may vary. Never use an online article (including this one) to evaluate your legal claims. Speak with an experienced lawyer promptly to obtain a personalized evaluation of your claims, possible damages, and options. You may lose or compromise your rights if you delay in consulting legal counsel. Negligence claims are complicated and fact-dependent. If you believe you have a claim against someone who injured you, a lawyer who represented you in a previous lawsuit, or any other type of legal claim, consult an experienced lawyer immediately for an evaluation of your personal rights and claims.

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