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Negligence

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In determining whether a defendant's tortious conduct was the proximate cause of plaintiff's damage, the court must view the general set of circumstances not the particular facts of the case.  So, here, the defendant escrow company's negligence in closing an escrow for the sale of a house led foreseeably to the seller's incurring damages in the form of attorney fees… Read More

A defendant can be held liable for negligent misrepresentation on two disparate theories.  First, under Rest.2d Torts section 311, a defendant may be liable for negligent misrepresentation in endorsing a product that physically harms the plaintiff.  (See Hanberry v. Hearst Corp. (1969) 276 Cal.App.2d 680.)  Here, plaintiff suffered no physical injury and so couldn't rely on that theory to pursue… Read More

Deputy sheriffs arrested Collins, thinking he was drunk and interrupted the paramedics' review of his medical condition.  When Collins was finally seen by a doctor, he was misdiagnosed.  As a result of the poor medical treatment, Collins suffered extensive injuries.  This decision holds that (1) despite having probable cause to arrest Collins, the deputies can be liable in negligence for… Read More

The trial court did not err in awarding attorney fees to defendant noteholder when it prevailed against plaintiff borrower's negligence and fraud claims that were aimed at preventing enforcement of the note and deed of trust through nonjudicial foreclosure.  Even though the plaintiff pursued tort theories, the gist of the action was to prevent enforcement of the note and deed… Read More

A patient may sue a physician for negligently recommending a course of treatment if (1) that course stems from a misdiagnosis of the patient’s underlying medical condition, or (2) all reasonable physicians in the relevant medical community would agree that the probable risks of that treatment outweigh its probable benefits.  The patient's informed consent to the treatment does not absolve… Read More

Negligent misrepresentation differs from intentional misrepresentation on at least two elements.  For fraud, the defendant must know the representation is false; whereas, for negligent misrepresentation, lack of a reasonable basis to believe the representation is true will suffice.  Also, for negligent misrepresentation, no showing of intent to deceive is required, just an intent to induce reliance on the misstated fact. … Read More

In Thing v. La Chusa (1989) 48 Cal.3d 644, the Supreme Court held that to state a claim as a bystander for negligent infliction of emotional distress suffered as a result of seeing injury to another person, the bystander plaintiff had, among other things, to be present at the scene of the accident when it occurs and be aware at… Read More

Summary judgment was improperly entered against plaintiff on claims for negligence and intentional tort arising from a violent collision between plaintiff and defendant during an adult "no check" ice hockey league game.  Plaintiff produced evidence that, if believed, showed that defendant had not only violated league rules but had intentionally injured plaintiff or engaged in conduct so reckless as to… Read More

Plaintiff, the tenant in a commercial building, was injured when his head struck a low beam at the entrance to an upstairs door and as a result he fell down the stairs.  This decision affirms a summary judgment for the landlord based on an exculpatory clause in the lease which absolved the landlord of liability for personal injuries suffered as… Read More

Plaintiffs alleged that defendant had agreed to cremate plaintiff's two dogs individually, but sent them random ashes rather than those of their dogs.  Plaintiffs sought to recover for the emotional distress they suffered as a result.  Held:  Plaintiffs didn't state a breach of contract claim as their vet, not they, had contracted with defendant, but on remand plaintiffs should be… Read More

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