CACI 401 Basic Standard of Care

401. Basic Standard of Care

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 that person 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.

You must decide how a reasonably careful person would have acted in [name of plaintiff/defendant]’s situation.

New September 2003; Revised May 2020

Nakase Wade | California Business Lawyers & Corporate Lawyers

Sources and Authority

• “The formulation of the standard of care is a question of law for the court. Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether a party’s conduct has conformed to the standard.” (Ramirez v. Plough, Inc (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167], internal citations omitted.)
• Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.”
• Restatement Second of Torts, section 283, provides: “Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.”
• The California Supreme Court has stated: “Because application of [due care] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances. [Citations].” (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d 685, 884 P.2d 142]; see also Tucker v. Lombardo (1956) 47 Cal.2d 457, 464 [303 P.2d 1041].)
• The proper conduct of a reasonable person in a particular situation may become settled by judicial decision or may be established by statute or administrative regulation. (Ramirez, supra, 6 Cal.4th at p. 547.) (See CACI Nos. 418 to 421 on negligence per se.)
• Negligence can be found in the doing of an act, as well as in the failure to do an act. (Rest.2d Torts, § 284.)

Secondary Sources

6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 998, 999

California Tort Guide (Cont.Ed.Bar 3d ed.) § 1.3

1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, §§ 1.01, 1.02, 1.30 (Matthew Bender)

33 California Forms of Pleading and Practice, Ch. 380, Negligence (Matthew Bender)

16 California Points and Authorities, Ch. 165, Negligence, § 165.31 (Matthew Bender)