California law establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others. (Civ. Code, § 1714, subd. (a).) While this court may and sometimes does find exceptions to the general duty rule, the recognized grounds for doing so (Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 [70 Cal.Rptr. 97, 443 P.2d 561]) are lacking here. That drivers may lose control of their vehicles and leave a freeway for the shoulder area, where they may collide with any obstacle placed there, is not categorically unforeseeable. Nor does public policy clearly demand that truck drivers be universally permitted, without the possibility of civil liability for a collision, to take nonemergency breaks alongside freeways in areas where regulations permit only emergency parking.
The general rule in California is that “[e]veryone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .” (Civ. Code, § 1714, subd. (a).) In other words, “each person has a duty to use ordinary care and `is liable for injuries caused by his failure to exercise reasonable care in the circumstances . . . .'” (Parsons v. Crown Disposal Co. (1997) 15 Cal.4th 456, 472 [63 Cal.Rptr.2d 291, 936 P.2d 70], quoting Rowland v. Christian, supra, 69 Cal.2d at p. 112 (Rowland).) In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Rowland, at p. 113; accord, e.g., Castaneda v. Olsher, supra, 41 Cal.4th at p. 1213; John B. v. Superior Court (2006) 38 Cal.4th 1177, 1192 [45 Cal.Rptr.3d 316, 137 P.3d 153]; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477 [110 Cal.Rptr.2d 370, 28 P.3d 116]; Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 473.) As we have also explained, however, in the absence of a statutory provision establishing an exception to the general rule of Civil Code section 1714, courts should create one only where “clearly supported by public policy.” (Rowland, at p. 112; accord, John B., at p. 1191; Merrill v. Navegar, at p. 477.)2
Before applying the Rowland considerations to the duty question posed here, we note an important feature of the analysis: the Rowland factors are evaluated at a relatively broad level of factual generality. Thus, as to foreseeability, we have explained that the court’s task in determining duty “is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed . . . .” (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6 [224 Cal.Rptr. 664, 715 P.2d 624]; accord, Parsons v. Crown Disposal Co., supra, 15 Cal.4th at p. 476; Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1841 [20 Cal.Rptr.2d 913].)
In applying the other Rowland factors, as well, we have asked not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy. Thus in Rowland itself, considering whether the traditional property-law categories of invitee, licensee and trespasser should govern a property owner’s duty of care, we observed that while in particular cases the certainty of injury, the burden of exercising due care, or the availability and cost of insurance may be greater as to one class of persons entering real property than as to another, such particular instances “do not warrant the wholesale immunities resulting from the common law classifications.” (Rowland, supra, 69 Cal.2d at p. 119; see also Knight v. Jewett (1992) 3 Cal.4th 296, 315-320 [11 Cal.Rptr.2d 2, 834 P.2d 696] [danger of chilling participation in active sports justifies a categorical exception to the duty of ordinary care for participants’ careless acts toward coparticipants]; Parsons v. Crown Disposal Co., supra, 15 Cal.4th at pp. 474-475 [societal burden of imposing a duty to guard against fright to a horse when properly using a vehicle or machine justifies not recognizing such a duty]; Castaneda v. Olsher, supra, 41 Cal.4th at pp. 1216-1217 [declining to recognize a landlord’s duty not to rent to gang members in light of the burdens that recognizing such a duty would create].)
By making exceptions to Civil Code section 1714’s general duty of ordinary care only when foreseeability and policy considerations justify a categorical no-duty rule, we preserve the crucial distinction between a determination that the defendant owed the plaintiff no duty of ordinary care, which is for the court to make, and a determination that the defendant did not breach the duty of ordinary care, which in a jury trial is for the jury to make. The distinction as to foreseeability is explained in Ballard v. Uribe, supra, 41
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About the Author
Attorney Steven Peck has been practicing law since 1981. A former successful business owner, Mr. Peck initially focused his legal career on business law. Within the first three years, after some colleagues and friend’s parents endured nursing home neglect and elder abuse, he continued his education to begin practicing elder law and nursing home abuse law.