Swickheimer v. King

In Swickheimer v. King (1971) 22 Cal.App.3d 220, the question was raised whether violation of either of sections 7068.1 or 7122.5 of the Business and Professions Code, relating to the conduct of the responsible managing employee of a licensed corporate contractor, should give rise to a cause of action for damages. The court observed that both sections appeared to impose an absolute responsibility upon the responsible managing employee (22 Cal.App.3d at p. 224) and relied on that fact in declining to recognize a civil cause of action based on violation of those regulatory provisions. The court stated in pertinent part: "In their closing brief, plaintiffs . . . argue that even if the Business and Professions Code sections are disciplinary in nature, they may still be used as a basis for civil liability. Plaintiffs cite Prosser on Torts (3d ed. 1964), page 191, as authority for the proposition that 'when a statute provides that under certain circumstances particular acts shall or shall not be done, it may be interpreted as fixing a standard for all members of the community, from which it is negligence to deviate.' However, plaintiffs have overlooked the fact that the author goes on to note certain exceptions to this rule, as where the Legislature has enacted a statute which provides for strict liability and which imposes an absolute duty for whose violation there is no recognized excuse. (Prosser on Torts (3d ed. 1964) pp. 198-199.) In the instant case, as noted above, defendant King could be held to have violated only those two Business and Professions Code sections which imposed strict liability." (22 Cal.App.3d at p. 226.)