Biakanja Factors

Biakanja v. Irving (1958) 49 Cal.2d 647, involved a negligence action against a notary public who prepared a will in which the plaintiff was named as the sole beneficiary. The will was denied probate because it lacked proper attestation. As a result, instead of receiving the entire estate under the will, the plaintiff received only one-eighth of the estate by intestate succession. (Id. at p. 648.) Applying the six factors listed above (Biakanja factors), Biakanja stated that the defendant must have been aware that the plaintiff would suffer a loss if the will were declared invalid, and the plaintiff would have received the entire estate but for the defendant's negligence. (Id. at pp. 650-651.) The defendant clearly was not qualified to draft a will and supervise its execution, and by doing so he had engaged in the unauthorized practice of law, a misdemeanor. (Id. at p. 651.) Biakanja concluded that the defendant owed the plaintiff a duty of care despite the lack of privity of contract. (Ibid.) Stewart v. Cox (1961) 55 Cal.2d 857 applied the Biakanja factors in holding that a concrete subcontractor was liable to homeowners for the negligent construction of a swimming pool, despite the lack of privity of contract. (Id. at p. 863.) The plaintiffs had settled with the general contractor who agreed to construct the pool for them. (Id. at p. 860.) Stewart stated that the subcontractor's work was intended to benefit the plaintiffs as owners and that it was foreseeable that they would suffer property damage if the pool was not sound. There was no doubt that the plaintiff suffered serious damage caused by escaping water, and the trial court found based on ample evidence that the injury resulted from the defendant's negligence. (Id. at p. 863.) Stewart concluded that the subcontractor "should not be exempted from liability if negligence on his part was the proximate cause of the damage to plaintiffs." (Ibid.) Sabella v. Wisler (1963) 59 Cal.2d 21 27 Cal. Rptr. 689, 377 P.2d 889 held that a developer and contractor who built a home for the purpose of offering it for sale to the public was liable to the purchasers for negligent construction. (Id. at pp. 27-30.) The house was negligently constructed on insufficiently compacted filled land. (Id. at pp. 23-24.) Applying the Biakanja factors, Sabella stated that although the house was not built specifically for the plaintiffs, they were members of the class of prospective home buyers for which the defendant built the house. (Sabella, supra, at p. 28.) "Thus as a matter of legal effect the home may be considered to have been intended for the plaintiffs, and Wisler owed them a duty of care in construction. " (Ibid.) The harm to prospective home buyers was foreseeable, it was undisputed that the house was seriously damaged, and there was a close connection between the defendant's negligence and the injury suffered. (Ibid.) "Finally, the prevention of future negligent construction of buildings upon insufficiently supportive material would not be furthered by exempting defendant Wisler from liability for his negligence. " (Id. at p. 29.)