Ordinary Care Rule In California

A cause of action for negligence requires a plaintiff to show the "defendant had a duty to use due care, that he breached that duty, and that the breach was the proximate or legal cause of the resulting injury. Citation." ( Nally v. Grace Community Church (1988) 47 Cal. 3d 278, 292-293, 253 Cal. Rptr. 97, 763 P.2d 948.) "Every negligence case is governed by the rule of general application that all persons are required to use ordinary care to prevent others from being injured as the result of their conduct." ( Weirum v. RKO General, Inc. (1975) 15 Cal. 3d 40, 46, 123 Cal. Rptr. 468, 539 P.2d 36; Civ. Code, 1714.) The existence of a legal duty to use reasonable care in a particular factual situation is a question of law for the court to decide. ( Adams v. City of Fremont (1998) 68 Cal. App. 4th 243, 265; 6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, 748, p. 83.) The elements of breach of that duty and causation are ordinarily questions of fact for the jury's determination. ( Andrews v. Wells (1988) 204 Cal. App. 3d 533, 538, 251 Cal. Rptr. 344; 6 Witkin, supra, 749 at p. 86.) A legal duty of reasonable care may arise out of either: (1) "the duty of a person to use ordinary care in activities from which harm might reasonably be anticipated" (i.e., misfeasance), or (2) an affirmative duty where the defendant has a special relationship with the plaintiff or others in plaintiff's class (i.e., nonfeasance). (6 Witkin, supra, 732 at pp. 60-61.) "Thus, in considering whether a person had a legal duty in a particular factual situation, a distinction must be made between claims of liability based upon misfeasance and those based upon nonfeasance." (Andrews v. Wells, supra, 204 Cal. App. 3d at p. 539.) Weirum described the distinction between a legal duty arising out of action, or misfeasance, and inaction, or nonfeasance: "Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention. . . . Liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care discussed above." ( Weirum v. RKO General, Inc., supra, 15 Cal. 3d at p. 49.)