CALIFORNIA TORTS DISTINCTIONS
California tort law follows the general negligence, intentional-tort, and strict-liability framework you learned for the MBE, but California is actually the source of several doctrines the rest of the country later adopted — pure comparative negligence, the abandonment of the landowner trichotomy, the modern strict-products-liability rule, and the bystander emotional-distress test all originated in the California Supreme Court. California also has important statutory overlays (Proposition 51, MICRA, the Dram Shop immunity) that change damages allocation and recovery. This page isolates those California-specific departures and origin points; the universal elements of duty, breach, causation, and damages are in the MBE outline.
📘 This page covers only California's departures from national/majority law. For the full doctrine, see the MBE Torts Long Outline.
I. COMPARATIVE NEGLIGENCE — PURE SYSTEM (Li v. Yellow Cab)
California abolished contributory negligence and adopted a pure comparative-fault system, one of the most consequential California tort distinctions.
A. Pure Comparative Negligence
CA Rule: In Li v. Yellow Cab Co. (1975), the California Supreme Court replaced the all-or-nothing contributory-negligence bar with pure comparative negligence. A plaintiff's recovery is reduced in proportion to her own fault, no matter how great — even a plaintiff who is 90% at fault recovers 10% of her damages. National: many states use modified comparative negligence (recovery barred at 50% or 51% fault); a minority still apply contributory negligence. California: pure comparative fault, with no percentage cutoff.
B. Effect on Defenses
CA Rule: Because Li merged assumption of risk into comparative fault, California now distinguishes primary assumption of risk (no duty owed — a complete bar, e.g., inherent risks of a sport under Knight v. Jewett) from secondary assumption of risk (treated as comparative fault, merely reducing damages). National: assumption of risk historically a complete bar. California: only primary assumption of risk bars; secondary merely reduces.
EXAMPLE: A pedestrian found 70% responsible for a collision still recovers 30% of her damages in California. In a modified-comparative state with a 50% bar she would recover nothing.
ESSAY WRITING TIP: Whenever a defendant raises plaintiff's carelessness, apply pure comparative negligence and assign a percentage; never bar recovery outright for ordinary negligence. If the case involves sports or recreation, separate primary assumption of risk (no duty — complete bar) from secondary (reduces damages).
CA BAR TIP: The grader is testing whether you know California is a pure jurisdiction. Do not import a 50%/51% cutoff from modified-comparative states — that is the most common error.
II. JOINT AND SEVERAL LIABILITY — PROPOSITION 51
California voters in 1986 enacted Proposition 51 (Civil Code § 1431.2), which fundamentally split how joint-and-several liability applies to economic versus non-economic damages.
A. The Economic/Non-Economic Split
CA Rule: Under Civil Code § 1431.2, multiple tortfeasors remain jointly and severally liable for the plaintiff's economic damages (medical bills, lost earnings, property loss), but each is liable only severally — in proportion to that defendant's own share of fault — for non-economic damages (pain and suffering, emotional distress). National: traditional rule imposes full joint-and-several liability for all damages; many states have since modified it. California: Prop 51 makes the economic/non-economic distinction the central allocation rule.
EXAMPLE: A plaintiff suffers $100,000 economic and $300,000 non-economic damages. Defendant A is 20% at fault, Defendant B 80%. The plaintiff may collect the full $100,000 economic damages from either defendant (joint and several), but may collect only $60,000 of non-economic damages from A and $240,000 from B (several only).
ESSAY WRITING TIP: Always separate the verdict into economic and non-economic buckets before allocating. State the § 1431.2 rule explicitly — joint and several for economic, several only for non-economic — and apply each defendant's fault percentage to the non-economic portion.
CA BAR TIP: Prop 51 is a frequent multi-defendant essay issue. The grader wants the two-bucket allocation. Forgetting that economic damages remain fully joint and several is a common miss.
III. LANDOWNER DUTY — Rowland v. Christian
California rejected the rigid common-law trichotomy of invitee/licensee/trespasser in favor of a general reasonable-care standard governed by multi-factor balancing.
A. The Unified Duty of Reasonable Care
CA Rule: In Rowland v. Christian (1968), the California Supreme Court held that a land possessor owes a general duty of ordinary care to all entrants, with the plaintiff's status as invitee, licensee, or trespasser being only one factor. Courts weigh the Rowland factors: foreseeability of harm, certainty of injury, closeness of connection between conduct and injury, moral blame, policy of preventing future harm, burden on the defendant, and availability of insurance. National: most states retain the status-based trichotomy (different duties to invitees, licensees, trespassers). California: a single reasonable-care standard with status as one factor.
B. Statutory Cabining for Trespassers
CA Rule: Civil Code § 847 limits a landowner's liability to certain trespassers injured while committing or fleeing specified felonies, partially restoring status distinctions for criminals. National: varies. California: Rowland's general-duty rule with a narrow felony-trespasser carve-out.
ESSAY WRITING TIP: On a premises-liability essay, do not classify the plaintiff and stop. State the general Rowland duty of reasonable care, then walk through the foreseeability and burden factors. You can mention the entrant's status, but treat it as one factor, not the dispositive category.
CA BAR TIP: This is a marquee California distinction. Reciting the MBE invitee/licensee/trespasser duty tiers as controlling is the classic error. Lead with Rowland and the reasonable-care standard.
IV. SPECIAL DUTY RULES — FIREFIGHTER'S RULE, TARASOFF, DRAM SHOP, GOOD SAMARITAN
California has several distinctive duty doctrines, some judge-made and some statutory.
A. Firefighter's Rule
CA Rule: Codified at Civil Code § 1714.9 and developed in case law, the firefighter's rule bars public-safety officers (firefighters, police) from recovering for injuries caused by the very risk that required their presence. National: many states recognize it; scope varies. California: recognized, with statutory exceptions (e.g., independent, intervening misconduct after the officer arrives).
B. Duty to Warn — Tarasoff
CA Rule: In Tarasoff v. Regents (1976), California created a psychotherapist's duty to use reasonable care to protect an identifiable third party when the patient makes a serious threat of violence. This is now codified at Civil Code § 43.92, which limits the duty to threats of serious physical violence against a reasonably identifiable victim and discharges it by warning the victim and law enforcement. National: many states adopted Tarasoff; some reject it. California: this is the origin jurisdiction, with a codified standard.
C. Dram Shop / Social Host Immunity
CA Rule: Civil Code § 1714(b)–(c) declares that the furnishing of alcohol is not the proximate cause of injuries; the drinker is. Thus commercial sellers and social hosts are generally immune from third-party liability. The exceptions: a licensed vendor or any person who serves an obviously intoxicated minor (§ 1714(d) and Bus. & Prof. Code § 25602.1) may be liable. National: many states impose dram-shop liability on commercial sellers. California: broad immunity, narrow minor exception — the opposite default.
D. Good Samaritan
CA Rule: Health and Safety Code § 1799.102 immunizes a person who in good faith and not for compensation renders emergency medical or nonmedical care at the scene of an emergency from civil liability except for gross negligence or willful misconduct. National: similar statutes everywhere, but scope varies. California: protects both medical and nonmedical emergency aid.
ESSAY WRITING TIP: Alcohol fact patterns are a California trap — state the § 1714 immunity first, then look hard for the obviously-intoxicated-minor exception. For threats by patients, cite Tarasoff/§ 43.92 and check that the victim was identifiable.
CA BAR TIP: Memorize that California's default on furnishing alcohol is immunity. Many candidates wrongly impose dram-shop liability as if California followed the majority. The exception is narrow (obviously intoxicated minor).
V. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS — Thing v. La Chusa
California originated and then tightened the bystander NIED test.
A. Bystander Recovery Factors
CA Rule: Beginning with Dillon v. Legg (1968) and refined in Thing v. La Chusa (1989), a bystander may recover for NIED only if the plaintiff (1) is closely related to the victim; (2) is present at the scene and contemporaneously aware that the event is causing injury to the victim; and (3) suffers serious emotional distress beyond that of a disinterested witness. National: jurisdictions split between the zone-of-danger rule and bystander rules; the Dillon/Thing factors are California's invention. California: the three rigid Thing factors govern.
B. Direct-Victim Theory
CA Rule: California also recognizes "direct victim" NIED where the duty arises from a preexisting relationship (e.g., Molien, Burgess v. Superior Court — physician owing duty to mother during childbirth), not requiring the bystander factors. National: varies. California: distinct direct-victim and bystander tracks.
ESSAY WRITING TIP: Identify whether the plaintiff is a bystander or a direct victim. For bystanders, march through the three Thing factors — close relationship, contemporaneous presence/awareness, and serious distress — and apply each to the facts.
CA BAR TIP: "Contemporaneous awareness" is the most-tested factor. A relative who learns of the injury later (e.g., arrives at the hospital afterward) generally cannot recover as a bystander under Thing.
VI. STRICT PRODUCTS LIABILITY — Greenman AND Barker
Modern strict products liability was born in California, and California uses a distinctive two-prong design-defect test.
A. Origin and Scope
CA Rule: Greenman v. Yuba Power Products (1963) established that a manufacturer is strictly liable in tort when an article it places on the market, knowing it will be used without inspection, proves to have a defect that causes injury. National: states later adopted Restatement (Second) § 402A and the Restatement (Third) of Torts. California: Greenman is the origin and California declines to follow the Third Restatement's reasonable-alternative-design requirement.
B. Design Defect — The Barker Two-Prong Test
CA Rule: Under Barker v. Lull Engineering (1978), a product is defective in design if either (1) it fails the consumer-expectation test — it did not perform as safely as an ordinary consumer would expect — or (2) under the risk-utility test, the benefits of the design do not outweigh the risk of danger inherent in it, on which the defendant bears the burden of proof. National: many states use only risk-utility and require a reasonable alternative design. California: two independent prongs, with the burden on the defendant for risk-utility.
EXAMPLE: A power tool injures a user. Even if the plaintiff cannot prove a safer alternative design, she may still prevail under Barker's consumer-expectation prong if the tool failed to perform as safely as an ordinary consumer would expect. The defendant then bears the burden to justify the design under risk-utility.
ESSAY WRITING TIP: For a defective-design essay, present both Barker prongs as alternatives. Note that the consumer-expectation test applies to products within ordinary experience; for complex technical designs, the risk-utility prong applies and the burden shifts to the defendant.
CA BAR TIP: Emphasize the burden-shift — once a design-defect plaintiff makes a prima facie showing of causation, the defendant must prove the benefits outweigh the risks. Importing the Third Restatement's plaintiff-side reasonable-alternative-design requirement is wrong in California.
VII. WRONGFUL DEATH, SURVIVAL, AND DAMAGES CAPS
California's death-related causes of action are statutory, and the MICRA cap limits medical-malpractice non-economic damages.
A. Wrongful Death and Survival (CCP §§ 377.60, 377.30)
CA Rule: Code of Civil Procedure § 377.60 creates a wrongful-death action for statutory heirs (spouse/domestic partner, children, and others dependent on the decedent), recovering the survivors' own losses (financial support, society, comfort) but not the decedent's pre-death pain and suffering. The separate survival action (§ 377.30) lets the estate recover the decedent's own losses up to death; historically it excluded the decedent's pre-death pain and suffering, but a temporary amendment (CCP § 377.34(b)) allowed such recovery for actions filed between Jan. 1, 2022 and Jan. 1, 2026. National: every state has wrongful-death/survival statutes; details vary. California: the heir list, the no-pain-and-suffering rule in wrongful death, and the recent survival-damages amendment are the testable points.
B. MICRA Cap on Non-Economic Damages
CA Rule: The Medical Injury Compensation Reform Act (Civil Code § 3333.2) historically capped non-economic damages in medical-malpractice actions at $250,000. Effective January 1, 2023, the cap was raised and now escalates annually — $350,000 for non-death cases and $500,000 for wrongful-death cases as of 2023, increasing each year toward $750,000/$1,000,000. National: caps vary widely; many states have none or have struck them down. California: a statutory, now-escalating cap that applies only to non-economic damages in professional-negligence claims against health-care providers.
ESSAY WRITING TIP: In a medical-malpractice essay, separate economic damages (uncapped) from non-economic damages (capped by MICRA). Note the cap was increased and now indexes upward annually; you need not recall the exact figure, but flag that it is no longer a flat $250,000.
CA BAR TIP: The MICRA cap applies only to professional negligence of health-care providers and only to non-economic damages. Do not apply it to ordinary negligence or to economic losses. Citing the post-2023 increase shows current knowledge.
VIII. CALIFORNIA DISTINCTIONS CHECKLIST
- Pure comparative negligence (Li v. Yellow Cab) — plaintiff recovers reduced damages regardless of fault percentage; no 50%/51% bar.
- Assumption of risk split — primary (no duty, complete bar, Knight) versus secondary (reduces damages as comparative fault).
- Proposition 51 (Civil Code § 1431.2) — joint and several liability for economic damages, several-only (proportional) for non-economic damages.
- Landowner duty — Rowland v. Christian general reasonable-care standard with multi-factor balancing; status is only one factor (narrow felony-trespasser carve-out, § 847).
- Firefighter's rule (§ 1714.9) bars public-safety officers' recovery for the risk that summoned them.
- Tarasoff duty to warn (§ 43.92) — protect identifiable victims of serious threats.
- Dram-shop/social-host immunity (§ 1714) — furnishing alcohol is not proximate cause; narrow exception for obviously intoxicated minors.
- NIED bystander recovery requires the three Thing v. La Chusa factors (close relationship, contemporaneous awareness, serious distress); separate direct-victim theory exists.
- Strict products liability originated in California (Greenman); design defect uses the two-prong Barker test (consumer-expectation OR risk-utility, with burden on defendant for risk-utility).
- Wrongful death (CCP § 377.60) excludes decedent's pain and suffering; survival action (§ 377.30) recovers estate's losses (with the 2022–2025 pain-and-suffering amendment).
- MICRA non-economic damages cap (§ 3333.2) applies only to health-care-provider professional negligence; raised and indexed annually since 2023.