Personal Injury Negligence

How do I prove Negligence in California? 

Under California Personal Injury Law, a victim of an injury or civil wrong may have the right to sue for the damages suffered by cause of another. The court provides a remedy through an action for compensation from the defendant. In order for the plaintiff to recover damages from a personal injury case, the plaintiff must prove that the harm was caused by the defendant’s negligence and recklessness. 

Under CACI No. 400, there are three things that the plaintiff must establish before suing the defendant:

  1. The defendant owed a duty of care
  2. The defendant breached such duty of care through negligence
  3. The defendant’s negligence was an important factor in causing the plaintiff’s harm.  

The Law of Negligence in California

Negligence is the failure to behave with the level of care that a reasonable person would have exercised under the same or similar circumstances. To be negligent is to do something that a reasonably careful person would not do in the same or similar situation, OR the failure to do something that a reasonably careful person would do in the same or similar situation. A “duty of care” to others is often created by the law. For example, drivers have a duty to obey traffic laws and to prevent creating risk for those on the road, including pedestrians. 

Civil Code 1714 (a) establishes:

  1. Everyone is responsible for the result of his or her willful acts.
  2. Everyone is responsible for the injury of another person under his or her management. Unless, the injury was brought upon him or herself. 

What are the Elements of Negligence?

Duty of Care

Duty of care is the legal obligation to another. There are two types of duty, general duty and special duty.  

  • General Duty – To conduct yourself as a reasonable person that is under similar circumstances would conduct themselves. In a negligence suit it must be determined if a reasonably careful person would have acted the same way the defendant acted under the same circumstances. 
  • Special Duty – A duty that is imposed by statute or case law. The defendant owed special duty to the plaintiff but not to the public at large. It makes a governmental entity liable for the plaintiff’s injury, because the entity owes a duty to the plaintiff and not the general public. 

Breach of Duty 

The defendant’s violation of a law or duty. 


The breach of duty that caused an injury, which must be one of two things: 

  • Bodily harm (bodily harm can also include emotional distress) 
  • Harm to property


In order to sue, the plaintiff must have suffered harm due to the negligence of the defendant. If there is no harm, then there is no lawsuit. 

Is There a Limit to Filing a Personal Injury Claim in California?

California Statute of Limitations:

  • Personal Injury claim: 2 years CIV. Proc. 335.1 
    • Negligence
    • Assault
    • Battery
    • Wrongful death of a loved one [web link]
  • Professional Malpractice: 1 year Civ. Proc 340.61

Do I need a lawyer to file a personal injury claim? 

If you are a victim of injury due to the negligence of another person or entity, do not delay and give us a call. We highly suggest you speak to a lawyer before filing a claim. Our experienced personal injury attorney can help you understand how California’s negligence laws apply to your case, and guide you through the process.

Contact our team online or call (510) 988-5566 to schedule a consultation.