DEFENDANT OWED A LEGAL DUTY TO PLAINTIFF AS IT WAS FORSEEABLE

THAT SHE WOULD INJURED AS A RESULT OF HIS ACTIONS.

In determining whether the defendant owed a duty of due care to the plaintiff in a

given case, the courts have applied the balancing test derived from Rowland v. Christian

(1968) 69 Cal.2d 108, 113, 70 Cal.Rptr. 97, 443 P.2d 561, ". . . [T]he major

[considerations] are the foreseeability of harm to the plaintiff, the degree of certainty the

plaintiff suffered injury, the closeness of the connection between the defendant's conduct

and the injury suffered, the moral blame attached to the defendant's conduct, the policy of

preventing future harm, the extent of the burden to the defendant and consequences to the

community of imposing a duty to exercise care with resulting liability for breach, and the

availability, cost, and prevalence of insurance for the risk involved."

Neither intoxicated drivers nor swift traffic on major thoroughfare were

unforeseeable as matter of law in plaintiff's action against telephone company for injuries

sustained when plaintiff was using company's telephone booth and was struck by

intoxicated driver; foreseeability of risk that phone booth user might be injured by car

veering off street and crashing into phone booth having defective door was question of

fact for jury. Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal. 3d 49, 58-60, 192 Cal. Rptr.

857, 665 P.2d 947.

Jury able reasonably to find that defendant, who had contracted with decedent's

employer to maintain its trucks, was liable for decedent's death, because defendant's

negligent maintenance of trucks had placed decedent in position in which he was exposed

to reasonably foreseeable risk of injury from intoxicated or otherwise out-of-control

drivers; truck in which decedent was driving broke down on highway due to defective

electrical system, and decedent was hit by speeding car as he stood on shoulder of

highway in dark. Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, 1840,

20 Cal. Rptr. 2d 913. Foreseeability of risk is usually question of fact; and is question of

law only if under undisputed facts there is no room for reasonable difference of opinion.

Twohig v. Briner (1985) 168 Cal. App. 3d 1102, 1106, 214 Cal. Rptr. 729.

Persons injured while undertaking necessary rescue are entitled, absent rash or

reckless conduct on their part, to recover from person whose negligence created peril

necessitating rescue. Solgaard v. Guy F. Atkinson Co. (1971) 6 Cal. 3d 361, 3 68, 99 Cal.

Rptr. 29, 491 P.2d 821

DEFENDANTS LIABILTY IS NOT SUPERSEDED BY INTERVENING ACT OF

ACCIDENT

Generally, if risk of injury by intervening act might have been reasonably

foreseen, defendant liable; but independent, intervening act that is highly unusual or

extraordinary, not reasonably likely to happen, and hence not foreseeable, is superseding

cause precluding liability. Bloomberg v. Interinsurance Exchange (1984) 162 Cal. App.

3d 571, 576, 207 Cal. Rptr. 853.

Independent intervening act is superseding cause relieving actor of liability for

negligence only if intervening act is highly unusual or extraordinary and hence not

reasonably foreseeable. Cline v. Watkins (1977) 66 Cal. App. 3d 174, 178, 135 Cal. Rptr.

838 (citing with approval Rest 2d Torts 435 and 447. Reasonable foreseeability of

independent intervening cause is question of fact unless under undisputed facts there is

no room for reasonable difference of opinion. Cline v. Watkins (1977) 66 Cal. App. 3d
174, 178, 135 Cal. Rptr. 838 ; Schrimscher v. Bryson (1976) 58 Cal. App. 3d 660, 664,

130 Cal. Rptr. 125

Defendant liable for injury proximately or substantially caused by his or her

negligent conduct, even if third person's conduct directly precipitates injury; fact that

third person's act was innocent, negligent, intentionally tortious, or criminal does not

insulate defendant from liability. Bullis v. Security Pac. Nat. Bank (1978) 21 Cal. 3d 801,

812, 148 Cal. Rptr. 22, 582 P.2d 109

Fact that intervening act of third person is negligent is not superseding cause if

reasonable person is not aware of situation would not regard it as highly extraordinary

that third person so acted, or if act is normal response to situation created by defendant's

conduct, and manner in which intervening act is done is not extraordinarily negligent.

Stewart v. Cox (1961) 55 Cal. 2d 857, 864, 13 Cal. Rptr. 521, 362 P.2d 345 (citing with

approval Rest. Torts 447)

Owner of bulldozer, who left it unattended and unlocked, liable to plaintiff injured

when bulldozer was started by three juveniles; fact that intervening act was intentionally

tortious and criminal did not preclude owner's liability, because this precise foreseeable

risk made owner's leaving bulldozer unlocked and unattended negligent. Richardson v.

Ham (1955) 44 Cal. 2d 772, 776-777, 285 P.2d 269

Tortfeasors allegedly liable for original automobile accident that necessitated

transportation of victim to hospital could be held liable for further injury or death

suffered by victim on way to hospital; error to sustain demurrer for original tortfeasors
when victim was killed in crash of helicopter transporting victim to hospital. Anaya v.

Superior Court (2000) 78 Cal. App. 4th 971, 976, 93 Cal. Rptr. 2d 228.

Speeding car that killed truck driver who was standing on highway shoulder in

darkness because his truck had broken down was not intervening or superseding cause

cutting off liability of defendants that had negligently maintained the truck, unless jury

determined that defendants could not have foreseen possibility of this sort of accident.

Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal. App. 4th 1830, 1840, 1848, 20 Cal.

Rptr. 2d 913.