CACI 1221 Negligence—Basic Standard of Care

New September 2003; Revised December 2012

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Give this instruction with CACI No. 1220, Negligence—Essential Factual Elements. This instruction gives guidance to the jury as to how to evaluate element 2 (defendant was negligent) of CACI 1220. For an instruction on negligent failure to warn, see CACI No. 1222, Negligence—Manufacturer or Supplier—Duty to Warn—Essential Factual Elements.

The duty to inspect or test is included in the “knew or should have known” standard of this instruction: “If the manufacturer designs the product safely, manufactures the product safely, and provides an adequate warning of dangers inherent in the use of the product, then a failure to test the product cannot, standing alone, cause any injury. The duty to test is a subpart of the other three duties because a breach of the duty to test cannot by itself cause any injury.” (Valentine v. Baxter Healthcare Corp. (1999) 68 Cal.App.4th 1467, 1486 [81 Cal.Rptr.2d 252], quoting Kociemba v. G.D. Searle & Co. (D. Minn. 1989) 707 F.Supp. 1517, 1527.)

•“A manufacturer/seller of a product is under a duty to exercise reasonable care in its design so that it can be safely used as intended by its buyer/consumer.” (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141 [229 Cal.Rptr. 605].) This duty “ ‘extends to all persons within the range of potential danger.’ ” (Ibid., internal citations omitted.)

•“In determining what precautions, if any, were required under the circumstances, the likelihood of harm, and the gravity of the harm if it happens, must be balanced against the burden of the precaution which would be effective to avoid the harm.” (Putensen v. Clay Adams, Inc. (1970) 12 Cal.App.3d 1062, 1077–1078 [91 Cal.Rptr. 319], internal citations omitted.)

•[E]xpert testimony about the safety of a product, in light of industry standards, can also take into account other applicable and relevant circumstances. As framed by CACI No. 1221, the negligence inquiry asks if the manufacturer failed to use the amount of care in designing the product that a reasonably careful designer or manufacturer would have used in similar circumstances.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 430 [136 Cal.Rptr.3d 739], internal citations omitted.)

•“[F]reedom from negligence does not inure to the manufacturer because it purchased parts from another which were defective.” (Sheward v. Virtue (1942) 20 Cal.2d 410, 412 [126 P.2d 345].)

•“The duty of a manufacturer with respect to the design of products placed on the market is defined in the Restatement Second of Torts, section 398: ‘A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel or to be endangered by its probable use for physical harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.’ Thus, the manufacturer must use reasonable care ‘to so design his product as to make it not accident-proof, but safe for the use for which it was [sic] intended.’ What is ‘reasonable care,’ of course, varies with the facts of each case, but it involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.” (Pike v. Frank G. Hough Co. (1970) 2 Cal.3d 465, 470 [85 Cal.Rptr. 629, 467 P.2d 229], internal citation omitted.)

•“ ‘[T]he test of negligent design “involves a balancing of the likelihood of harm to be expected from a machine with a given design and the gravity of harm if it happens against the burden of the precaution which would be effective to avoid the harm.” [Citation.] … “A manufacturer or other seller can be negligent in marketing a product because of the way it was designed. In short, even if a seller had done all that he could reasonably have done to warn about a risk or hazard related to the way a product was designed, it could be that a reasonable person would conclude that the magnitude of the reasonably foreseeable harm as designed outweighed the utility of the product as so designed.” [Citation.] Thus, “most of the evidentiary matters” relevant to applying the risk/benefit test in strict liability cases “are similar to the issues typically presented in a negligent design case.” ’ ” (Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283, 1305 [144 Cal.Rptr.3d 326].)

•“A danger is unreasonable when it is foreseeable, and the manufacturer’s ability, actual, constructive, or potential, to forestall unreasonable danger is the measure of its duty in the design of its product.” (Balido v. Improved Machinery, Inc. (1972) 29 Cal.App.3d 633, 640 [105 Cal.Rptr. 890], disapproved on other grounds in Regents of University of California v. Hartford Accident & Indemnity Co. (1978) 21 Cal.3d 624, 641–642 [147 Cal.Rptr. 486, 581 P.2d 197].)

•“With respect to tests or inspections, it is well settled that where an article is such that it is reasonably certain, if negligently manufactured or designed, to place life and limb in peril, the manufacturer is chargeable with negligence if the defective condition could be disclosed by reasonable inspection and tests, and such inspection and tests are omitted.” (Putensen, supra, 12 Cal.App.3d at p. 1078, internal citations omitted.)

•“[W]here an article is either inherently dangerous or reasonably certain to place life and limb in peril when negligently made, a manufacturer owes a duty of care to those who are the ultimate users. This duty requires reasonable care to be exercised in assembling component parts and inspecting and testing them before the product leaves the plant.” (Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724, 736 [7 Cal.Rptr. 879], internal citations omitted.)