California Bar Negligence Duty

Last updated: May 2, 2026

Negligence Duty questions are one of the highest-leverage areas to study for the California Bar. This guide breaks down the rule, the elements you need to recognize, the named traps that catch most students, and a memory aid that scales to test day. Read it once, then practice the same sub-topic adaptively in the app.

The rule

A defendant owes a duty of reasonable care to all foreseeable plaintiffs who could be harmed by the defendant's conduct. Under the majority Cardozo view (Palsgraf), duty runs only to those within the reasonably foreseeable zone of danger; the minority Andrews view holds that a duty is owed to anyone in fact harmed. The default standard is the care a reasonably prudent person would exercise under similar circumstances, but the standard shifts for special categories (children, professionals, common carriers, possessors of land). California has abolished the common-law trichotomy of land-entrant duties and instead applies a unitary reasonable-care standard to all entrants under Rowland v. Christian (1968), considering the seven Rowland factors.

Elements breakdown

General Duty of Reasonable Care

Every person owes foreseeable plaintiffs the care of a reasonably prudent person under similar circumstances.

  • Defendant engaged in affirmative conduct
  • Plaintiff was a foreseeable victim
  • Risk of harm was reasonably foreseeable
  • Standard: reasonably prudent person under like circumstances

Cardozo (Majority) Foreseeable-Plaintiff Rule

Duty extends only to plaintiffs within the reasonably foreseeable zone of danger created by defendant's conduct.

  • Defendant's conduct created a risk
  • Plaintiff was within zone of foreseeable danger
  • Harm to this plaintiff was reasonably anticipatable

Andrews (Minority) Universal-Duty Rule

Duty is owed to anyone in fact injured by defendant's negligent conduct; foreseeability is treated as proximate cause, not duty.

  • Defendant breached duty owed to someone
  • Plaintiff was in fact harmed
  • Foreseeability analyzed at proximate cause stage

Special Standards of Care

Certain categories of defendants are held to a modified standard rather than the ordinary reasonable-person standard.

  • Children: care of child of like age, intelligence, and experience
  • Professionals: knowledge and skill of average member of profession
  • Common carriers/innkeepers: utmost care (majority); reasonable care under Rowland (California)
  • Possessors of land: see land-entrant rules below
  • Statutory standard (negligence per se): violation of safety statute

Common examples:

  • A 10-year-old riding a bicycle is judged against other 10-year-olds, unless engaged in adult activity
  • A surgeon is judged against the standard of a reasonably competent surgeon

Land-Entrant Duties — Common Law Trichotomy (Majority)

A possessor of land owes different duties depending on the entrant's status: trespasser, licensee, or invitee.

  • Trespasser: refrain from willful/wanton harm; warn of known artificial death-traps if discovered
  • Licensee (social guest): warn of known concealed dangers; no duty to inspect
  • Invitee (business visitor): reasonable care including duty to inspect and make safe
  • Child trespassers: attractive nuisance — duty if elements of Restatement §339 met

Land-Entrant Duties — California Rowland Approach

California abolished rigid status categories and applies a single reasonable-care standard, weighing seven Rowland factors.

  • Foreseeability of harm to plaintiff
  • Degree of certainty plaintiff suffered injury
  • Closeness of connection between conduct and injury
  • Moral blame attached to defendant's conduct
  • Policy of preventing future harm
  • Burden on defendant and consequences to community
  • Availability and prevalence of insurance

Common examples:

  • Cal. Civ. Code §1714(a) codifies the general duty to exercise ordinary care
  • Status as trespasser is one factor, not a categorical bar (Cal. Civ. Code §847 carves out felon-trespasser exception)

Affirmative Duties to Act (Exceptions to No-Duty-to-Rescue)

There is generally no duty to rescue or aid another, but several relationships and circumstances create an affirmative duty.

  • Special relationship (parent-child, employer-employee, common carrier-passenger, innkeeper-guest, custodian-ward)
  • Defendant created the peril (even innocently)
  • Defendant voluntarily undertook a rescue and must proceed non-negligently
  • Statutory duty to act (e.g., hit-and-run statutes)
  • Contractual duty to act

Duty Based on Foreseeability of Third-Party Criminal Conduct

A landowner or business owes a duty to protect entrants from third-party criminal acts when those acts are reasonably foreseeable.

  • Special relationship or premises possession
  • Heightened foreseeability of the specific type of criminal conduct
  • California: balancing test from Ann M. v. Pacific Plaza (prior similar incidents required for high-burden measures like security guards)

Negligent Infliction of Emotional Distress — Bystander Duty

A duty is owed to bystanders who suffer emotional distress from witnessing injury to a close relative.

  • California (Thing v. La Chusa): plaintiff closely related to victim
  • Plaintiff present at scene and aware injury was occurring
  • Plaintiff suffered serious emotional distress beyond ordinary witness reaction
  • Majority zone-of-danger jurisdictions: plaintiff must be within zone of physical risk

Common patterns and traps

The Cardozo-Andrews Switch

Bar questions exploit the difference between Cardozo's foreseeable-plaintiff rule (majority) and Andrews's universal-duty rule (minority). The MBE almost always tests Cardozo; California essays may signal Andrews-style analysis when a remote plaintiff is harmed by an unforeseeable chain of events. Watch for fact patterns with attenuated victims standing far from the negligent act.

A choice that says 'Defendant is liable because his negligence in fact caused plaintiff's injury, regardless of foreseeability' — that's Andrews; on an MBE question, that answer is usually wrong.

The California-vs-Common-Law Land-Entrant Switch

Examiners present a slip-and-fall or premises-liability fact pattern and bait you into classifying the plaintiff as trespasser, licensee, or invitee. On a California essay, that classification is largely irrelevant — California uses Rowland's unitary standard. On the MBE, the trichotomy still controls. Spot the jurisdiction signal first.

A choice that says 'Plaintiff was a licensee, so defendant owed only a duty to warn of known concealed dangers' — correct on MBE, wrong framing on a California essay where Rowland factors govern.

The Pure Omission Trap

The fact pattern shows obvious carelessness — a defendant who saw a stranger drowning and did nothing. Candidates instinctively impose liability on moral grounds, but the baseline rule is no duty to rescue. The correct analysis requires identifying a special relationship, peril-creation, or voluntary undertaking before duty attaches.

A choice saying 'Defendant is liable because a reasonable person would have intervened to save plaintiff' — correct on morality, wrong on law absent a duty trigger.

The Voluntary-Undertaking Bootstrap

Once a defendant begins to render aid, she must proceed with reasonable care. Examiners use this to convert a no-duty case into a duty case mid-vignette. Look for a defendant who starts a rescue and then abandons it, leaving the victim worse off than before.

A choice that absolves the defendant on the ground 'there was no duty to rescue' even though the defendant began rescuing — wrong, because undertaking creates duty.

The Foreseeable-Criminal-Act Mimic

The fact pattern features a third party who attacks the plaintiff on the defendant's property. Candidates mistakenly conclude the criminal act is a superseding cause that breaks duty. The correct analysis turns on whether the criminal act was reasonably foreseeable — under California's Ann M. framework, often requiring prior similar incidents for high-burden security measures.

A choice saying 'The landlord is not liable because the assault was a criminal act of a third party' — wrong if prior similar incidents made the attack foreseeable.

How it works

Duty is the gatekeeper element of any negligence claim — if you cannot articulate a duty owed to this plaintiff, the claim collapses before breach, causation, or damages matter. Start every duty analysis by asking two questions: (1) was this plaintiff foreseeable, and (2) what standard of care applies? On the MBE, default to the Cardozo majority view: the defendant owed a duty only to those in the reasonably foreseeable zone of danger. Imagine a delivery driver who carelessly stacks boxes on a loading dock; a customer walking past is foreseeable, but a passerby three blocks away injured by an unrelated chain reaction is likely not. On the California essay, the analysis pivots: for land-entrant cases, abandon the trichotomy and march through the seven Rowland factors. For affirmative-duty questions, identify whether a special relationship or peril-creation triggers the exception to the no-duty-to-rescue baseline.

Worked examples

Worked Example 1

How should the court rule on Reyes's motion?

  • A Grant the motion, because Liu was not within the foreseeable zone of danger created by Reyes's negligent driving.
  • B Grant the motion, because the criminal act of breaking the hydrant was a superseding cause.
  • C Deny the motion, because under the Andrews view, Reyes owed a duty to anyone harmed by his conduct.
  • D Deny the motion, because a reasonable jury could find that injury to a pedestrian downstream from a broken hydrant was foreseeable. ✓ Correct

Why D is correct: Under the Cardozo majority rule, duty extends to all plaintiffs within the foreseeable zone of danger. A reasonable jury could find that breaking a fire hydrant near a sidewalk creates a foreseeable risk that pedestrians on that sidewalk — including those a short distance away — could slip on the resulting water. Foreseeability is generally a jury question, so summary judgment is inappropriate.

Why each wrong choice fails:

  • A: This applies Cardozo correctly in form but wrongly concludes Liu was outside the zone as a matter of law. A pedestrian half a block from a broken hydrant on the same sidewalk is plausibly within the zone, and reasonable jurors could so find — making summary judgment improper. (The Cardozo-Andrews Switch)
  • B: There was no criminal act here — Reyes's conduct was negligent, not criminal. The choice misapplies the superseding-cause doctrine and conflates negligence with intentional or criminal third-party conduct. (The Foreseeable-Criminal-Act Mimic)
  • C: This correctly reaches the result of denying summary judgment but for the wrong reason. The majority rule is Cardozo, not Andrews; the question specifies a majority-rule jurisdiction, so the universal-duty rationale is doctrinally incorrect. (The Cardozo-Andrews Switch)
Worked Example 2

How should the court rule on Liu's motion?

  • A Grant the motion, because a social guest is a licensee and Liu's failure to warn was not willful or wanton.
  • B Grant the motion, because Patel assumed the risk of using an unfamiliar deck.
  • C Deny the motion, because California abolished the trichotomy and Liu's duty is determined by the Rowland factors. ✓ Correct
  • D Deny the motion, because Liu owed Patel the heightened duty owed to invitees, including a duty to inspect.

Why C is correct: In California, Rowland v. Christian abolished the rigid common-law categories of trespasser, licensee, and invitee. A landowner owes all entrants a single standard of reasonable care, evaluated under the seven Rowland factors. Liu's status-based defense fails as a matter of California law, and a jury must apply the Rowland balancing.

Why each wrong choice fails:

  • A: This applies the common-law trichotomy that California rejected in Rowland. The licensee/willful-or-wanton framing is correct in majority MBE jurisdictions but is the wrong rule for a California negligence case. (The California-vs-Common-Law Land-Entrant Switch)
  • B: Assumption of the risk requires actual knowledge of the specific danger. Patel had no warning that the step was rotted, so he could not knowingly assume the risk. The doctrine is misapplied.
  • D: This reaches the right result (denial) but wrongly imports the invitee category. California does not classify Patel as an invitee; it discards categories entirely and uses Rowland's unitary reasonable-care standard. (The California-vs-Common-Law Land-Entrant Switch)
Worked Example 3

Will Patel prevail on his negligence claim against Reyes?

  • A Yes, because a reasonable person would have called for help, and Reyes's failure to do so was unreasonable.
  • B Yes, because Reyes's awareness of Patel's peril created a duty to render aid.
  • C No, because Reyes owed Patel no duty to act absent a special relationship or other duty-triggering circumstance. ✓ Correct
  • D No, because Reyes did not cause Patel's original injury.

Why C is correct: Under the majority rule, there is no general duty to rescue or aid a stranger, even when aid would be easy and the failure to act is morally indefensible. Duty to act arises only from a special relationship, creation of the peril, voluntary undertaking, statute, or contract. None of those triggers is present here, so Reyes owed Patel no duty.

Why each wrong choice fails:

  • A: This conflates the breach analysis (was the conduct unreasonable?) with the threshold duty question. Even if a reasonable person would have called for help, that moral judgment does not create a legal duty in the absence of a duty-triggering relationship or circumstance. (The Pure Omission Trap)
  • B: Mere awareness of another's peril does not, by itself, create a duty to act under the majority rule. Knowledge plus a special relationship or peril-creation is required; observation alone is insufficient. (The Pure Omission Trap)
  • D: This reaches the correct result but for an incomplete reason. The fact that Reyes did not cause the original injury is one reason there is no duty, but the precise legal rule is the absence of any duty-triggering circumstance — special relationship, peril-creation, undertaking, statute, or contract.

Memory aid

For affirmative duties, remember 'SCRAP': Special relationship, Created the peril, Reliance on undertaking, Assumption of duty by contract, Public statute. For California land cases, remember the Rowland 7: Foreseeability, Certainty, Closeness, Moral blame, Policy, Burden, Insurance.

Key distinction

Duty is decided by the judge as a matter of law; breach is decided by the jury as a matter of fact. Bar examiners exploit this: a fact pattern showing carelessness still fails if no duty was owed to this plaintiff. Always ask 'duty to whom?' before 'did the defendant act unreasonably?'

Summary

Duty asks whether the defendant owed this plaintiff an obligation of reasonable care — analyzed under Cardozo's foreseeable-zone test on the MBE and California's Rowland factors for land entrants on the California essay.

Practice negligence duty adaptively

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Frequently asked questions

What is negligence duty on the California Bar?

A defendant owes a duty of reasonable care to all foreseeable plaintiffs who could be harmed by the defendant's conduct. Under the majority Cardozo view (Palsgraf), duty runs only to those within the reasonably foreseeable zone of danger; the minority Andrews view holds that a duty is owed to anyone in fact harmed. The default standard is the care a reasonably prudent person would exercise under similar circumstances, but the standard shifts for special categories (children, professionals, common carriers, possessors of land). California has abolished the common-law trichotomy of land-entrant duties and instead applies a unitary reasonable-care standard to all entrants under Rowland v. Christian (1968), considering the seven Rowland factors.

How do I practice negligence duty questions?

The fastest way to improve on negligence duty is targeted, adaptive practice — working questions that focus on your specific weak spots within this sub-topic, getting immediate feedback, and revisiting items you missed on a spaced-repetition schedule. Neureto's adaptive engine does this automatically across the California Bar; start a free 7-day trial to see your sub-topic mastery climb in real time.

What's the most important distinction to remember for negligence duty?

Duty is decided by the judge as a matter of law; breach is decided by the jury as a matter of fact. Bar examiners exploit this: a fact pattern showing carelessness still fails if no duty was owed to this plaintiff. Always ask 'duty to whom?' before 'did the defendant act unreasonably?'

Is there a memory aid for negligence duty questions?

For affirmative duties, remember 'SCRAP': Special relationship, Created the peril, Reliance on undertaking, Assumption of duty by contract, Public statute. For California land cases, remember the Rowland 7: Foreseeability, Certainty, Closeness, Moral blame, Policy, Burden, Insurance.

What's a common trap on negligence duty questions?

Assuming a duty exists in pure-omission cases without identifying a relationship or peril-creation

What's a common trap on negligence duty questions?

Applying the common-law land-entrant trichotomy on a California essay instead of Rowland

Related California Bar sub-topics

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