California Civil Jury Instructions (CACI) (2017)

600. Standard of Care

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600.Standard of Care
[A/An] [insert type of professional] is negligent if [he/she] fails to use the
skill and care that a reasonably careful [insert type of professional] would
have used in similar circumstances. This level of skill, knowledge, and
care is sometimes referred to as “the standard of care.”
[You must determine the level of skill and care that a reasonably careful
[insert type of professional] would use in similar circumstances based
only on the testimony of the expert witnesses[, including [name of
defendant],] who have testified in this case.]
New September 2003; Revised October 2004, December 2007
Directions for Use
Use this instruction for all professional negligence cases other than professional
medical negligence, for which CACI No. 501, Standard of Care for Health Care
Professionals, should be used. See CACI No. 400, Negligence—Essential Factual
Elements, for an instruction on the plaintiff’s burden of proof. The word “legal” or
“professional” should be added before the word “negligence” in the first paragraph
of CACI No. 400. (See Sources and Authority following CACI No. 500, Medical
Negligence—Essential Factual Elements.)
Read the second paragraph if the standard of care must be established by expert
See CACI Nos. 219–221 on evaluating the credibility of expert witnesses.
If the defendant is a specialist in his or her field, this instruction should be
modified to reflect that the defendant is held to the standard of care of a specialist.
(Wright v. Williams (1975) 47 Cal.App.3d 802, 810 [121 Cal.Rptr. 194].) The
standard of care for claims related to a specialist’s expertise is determined by
expert testimony. (Id. at pp. 810–811.)
Whether an attorney-client relationship exists is a question of law. (Responsible
Citizens v. Superior Court (1993) 16 Cal.App.4th 1717, 1733 [20 Cal.Rptr.2d 756].)
If the evidence bearing upon this decision is in conflict, preliminary factual
determinations are necessary. (Ibid.) Special instructions may need to be crafted for
that purpose.
Sources and Authority
• “The elements of a cause of action in tort for professional negligence are (1)
the duty of the professional to use such skill, prudence, and diligence as other
members of his profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligent conduct and the
resulting injury; and (4) actual loss or damage resulting from the professional’s
negligence.” (Budd v. Nixen (1971) 6 Cal.3d 195, 200 [98 Cal.Rptr. 849, 491
P.2d 433].)
• “ ‘In addressing breach of duty, “the crucial inquiry is whether [the attorney’s]
advice was so legally deficient when it was given that he [or she] may be found
to have failed to use ‘such skill, prudence, and diligence as lawyers of ordinary
skill and capacity commonly possess and exercise in the performance of the
tasks which they undertake.’ . . .” ’ ” (Blanks v. Seyfarth Shaw LLP (2009) 171
Cal.App.4th 336, 357 [89 Cal.Rptr.3d 710].)
• “[I]f the allegedly negligent conduct does not cause damage, it generates no
cause of action in tort.” (Moua v. Pittullo, Howington, Barker, Abernathy, LLP
(2014) 228 Cal.App.4th 107, 112–113 [174 Cal.Rptr.3d 662].)
• “[T]he issue of negligence in a legal malpractice case is ordinarily an issue of
fact.” (Blanks, supra, 171 Cal.App.4th at p. 376.)
• “It is well settled that an attorney is liable for malpractice when his negligent
investigation, advice, or conduct of the client’s affairs results in loss of the
client’s meritorious claim.” (Gutierrez v. Mofid (1985) 39 Cal.3d 892, 900 [218
Cal.Rptr. 313, 705 P.2d 886].)
• “[A] lawyer holding himself out to the public and the profession as specializing
in an area of the law must exercise the skill, prudence, and diligence exercised
by other specialists of ordinary skill and capacity specializing in the same
field.” (Wright, supra, 47 Cal.App.3d at p. 810.)
• “To establish a [professional] malpractice claim, a plaintiff is required to present
expert testimony establishing the appropriate standard of care in the relevant
community. ‘Standard of care “ ‘is a matter peculiarly within the knowledge of
experts; it presents the basic issue in a malpractice action and can only be
proved by their testimony [citations] . . . .’ ” [Citation.]’ ” (Quigley v.
McClellan (2013) 214 Cal.App.4th 1276, 1283 [154 Cal.Rptr.3d 719], internal
citations omitted.)
• “ ‘. . . “[W]here the failure of attorney performance is so clear that a trier of
fact may find professional negligence unassisted by expert testimony, then
expert testimony is not required.” In other words, if the attorney’s negligence is
readily apparent from the facts of the case, then the testimony of an expert may
not be necessary.’ ” (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1093 [41
Cal.Rptr.2d 768], internal citations omitted.)
• “Where . . . the malpractice action is brought against an attorney holding
himself out as a legal specialist and the claim against him is related to his
expertise as such, then only a person knowledgeable in the specialty can define
the applicable duty of care and opine whether it was met.” (Wright, supra, 47
Cal.App.3d at pp. 810–811, footnote and internal citations omitted.)
• “The standard is that of members of the profession ‘in the same or a similar
locality under similar circumstances’. . . . The duty encompasses both a
knowledge of law and an obligation of diligent research and informed
judgment.” (Wright, supra, 47 Cal.App.3d at p. 802, internal citations omitted;
but see Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th
463, 470–471 [71 Cal.Rptr.3d 707] [geographical location may be a factor to be
considered, but, by itself, does not provide a practical basis for measuring
similar circumstances].)
• Failing to Act Competently. Rules of Professional Conduct, rule 3-110.
Secondary Sources
1 Witkin, California Procedure (5th ed. 2008) Attorneys, §§ 290–293
4Witkin, California Procedure (5th ed. 2008) Pleadings, § 593
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 990, 991, 994–997
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 1-A,
Sources Of Regulation Of Practice Of Law In California-Overview, ¶ 1:39 (The
Rutter Group)
Vapnek, et al., California Practice Guide: Professional Responsibility, Ch. 6-D,
Professional Liability, ¶¶ 6:230–6:234 (The Rutter Group)
1 Levy et al., California Torts, Ch. 1, Negligence: Duty and Breach, § 1.31
(Matthew Bender)
3 Levy et al., California Torts, Ch. 30, General Principles of Liability of
Professionals, §§ 30.12, 30.13, Ch. 32, Liability of Attorneys, § 32.13 (Matthew
7 California Forms of Pleading and Practice, Ch. 76, Attorney Professional
Liability, §§ 76.50, 76.51 (Matthew Bender)
33 California Forms of Pleading and Practice, Ch. 380, Negligence, § 380.50
(Matthew Bender)
2A California Points and Authorities, Ch. 24A, Attorneys at Law: Malpractice,
§ 24A.20 et seq. (Matthew Bender)