California
Appeals
Standard of Review
Duty
Existence of a Duty

Standard of Review-The existence of a duty of care is a question of law to be determined by the court alone. Cohen v. NuVasive

 2.         Duty of Care in “Direct Victim” Negligence Cases

            The elements of a negligence cause of action are (1) the existence of a duty to exercise due care, (2) breach of that duty, (3) causation, and (4) damages.  (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 500.)  The existence of a duty of care is a question of law to be determined by the court alone.  (Id. at p. 501; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, 678.)  “ ‘[D]uty’ is not an immutable fact of nature ‘ “but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” ’  [Citation.]”  (Ballard v. Uribe (1986) 41 Cal.3d 564, 572, fn. 6.)

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