Negligence

Mark Anchor Albert and Associates has an established track record of success in negligence cases.

Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if he or she does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.

Published appellate decisions often note that the formulation of the standard of care is a question of law for the court. Once the court has formulated the standard, its application to the facts of the case is a task for the trier of fact if reasonable minds might differ as to whether a party’s conduct has conformed to the standard. Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.

The Restatement Second of Torts, section 282, defines negligence as “conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm.” Restatement Second of Torts, section 283, provides: “Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” Similarly, the California Supreme Court has stated: “Because application of [due care] is inherently situational, the amount of care deemed reasonable in any particular case will vary, while at the same time the standard of conduct itself remains constant, i.e., due care commensurate with the risk posed by the conduct taking into consideration all relevant circumstances.” Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997; see also Tucker v. Lombardo (1956) 47 Cal.2d 457, 464.

The proper conduct of a reasonable person in a particular situation may become settled by judicial decision or may be established by statute or administrative regulation. Ramirez, supra, 6 Cal.4th at p. 547. Negligence can be found in the doing of an act, as well as in the failure to do an act. See Rest.2d Torts, § 284.

It is possible, however, to obtain dismissal of negligence claims seeking recovery for economic losses at the summary judgment and post-trial stages of litigation in lawsuits against banks, financial institutions, and investment advisors. The economic loss rule, derived from products liability law, prohibits the recovery in tort of purely economic losses arising from contractual breaches. This dismissal strategy, based on application of the economic loss rule, typically will not work where a defendant serves in a fiduciary capacity, takes possession of physical property, or is providing “professional services” under California or New York law. This strategy may work, on the other hand, where the defendant is only providing financial planning, making securities sales, providing normal accounting advice, and even in some investment banking contexts.

Financial fraud litigators at Mark Anchor Albert and Associates are able to effectively prosecute and defend against negligence claims involving virtually every type of complex financial transaction, whether involving limited partnership interests, limited liability company membership units, shares of stock, bonds, investment contracts, promissory notes, or other investment vehicles and schemes.