Calvillo-Silva v. Home Grocery12/17/1998
a statutory duty, without more, is not guilty. (Mercer-Fraser Co. v. Industrial Acc. Com., supra, 40 Cal.2d at p. 117; Meek v. Fowler, supra, 3 Cal.2d at p. 425; Colich & Sons v. Pacific Bell, supra, 198 Cal.App.3d at p. 1242.) While the word "willful" implies an intent, the intention must relate to the misconduct and not merely to the fact that some act was intentionally done. (Cope v. Davison, supra, 30 Cal.2d at p. 201, relying upon Meek v. Fowler, supra, 3 Cal.2d at p. 425; accord, Mercer-Fraser Co. v. Industrial Acc. Com., supra, 40 Cal.2d at p. 118.) Thus, even though some cases of negligence may involve intentional actions, the mere intent to do an act which constitutes negligence is not enough to establish willful misconduct. (Cope v. Davison, supra, 30 Cal.2d at p. 201, relying upon Meek v. Fowler, supra, 3 Cal.2d at pp. 425-426; accord, Mercer-Fraser Co. v. Industrial Acc. Com., supra, 40 Cal.2d at p. 118.)
Second, willfulness generally is marked by three characteristics: (1) actual or constructive knowledge of the peril to be apprehended; (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger; and (3) conscious failure to act to avoid the peril. (Bacon v. Southern Cal. Edison Co. (1997) 53 Cal.App.4th 854, 859 [recreational use immunity statute]; Colich & Sons v. Pacific Bell, supra, 198 Cal.App.3d at p. 1242; New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at pp. 689-690; Morgan v. Southern Pacific Trans. Co., supra, 37 Cal.App.3d at p. 1012.) As the foregoing suggests, willful misconduct does not invariably entail a subjective intent to injure. It is sufficient that a reasonable person under the same or similar circumstances would be aware of the highly dangerous character of his or her conduct. (Pelletti v. Membrila (1965) 234 Cal.App.2d 606, 611 [automobile guest statute], relying upon Rest. Torts § 500(c); New v. Consolidated Rock Products Co., supra, 171 Cal.App.3d at p. 690; accord, Cope v. Davison, supra, 30 Cal.2d at p. 199; Palazzi v. Air Cargo Terminals, Inc., supra, 244 Cal.App.2d at pp. 195-196.)
Third, acts that are intended or likely to cause serious injury are not categorically wrongful in character and do not inevitably result in liability. For instance, a person is privileged to use " ny necessary force" to protect or defend oneself or one's property from "wrongful injury." (§ 50; see also Pen. Code, § 197. ) The right to use force against another has long been limited by the condition that the force be no more than "`that which reasonably appears necessary, in view of all the circumstances of the case, to prevent the impending injury.'" (Vaughn v. Jonas (1948) 31 Cal.2d 586, 600; Boyer v. Waples (1962) 206 Cal.App.2d 725, 727; Fraguglia v. Sala (1936) 17 Cal.App.2d 738, 745.) When the amount of force used is justifiable under the circumstances, it is not willful and the actor may escape liability for intentionally injurious conduct that is otherwise actionable. (See Haeussler v. De Loretto (1952) 109 Cal.App.2d 363, 364-365.) But if force is applied in excess of that which is justified, the actor remains subject to liability for the damages resulting from the excessive use of force. (See Townsend v. Briggs (1893) 99 Cal. 481, 483; Fraguglia v. Sala, supra, 17 Cal.App.2d at p. 745; see also Stowell v. Evans (1931) 211 Cal. 565.) This is consonant with the general principle that an actor is subject to liability for an intentionally injurious act only if his or her conduct "is generally culpable and not justifiable under the circumstances." (Rest.2d Torts, § 870; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 17, pp. 77-79.) When an alleged act of self- defense or defense of property is at
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