ride share, injury claims, CaliforniaUber Technologies, Inc. has fast become the largest of a new breed of transportation companies commonly known as “ride-sharing” nationwide and especially in large urban areas like Los Angeles and San Francisco.  Unfortunately, it appears that the growth of the company is outpacing the planning for safety and consumer protection.  One high profile incident in San Francisco involving an Uber driver who struck and killed a 6 year old girl has now spawned both criminal charges against the driver and a wrongful death lawsuit against Uber. (See discussion here: Insurance Journal).

How do ride sharing companies operate in California?

Ride sharing is a good concept in theory.  People “volunteer” to use their own vehicles to pick up and drop off passengers based through an app that is installed on a smart phone.  It tracks where drivers are in relationship to potential passengers and allows people to request a “ride” at a moments notice as an alternative to calling a taxi.  As I have discussed in other posts (see here), the California Public Utilities Commission (“PUC”) was one of the first public agencies to attempt to regulate these services and provide some basic requirements for operation.  They enacted provisions which require Uber, Lyft, SideCar and others to conduct background checks on drivers, to train drivers on safety and to provide insurance above and beyond the limits of the auto accident policy for the vehicle or the driver.

Potential legal issues that arise out of a ride share company accident claim in CA:

While I think, again, that this is a great concept, the legal issues that potentially come into play here are starting to show some “flies in the ointment” as follows:

  • When is an Uber Driver considered “On the Clock”: For legal purposes, an employer or “principal” is usually liable for the acts of its “agent” when that “employee” or “agent” is acting in the “course and scope” of their agency or employment relationship.  When it comes to ride share drivers, Uber and other companies call these drivers “partners” or “affiliates” and, at least in the San Francisco case, are trying to disavow liability unless the driver is actually going to an active call request at the time of the accident.  The plaintiffs in the case (parents of the child who was struck and killed) are arguing that if the app is on and the driver is ready to receive a request, it is the same as when a taxi has its light on and the driver is already in the “course and scope” at that time.
  • Insurance Issues: Individual drivers usually have insurance for their vehicle but, many carriers are trying to exclude coverage for people using their cars as ride share vehicles.  If the individual insurance policy refuses to pay and Uber, Lyft, Sidecar or one of the other ride share companies claim they are not liable because the driver wasn’t actively trying to pick someone up at the time, this would leave the injured party or wrongful death victim’s family without a “pocket to collect.”  In the case of the San Francisco wrongful death, this is precisely what appears to be happening.  The driver was clearly not only negligent but, engaged in vehicular manslaughter according to the District Attorney’s office.  In my mind, both he and his “employer” (Uber) should be held liable in a civil court for damages related to this incident.

Importance of seeking out legal advice when injured as a passenger in a ride share vehicle like Uber or Lyft:

The case clearly shows that there are tricky legal issues involved in the ride-share scenario.  It is important for persons suffering bodily injury or the family of someone killed in a traffic collision involving a ride share driver to know that these issues are complicated and subject to current litigation to ferret out what the rule are and what they should be.  Consulting with a lawyer familiar with these types of claims is crucial.  Glotzer & Sweat, LLP has free legal consultations on any ride-share incident in California including Los Angeles and can be reached anywhere in California at our toll free #866-229-0101.

Additional Resources:

Ride Share Injury Claims in California

personal injury, jury verdict, Los AngelesIn what will be a continuing series highlighting personal injury jury verdicts in Los Angeles, I wanted to discuss two cases were jury verdicts rendered in L.A. Superior Court were reported in November as follows:

Verdict of Almost $70,000 After State Farm Insurance Offers Only $30,000 for Settlement

Villalobos v. Aranda, Los Angeles Superior Court Case No. MC023611

Facts of the Case: Plaintiff was stopped at an intersection in Palmdale, CA and was rear-ended by defendant.  There was significant property damage evidencing a major impact.  Liability was conceded at the time of trial but, the defense attempted to claim that the plaintiff (an appliance repairman by trade), was suffering from injuries that were either “degenerative” (i.e. naturally caused by his age and physical condition) or were caused by a subsequent motor vehicle accident.

Settlement Discussions: The “best and final” settlement offer from the insurance defense carrier, State Farm, was $30,000.  This was, again, based upon the arguments regarding lack of causation on damages.  The plaintiff demanded the full policy limit of $250,000.

Result: After a 1 week trial by jury, a verdict was rendered in the amount of $57,327.93.  The plaintiff filed a motion for award of court costs and other expenses related to putting on the trial and the total approximated $70,000.

Things I Find Interesting About This Verdict in my Perspective as a Plaintiff’s Personal Injury Lawyer in Los Angeles: In full disclosure, my law firm (Glotzer & Sweat, LLP) was personally involved in the representation of the plaintiff in this case.  Therefore, I have some “personal” perspective on this one.  The argument that the back injuries suffered by the person filing an injury claim are “degenerative” is a very common argument made by insurance companies defending these claims.  In fact, I think it is used in just about every case I have prosecuted where the plaintiff is over the age of 40 (and, sometimes, even when the claimant is younger).  I don’t think this held much weight with the jury in this case as I don’t think it holds much weight with many juries unless there is some indication in the prior medical records that would indicate complaints of previous injuries to a same or similar body part.  A bigger issue, was the subsequent motor vehicle accident.  Unfortunately, it happens sometimes that a plaintiff is in the middle of a lawsuit over a personal injury claim and is then involved in a subsequent accident.  This is because, on average, it takes about 1-2 years at present to get a case processed by the courts and get a trial date in Los Angeles County.  When this does happen, the insurance company (in my experience) will naturally “latch on” to the second accident as the “sole” cause of injury.  As is generally the case, they use this as an excuse not to pay.  In this case, I believe that the jury bought their argument (somewhat) but, I think the adjuster still made a miscalculation as to the weight a jury would place on a second motor vehicle collision.  I think this is reflected in the final verdict amount.

Additional Resources: State Farm Auto Accident Claims in California (Los Angeles Injury Lawyer Blog)  

Jury Award of $113,000 After Farmers Insurance Group Settlement Offer of $4,000

Mego v. Stefanescu, Los Angeles Superior Court Case No. BC505051

Facts of the Case: The plaintiff (apparently a singer and dancer by profession) was attempting to back out of a driveway when he was “T-boned” by a driver coming down the street.  Liability was in dispute as were the claimed damages.  The defendant claimed that he was at a complete stop and that the plaintiff backed into his vehicle.  The defense also argued that the claimed injuries were suspect due to a delay of several months between the initial medical treatment and  subsequent treatment including epidural injections.  They also argued that the claim of a need for future treatment was unnecessary. (One interesting note about “pre-trial” procedures was that the plaintiff was able to have the defense medical expert’s testimony excluded by way of a “motion in limine” – a request to exclude evidence made to the judge).

Settlement Discussions: Farmers Auto Insurance offered a mere $4,000 to the plaintiff in this case.  The plaintiff made what appears to be a policy limits demand of $15,000 (Note: the amount is stated in the reported verdict but, I am guessing that this was the limit based upon the fact that $15,000 is the statutory minimum auto insurance limit in California).

Result: After a 4 day jury trial, the plaintiff was awarded $113,375 which broke down as $49,295 in “economic damages” (cost of medical treatment and other out of pocket expenses) and $64,080 in “non-economic” damages (i.e. for physical pain and mental distress caused by the incident).

Things I Find Interesting About This Verdict in my Perspective as a Plaintiff’s Personal Injury Lawyer in Los Angeles: I find several things interesting about this verdict.  (1) Delay in treatment is ALWAYS used as an excuse not to pay by auto insurance carriers like Farmers.  In my experience, this is one of the most common arguments made to avoid paying an auto insurance claim; (2) Completely excluding a expert’s testimony is rare.  There must have been either serious issues with the scope of his expertise vs. the opinions he intended to offer or there may have been a procedural violation such as a failure to timely designate the expert by the defense.

Additional Resources: Farmers Insurance Auto Accident Claims in California (Los Angeles Lawyer Blog)

 

mercury insurance, auto accident claims, CaliforniaMercury Insurance is one of California’s largest auto insurance carriers.  In a recent decision, Mercury Cas. Co. v. Chu, 229 Cal. App. 4th 1432, 178 Cal. Rptr. 3d 144 (2014) the Fourth District California Court of Appeal has upheld a $333,300 judgment despite protests by the insurance carrier that the claim was not covered.

Facts of The Case: 

Mercury Casualty issued an insurance policy to Hung Chu insuring his automobile. Chu was driving with his roommate, Tu Pham, when Chu collided with another vehicle, injuring Pham. Pham filed a personal injury action against both Chu and the driver of the other vehicle. Mercury agreed to provide Chu with a defense to the lawsuit under a “reservation of rights” but, asserted that Pham’s injuries were not covered because Pham qualified as an “insured” under the policy due to the fact that he resided with Chu at the same address. The policy broadly defined an “insured” to include “residents,” defined as, “an individual who inhabited the same dwelling as the insured.” According to Mercury, the permitted exclusion authorizing auto liability insurance to exclude coverage for bodily injury claims brought by an insured applied and they should not have to pay the judgment against Chu by Pham.

Legal Issues to Be Decided:

In California, auto insurance companies are free to draft “exclusions” to coverage for either classes of persons or types of situations.  One common exclusion is to exclude from coverage any accidents where a “resident” of the household is driving but, was not specifically included on the policy.  In this case, the “exclusion” argued was one of one “insured” trying to sue another “insured”.  Mercury argued that Pham, as Chu’s roommate, was a “resident” and an “insured” and should not be able to bring a claim against Chu.

Summary of Decision:

The trial court determined that the Mercury Insurance policy at issue did in fact exclude coverage for Pham’s personal injury lawsuit against Chu.  Chu and Pham appealed the trial court order granting summary adjudication in favor of Mercury and interpreting the policy as not providing coverage to Chu’s roommate.  The court of appeal reversed and remanded, concluding that the non-relative resident clause that defined the roommate as an “insured” was an overbroad extension of the statutory “insured” exclusion and was contrary to public policy. California Insurance Code § 11580.1(c)(5) authorized automobile liability insurance carriers to provide for exclusion of liability to either “an insured” or “an insured whenever the ultimate benefits of that indemnification accrue directly or indirectly to an insured.” In addition, cases like Farmers Ins. Exchange v. Cocking, 29 Cal.3d 383 (1981), where the court determined that a wife could not seek benefits from her husband’s automobile policy, upheld that a resident exclusion was consistent with public policy. Mercury relied on the statute and on Cocking and other case law to support expanding the exception to non-relatives residing together.  The Court of Appeal disagreed and held that, unlike relatives, mere “cohabitants” (like roommates) were transitory in nature and should not be considered in the same class as permanent residents of the household related by blood or marriage.
This decision is subject to appeal to the California Supreme Court, who could overrule the appellate court.  In addition, a request could be made to de-publish this decision which, if granted, would leave it without value as citable precedent to support future decisions.

My take on this decision as a California personal injury attorney:

In my representation of auto accident victims in the last 18 plus years in CA, I have found Mercury Casualty Insurance to be one of the more difficult carriers to deal with and obtain a fair and expeditious resolution on auto accident claims.  This appears to be yet another example.  Although, the case did present a novel legal argument that the appellate court admitted was one of “first impression” (i.e. had not been ruled upon before by another California appellate level court), it seems to be a “stretch” to try to exclude coverage for an accident involving a named insured driving and injuring a passenger in their vehicle simply because the passenger happens to also be the driver’s roommate.

Additional Resources:

Insurance Law Blog – Covering various topics related to auto and other insurance claims issues 

Hotel Accidents; California; Personal Injury LawI saw an interesting appellate decision out of the California Fourth District Court of Appeal (Southern California) regarding tort liability of hotel operators.  The case was Lawrence v. La Jolla Beach and Tennis Club, Inc. – decision rendered October 31, 2014 (Reference Daily Appellate Report @ 14737).

Facts of the Case: On October 5, 2008, Jeff and Nan Lawrence checked into the La Jolla Beach and Tennis Club Hotel with their three sons.  This was a family vacation and a celebration of the sixth birthday of their two twin boys.  Nan made a request to be placed on the first floor of the hotel but, at the time of check-in, was informed that there were no first floor rooms and was given a room on the second story of the building.  Nan opened the window in their room to hear the ocean.  The three boys were playing and eating grapes inside the room.  Jeff was working on his computer and Nan was planning a schedule when they heard a scream from one of the children.  They ran to the window to find that their son, Michael, had fallen out of the window and onto the concrete pavement below.  Michael suffered major head and brain injuries.

It appeared that when the little boy fell against the window, the screen popped out and fell to the ground.  The window sill was approximately 25 inches above the floor and about 4-6 inches deep.  The plaintiff testified in a deposition that he had placed his foot on the window screen and leaned forward to look out of the window just before falling out.

Legal Issues Raised by Defendant: The Hotel, through their attorneys, filed a Motion for Summary Judgment (a procedural request under California Law whereby a defendant argues that, even if all facts are true, there are no legal issues in dispute and defendant is entitled to a judgment in their favor “as a matter of law”).  The motion raised the following issues:

  1. Plaintiff’s parent’s own carelessness and failure to use precautions was the sole cause of the boy’s fall;
  2. Defendants were not negligent in the ownership and operation of the premises;
  3. The window complied with all applicable building codes;
  4. The screen through which plaintiff fell was not a safety device; and
  5. Plaintiff’s were never “guaranteed” a ground floor room.

A claim for negligence in California requires a showing of a duty on the part of a defendant (person or entity against whom a claim is brought); a breach of that duty; the breach being the legal and actual cause of damages to a plaintiff (person bringing the claim.  In essence, the legal arguments of the hotel was that they had no duty to protect against such an incident, that they did not breach any such duty and/or that any alleged breach of duty was not the cause of the injury.  The trial court agreed with their arguments and granted the motion to dismiss the case.  An appeal followed.

The Appellate Court reversed the trial court’s decision and reinstated the plaintiff’s case.  The reasoning on this issue was as follows:

  • On the Issue of Whether the Hotel Owed a Legal Duty to the Injury Victim: The appellate court found that the Hotel did, in fact, owe a legal duty to the plaintiff as a guest of their property.  Furthermore, they found that “a greater degree of care is generally owed to children because of their lack of capacity to appreciate risks and to avoid danger.” (citing McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7).  Citing to prior precedent, they found that a landlord was held to owe a duty to protect children from falling out of windows when the condition or design of the window increased the risk of small child falling out. (citing Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895).  The Court further held that a parents’ failure to closely supervise a child may be a factor in determining causation but, not in determining whether a duty was owed. Finally, the Court further held that the owner’s compliance with applicable safety regulations or codes was relevant to show “due care” but, was not dispositive on these issues when the circumstances required a duty of care higher than just the safety standards.
  • Breach of Duty of Care by Hotel Owner: The court held that, while whether a legal “duty” exists is normally a question of law, the issue of whether a duty was breached in any particular factual scenario was usually reserved to the judgment of a jury.  The court held that plaintiff, through their expert witness, had presented triable issues of fact on whether a duty had been breached.  In opposition to the motion, plaintiff’s expert (a mechanical engineer) provided a sworn declaration noting that he had inspected the property and there were safety bars on two of the other windows in the hotel room and on ocean-facing windows in other rooms but, not on the window through which plaintiff fell.  The court also noted that the hotel representative, in his deposition, admitted that the bars were placed on the other windows to keep the screens from popping out.  There were also no restrictive devices placed upon the window to keep it from fully opening despite the fact that it was only 25 inches off the floor.   All of these facts created issues that the appellate court said should be presented to a jury to make up their own mind as to whether or not a duty had been breached by the hoteliers.
  • Causation of Injury: The appellate court noted that the “causation” standard in California was one of whether defendant’s negligence was a “substantial factor” (i.e. was one, but, not necessarily the ONLY) factor in causing injury and whether it contributed to the injury in more than just a trivial way.  The court ruled that the same evidence showing that there was a duty and breach supported allowing a jury to decide whether or not renting a hotel room to a family with young children knowing it had windows that could fully open and no safeguards to keep a small child from falling out was a “substantial factor” in causing the injury to the plaintiff.  The court noted that, “A defendant’s negligent conduct may combine with other factors to cause harm” but, the defendant should still be liable for contributing to the harm.  (i.e. even if the plaintiff’s parents were negligent, the hotel may still be held liable for their percentage of fault in causing the incident).

My “Take” On This Decision As A California Personal Injury Lawyer:  I believe that the appellate court got it right here.  Landlords, hotel operators, commercial businesses and any other person or entity that owns, occupies or leases property in California should be held to a standard of “reasonableness” in the construction, maintenance or control of the property. This is especially true when they are aware of the presence of children on the property who are not fully able to appreciate the dangers and risks associated with certain conditions.  Furthermore, California law is clear that even if one of several defendants has done or not done something that contributes to an incident in any way that is “not trivial or remote” and that it does not have to be the ONLY thing that caused harm but, can be one of several things. (See California Civil Jury Instruction 430).

 

Additional Resources:

Civil Claims Arising From Personal Injuries Sustained on Hotel Properties in California

Summary of California Law on Premises Accident Claims  

 

 

pedestrian accidents; halloweenHalloween child pedestrian accidents in California are still a major problem, as they are across the United States.  We all love to see our kids dress up in costumes and be able to go from door to door trick or treating but, according the “Safe Kids USA” and the Centers for Disease Control, children are more than twice as likely to be struck by a car on Halloween than any other day of the year ! This is even more true in densely populated urban, residential neighborhoods like we have in Los Angeles, Orange County and other parts of Southern California.

What are the most common scenarios for minors being struck by cars on Halloween:

  • Most fatal child pedestrian accidents occur between 5:00 p.m. and 9:00 p.m. on October 31st with 6-7 p.m. being the peak hour for such incidents
  • Only 30 % of accidents occurred at intersections or crosswalks
  • As many as 12 % of children under the age of 12 are reported to have been trick or treating ALONE
  • Most accidents between pedestrians and motor vehicles can be partially or wholly attributable to lack of visibility

Trick or Treat Safety Tips for Pedestrians and Motor Vehicle Operators

Based upon the statistics cited above, it is clear that children (including kids under 12 and teenagers) are at high risk to be involved in an auto v. pedestrian mishap on “All Hallows Eve” due to many common factors.  Lack of adult supervision, lack of visibility, poor judgments when crossing roadways, and walking in heavily trafficked areas all contribute to catastrophes of kids getting hit by cars and either injured or killed.

Tips for Pedestrians

  1. Never allow a child younger than 12 to trick or treat without being accompanied and supervised by an adult
  2. Don’t Jaywalk!  Always cross the street at or near an intersection and within a crosswalk, if at all possible
  3. Try to finish trick or treating a little prior or a little after the “peak hour” of 6-7 p.m.
  4. Make sure that your child is visible (have them carry a flashlight, glow sticks or other devices and/or put bright colors or reflective tape on their costumes or candy buckets)
  5. Before stepping out in front of a car, make eye contact with the driver so that you are sure they see you
  6. Walk on the sidewalks if at all possible
  7. On multi-lane roads, make sure EACH lane has cleared before crossing
  8. Don’t wear masks that can obstruct your vision.  Makeup is a better alternative.

Tips for Drivers

  1. NEVER DRIVE DRUNK.  Halloween is one of the biggest “party nights” of the year.  If you plan on drinking, designate a sober driver!
  2. Slow down and look twice for kids!  Anticipate that children may dart out into the street.  California Vehicle Code 22350 mandates that every motor vehicle only drive as fast as is reasonable given ALL traffic conditions including the presence of pedestrians.  Furthermore, California Vehicle Code 21950(a) requires all drivers to yield the right of way to pedestrians lawfully within a marked or unmarked crosswalk at an intersection.
  3. NEVER pass a vehicle that is stopped for pedestrians.
  4. Look carefully behind your vehicle for pedestrians before backing up.

If we all take a little extra caution in preparing and accompanying our children and in driving a little more prudently this Halloween season, we can reduce pedestrian traffic collisions!

As a personal injury attorney, I think some of the toughest cases I have handled in the past almost 20 years are children hit and killed or seriously injured by motor vehicles.  Just a little bit of extra caution can go a long way to preventing this type of tragedy on Halloween or, for that matter, any other day or night during the year.  All fall, the days are shorter and children are traversing on our streets to go to school or to play.  SLOW DOWN and LOOK TWICE!  It could save a life!

Sources:

“Safe Kids USA” – Pedestrian Safety Fact Sheet, 2014

Additional Resources:

California Pedestrian Accident Claims Involving Minors (Los Angeles Injury Lawyers)

Right of Way Accident Claims in California (Los Angeles Injury Lawyers)

Teen Driving Accidents in California, accident lawyer, injury attorneyA car crash resulting in multiple teen deaths in Orange County, CA was reported by the Los Angeles Times to involve the following all too common factors in traffic collisions involving younger persons as follows:

  • The auto accident happened at approximately 2:10 a.m. as the teens were returning from Knott’s Berry Farm.
  • There were five total occupants in the vehicle at the time of the crash (A driver and four passengers).
  • Three of the five passengers are believed to have died from blunt force trauma from the impact rather than a subsequent vehicle fire that broke out.  This could indicate a lack of seat belt use.
  • The accident appears to have involved a vehicle that veered off the freeway, went up an embankment, slammed into a guard rail and burst into flames.  This indicates that the driver was probably traveling at an excessive speed for roadway conditions and/or made some other dangerous driving maneuver prior to the crash.
  • The teen driver operating the motor vehicle when it crashed is reported to not have had either a permanent or even restricted license.

What can we learn from this terrible tragedy?

As a personal injury attorney serving Los Angeles and Orange County, CA, I have, unfortunately, seen many such tragedies involving traffic collisions with teenage drivers and passengers.  As I discussed in a related blog post ,  motor vehicle collisions involving younger people tend to have common factors.  These include the following:

  • Inexperience behind the wheel which leads to either unsafe driving techniques or an inability to ascertain the proper speed and distances needed to negotiate a particular driving maneuver
  • Too many people in the car, which can lead to rowdy behavior and other distractions which can take the driver’s attention off the road.
  • Distracted driving due to cell phone, loud radio music or other similar diversions of attention.
  • Lack of seat belt use.
  • Driving in the late night or early morning hours which can lead to drowsiness or fatigue of the driver.
  • Driving under the influence of alcohol or drugs (although, there doesn’t seem to be a finding of that in this particular case).

My advice as an auto accident lawyer who deals with claims involving teenage accident victims in Los Angeles and Orange County CA:

First and foremost: I am a huge advocate of education.  This includes formal driver’s safety education classes such as those offered through programs approved by the California Department of Motor Vehicles.  Education has to continue, though, through parents, older siblings, teachers, mentors and other  adults with relationships with teen drivers.  Following the protocol set forth by the CA DMV for obtaining a provisional license first and driving with an adult is the best way, in my opinion, to get some of this “hands on” training.  Driving is a skill that develops over time and, just like any other skill, it needs to be practiced.  Second: I would never suggest allowing teenage drivers to operate a motor vehicle with other teen passengers.  In fact, California law forbids this practice in many circumstances especially during the provisionary licensing stage.  Third: We need to teach kids and young adults the importance of seat belt use.  Lack of safety restraints is the NUMBER ONE cause of fatalities in motor vehicle accidents according to any number of studies including those conducted by organizations like the National Highway Traffic Safety Administration.  Fourth: It goes without saying that teaching the dangers of driving under the influence cannot be stressed enough at home and school.  Finally, restricting the hours when a teen can use the family car to daytime or early evening is a good way to reduce the chance of collisions.

Our hearts and prayers go out to the families of the victims in this terrible incident!

police brutality claims in California, Los Angeles police misconduct lawyerThe Los Angeles Times reported today (see article here) that the California Highway Patrol has agreed to settle a civil rights police brutality claim for $1.5 Million.  The plaintiff, Marlene Pinnock, was a 51 year old woman who was held on the ground and repeatedly punched by a CHP officer on the side of the 10 freeway near Los Angeles.  The beating was videotaped by a passing motorist and the videotape sparked widespread protest.  I thought I would use this incident to explore the legal aspects of such claims.

What is the legal standard for a civil rights violation or other claims for personal injury in California and under Federal Law related to police brutality?

The main statute pertinent to these types of claims is a federal statute found in chapter 42 of the United States Code at section 1983 which states, in pertinent part, as follows:

“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress …”.

To break this down into elements, a person claiming to have had their civil rights violated by actions of a “peace” officer would need to show the following:

  • That the police officer was a “person” acting “under the color of state law.”   This requires a showing that the law enforcement official was acting in their official capacity at the time of the incident.  In this CHP beating case example, the officer was clearly “in the line of duty” at the time of the incident, in uniform and acting in his official capacity as a highway patrolman.
  • The “subjects or causes to to be subjected” is a causation requirement.  In other words there must be some act or failure to act on the part of state officials that caused a violation of civil rights.  Clearly there was a beating of an individual in this case that caused physical or emotional harm, however, the argument to hold the state agency (in this case CHP) responsible would be either a lack of training, supervision, or some other policy or procedural violation.
  • The language “deprivation of rights … secured by the Constitution and laws” requires that the constitutional rights are violated.  In the case of police misconduct claims like this one, the principal constitutional provisions that may be violated are found in the Fourth Amendment, which prohibits unlawful arrest, imprisonment or excessive force by police and the Fourteenth Amendment, which mandates “due process of law” to individuals suspected of criminal activity.  In other words, the argument here would be that the victim had a right to be detained or arrested through proper legal process and without being subjected to excessive force on the part of the police officer.

In addition, tort laws in California would allow for individual causes of action against the officer for assault, battery, and intentional infliction of emotional distress.  A civil assault is defined as intentional acts which cause another person to be placed in fear for their safety and a battery is unlawful or offensive physical contact of an individual by another person. (See:  California Civil Jury Instruction 1301 – Assault and California Civil Jury Instruction 1300 – Battery ). The tort of inflicting emotional distress requires intentional “extreme conduct” which causes “severe emotional distress” and was either intentional or done with a “reckless disregard of the probability that the plaintiff [person bringing suit] would suffer emotional distress.” California Civil Jury Instruction 1600 .  There are also California state statutes which may come into play such as the “Unruh Civil Rights Act” found in California Civil Code 51 and 52 which prohibits denial of civil liberties based upon immutable characteristics such as “race, gender, ancestry, religion, national origin, disability or medical condition”.  While there are many other state and federal laws that may be implicated in a police misconduct claim in California, these would be the main, potential legal causes of action.

Importance of consulting and retaining an attorney promptly following a case of potential police misconduct in California:

Fortunately, CA has hundreds of police officers in both state and local agencies who do a fine job of law enforcement without resorting to the type of conduct reflected in this incident. However, given the size of the State of California, the number of law enforcement personnel employed in the Golden State and the number of encounters between citizens and police, there are bound to be incidents which may give rise to civil claims for police brutality or misconduct.  These include shootings, beatings, false imprisonment, improper arrests and other instances.  Civil claims for money damages that may be brought in these cases have very strict requirements and procedures.  For example, there are additional Government Tort Claims that must be filed as a precursor to bringing a court action and the results of criminal proceedings can effect and, sometimes, invalidate civil claims.  For all these reasons and more, it is crucial to consult with a lawyer familiar with Cal. civil rights claims involving police as quickly as possible.  Obtaining the right legal advice and taking the right actions in a timely manner can mean the difference between being able to recover for medical expenses, emotional harm and, potentially, punitive damages and other remedies or losing all legal rights to do so!

 

surgical instrument, medical negligence, California law“Res Ipsa Loquitur” is a Latin phrase which, literally, translates to, “the thing speaks for itself.”  Under California personal injury laws, its meaning is that there are times when evidence cannot necessarily be shown to determine if there was negligence but, the facts and circumstances surrounding an injury show that the person hurt would not normally be harmed in the manner in which they were in the absence of a negligent act.  In other words, where the accident giving rise to injury is probably the result of someone’s negligence because such things usually do not happen absent legal culpability, then the trier of fact [judge or jury] may infer that negligence occurred and the burden would shift to the defendant to show evidence to the contrary. Brown v. Poway Unified School District (1993) 4 Cal.4th 820 .

The law is set out in California Evidence Code §646 as follows:

“(b) The judicial doctrine of res ipsa loquitur is a presumption affecting the burden of producing evidence.
(c) If the evidence, or facts otherwise established, would support a res ipsa loquitur presumption and the defendant has introduced evidence which would support a finding that he was not negligent or that any negligence on his part was not a proximate cause of the occurrence, the court may, and upon request shall, instruct the jury to the effect that:
(1) If the facts which would give rise to a res ipsa loquitur presumption are found or otherwise established, the jury may draw the inference from such facts that a proximate cause of the occurrence was some negligent conduct on the part of the defendant; and
(2) The jury shall not find that a proximate cause of the occurrence was some negligent conduct on the part of the defendant unless the jury believes, after weighing all the evidence in the case and drawing such inferences therefrom as the jury believes are warranted, that it is more probable than not that the occurrence was caused by some negligent conduct on the part of the defendant.”

Three Prong Test for Applying the “Presumed Negligence Doctrine” in California

There are generally three prongs that must be met in order to presume a negligent act under the Laws of the State of California as follows:

 

• That the accident is of a kind which ordinarily does not occur in the absence of someone’s negligence;

 

• That the accident was caused by an agency or instrumentality within the defendant’s (or defendants’) exclusive control; and

 

• That the accident was not due to any voluntary action or contribution on plaintiff’s part. [Newing v. Cheatham (1975) 15 C3d 351, 359, 124 CR 193, 199; see California Civil Jury Instruction 417].
In determining whether this condition is satisfied, the trier of fact may consider common knowledge, expert witness testimony, and the circumstances relating to the particular accident in issue.  This is normally an issue for the trier of fact (i.e. a jury).

Examples of when this doctrine is applied in different personal injury claims

Common instances where a “res ipsa loquitur” presumption would arise would include the following:

  • Patient with an instrument left inside their body cavity following surgery: In the medical malpractice context, the most common instance is when a patient comes out of surgery only to find that a surgical instrument such as a clamp, sponge or other device has been retained in his or her body cavity.  Normally, doctors and nurses are supposed to count the total number of instruments and devices and to recount what was used after the surgery to insure that such things don’t happen.
  • Premises Liability Claims: While the typical “slip and fall” in a commercial establishment usually doesn’t evoke the doctrine of Res Ipsa Loquitur, there are instances where the doctrine has been applied related to accidents on commercial properties such as restaurants.  For example, the doctrine was applied to an instance where a person was injured when a stool (being used normally) collapsed and caused a fall.  The court reasoned as follows:
    “First, it is safe to say that in light of common experience, a counter stool does not ordinarily fall off its base when used normally unless someone is negligent. Second, the counter stool in this case was in respondent’s exclusive control. According to the declarations of Jose Delgado, the manager of respondent’s restaurant for 14 years preceding the current manager, and Tomas Ruiz, who has been the manager of respondent’s restaurant since November 2007, no changes or modifications were made in the method by which the stool was attached to its metal base. Finally, appellant sat upon the stool in an ordinary manner, tilting it about an inch to facilitate his doing so. There was sufficient evidence to establish that the doctrine of res ipsa loquitur applied.” Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1162 [117 Cal.Rptr.3d 126, 130]
  • Product Liability Claims: There are numerous instances where products explode or break upon normal use and the courts have applied the Res Ipsa doctrine to show that the “instrument of injury” (the product) was in the exclusive control of the manufacturer and/or distributor and would not have exploded or broken absence negligence in the manufacturing or distribution of the product.

Necessity for employing a knowledgeable California injury lawyer to analyze any instance where a presumption of negligence may lie:

While it is rare that a California court would allow an instruction that negligence may be presumed, these cases can and do happen.  Without the assistance of competent legal counsel to analyze the facts of any particular case, it is impossible to know whether this doctrine applies or if it can be used to leverage a settlement or to obtain a judgment by jury trial.  Retaining an attorney to analyze these instances is crucial!

explosion accidents, California, San Bruno, California LawThe California Public Utilities Commission (CPUC) has issued a fine of $1.4 Billion against Pacific Gas & Electric, a California Utility Provider for the gas pipeline explosion in San Bruno California that killed 8 people including a mother and her 13 year old daughter.  The explosion engulfed an entire suburban neighborhood in flames.  The fine is believed to be the largest ever issued by the CPUC, the CA administrative agency charged with regulating commercial utility providers.  It follows a prior order for PG&E to pay over $600 Million to repair and upgrade the gas pipelines.  The decision is expected to be appealed.

The facts of this incident are particularly egregious in that the explosion was apparently caused by a faulty weld in a pipe which the utility company had previously reported as “smooth and unwelded.”  After significant investigation, the CPUC and federal authorities determined that PG&E was derelict in their duties to maintain the pipes in a safe condition for delivery of natural gas and that they failed to shut off the gas for approximately 95 minutes after the initial blast.

The explosion has prompted numerous wrongful death lawsuits filed.  The attorneys representing the victims have alleged and are conducting discovery into the prior lapses of safety procedures that led up to this tragic incident.  One such lawsuit alleges that, ““PG&E had knowledge of this pipeline’s defective condition [citing over 411 prior citations for lapses in safety] but put profits ahead of public safety.” (See here).

California Law on Accidents Caused by Hazardous Activities Like Gas and Electricity Delivery

California, like many other jurisdictions, holds persons engaging in so-called “ultra-hazardous activities” like the delivery of explosive materials like natural gas or potentially dangerous products like electricity to the highest duty of care possible.  In fact, California law states as follows:

“People must be extremely careful when they deal with dangerous items or participate in dangerous activities. [Delivery of natural gas] is dangerous in and of itself. The risk of harm is so great that the failure to use extreme caution is negligence.”

Based upon this standard and the findings of the various investigations, it is my opinion that PG&E will likely not only settle the various pending wrongful death actions but, pay full value to do so.  It is likely that they may even stipulate to liability for purposes of a jury trial so as to mitigate the introduction of evidence that shows that they acted with gross negligence.  Plaintiff’s counsel will likely want to introduce as much of this evidence as possible in an attempt to not only seek maximum value for the loss of life but, punitive damages as well.  California law provides for compensation to wrongful death claimants (including the spouses, children and parents of the decedent victim) for the loss of income (assuming they were financially dependent upon the deceased) and, in addition, a monetary value for the loss of “love, companionship, comfort, care, assistance, protection, affection, society, moral support” provided by the decedent.  In addition, damages meant to punish the defendant and deter future wrongful conduct are available upon a showing (by a higher burden of proof [“clear and convincing evidence”]) that the defendant engaged in conduct which showed a “reckless disregard for the rights and safety of others.”
Settlement discussions in this case will clearly center around the value of the claims rather than liability.  Each lawyer for the plaintiffs will need to present evidence of the nature and extent of the relationship of any survivor to the deceased victims for purposes of calculating a value of the claim.  In addition, PG&E will likely argue (based upon various authorities including U.S. Supreme Court decisions) that the potential award of punitive damages must bear a “reasonable relationship” to the “compensatory” award. (i.e. the punitive portion of the award must not be extremely disproportionate to the amount awarded for loss of income and the loss of relationship).
We offer our condolences to the families of the victims in this case.  We wish the attorney representing these victims to seek maximum recovery for this devastating event and hope that any amounts paid as either fines, settlements or judgments, will provide and incentive to PG&E and other California utility companies to make their practices safer to reduce the chances of this type of tragedy in the future!

Additional Resources:

California Law on Recovery for Personal Injuries Caused by Dangerous Activities

elder abuse, California lawAccording to the governmental statistics compiled and studies conducted by the California Department of Aging, the population of the Golden State over the age of 60 (considered “elderly”) and over the age of 85 has steadily increased and is expected to continue increasing over the next several decades.  In fact, Cal. is expected to have a 112% increase in their older citizens between 1990 and 2020, according to statistical data.  While medical advances and other factors have increased both life expectancy and quality of life for older Californians, the fact still remains that, at some point in time, most if not all elderly persons will need the assistance of either a home caregiver or to become a resident in a long term care nursing home or assisted living facility.  While the vast majority of these health care providers provide quality and caring service, acts of negligence and even intentional abuse of the elder population can and still do happen with too much frequency.  This is why the laws of the State of California have long provided for protection of the elderly through regulation and enforcement of strict guidelines for elder care workers and facilities and through civil remedies for monetary damages for the abuse of the elderly.

Definition of Elder Abuse Under CA law:

Elder abuse is defined as physical, emotional and/or financial abuse of any adult over the age of 65 under California Welfare and Institutions Code 15600 and following. Depending upon the type of abuse claimed, the elements include the following:

  • Financial Abuse of An Elder Adult: Under California Welfare and Institutions Code section 15610.30 a defendant is liable for civil damages upon proof that the defendant did the following: (1) “took, hid, appropriated or retained” the property of a person 65 years old or older; (2) for a “wrongful use” or “with the intent to defraud”; and (3) this caused damages to the elder person.
  • Neglect of An Elder: One is liable for “neglect” as defined by California Welfare and Institutions Code 15610.57 upon proof of the following: (1) the defendant had “care or custody” of an adult person 65 years of age or older; (2) Failed to use the degree of care that a reasonable person in the same situation would have used by “failing to assist in personal hygiene or in the provision of food, clothing, or shelter; failing to provide medical care for physical and mental health needs; failing to protect the elderly person from health and safety hazards; failing to prevent malnutrition or dehydration” or any other means of negligence; which (3) caused harm.
  • Physical Abuse: Under Cal. Wel. and Inst. Code section 15610.63, a defendant is liable for physically abusing an elderly adult when they engage in physical abuse of an adult over 65 years old and this causes harm (including physical or emotional damages) to the adult over 65.

While the amount necessary to compensate for actual harm is recoverable if any of the above is shown, the additional, so-called, “enhanced remedies” (which include potential punitive damages and an award of attorney’s fees and costs) are available upon a showing that any of the above actions were done with recklessness, oppression or fraud.  Case law has held that, “a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature. ‘Recklessness’ refers to a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ ” Delaney v. Baker (1999) 20 Cal.4th 23.   In addition, if the egregious conduct is on the part of an employee of a nursing home, extended care facility, assisted living arrangement or some other employer charged with physical care of the elderly, that an “officer, director, or managing agent” of the employer had advance knowledge of the unfitness of the employee for their job duties and employed them with a “knowing disregard for the rights and safety of others.” California Civil Jury Instruction 3102.

 

 

Additional Resources:

“What Should I Know About Elder Abuse?”, pamphlet, State Bar of California

California Long Term Care Ombudsman Program

California Nursing Home and Elder Abuse Claims Attorney