Articles Posted in California Personal Injury Law

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California-Personal-Injury-Case-LawWhen people in California decide to participate in inherently risky activities, they assume the risk that they will be injured unless the operators of the activities engaged in conduct that was grossly negligent. In Grotheer v. Escape Adventures, Cal. Ct. App. 4D, Case no. E0634449, the court examined the concept in the context of a hot-air balloon ride in which a female passenger was injured after signing an express waiver of liability.

Issue: Is a balloon company a common carrier, and was the express waiver of liability sufficient to preclude a finding of liability?

Grotheer, a 78-year-old German woman, was a passenger on a hot-air balloon ride that had been purchased for her by her son while she was visiting California. Grotheer could not speak English. Prior to the ride, her son explained that she could not speak or understand English to the balloon operator but was apparently waved off. Grotheer signed an express waiver of liability prior to the balloon’s takeoff. The trip was apparently uneventful until the landing. The balloon descended too rapidly and crashed through a fence before crashing forcefully to the ground. The force of the landing caused the balloon’s basket to skip across the ground before it came to rest on its side. Grotheer landed at the bottom, and her leg was broken in the crash-landing. She filed a lawsuit against the balloon’s operator, the balloon company and the vineyard from where the balloon launched, alleging negligence. The defendants filed a motion for summary judgment, arguing that Grotheer assumed the risk when she chose to go on the hot-air balloon ride, that the company was not negligent or that if it was, it was not grossly negligent to the extent that the assumption of the risk standard would not apply.

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apple watch, personal injury lawTrial attorneys learn early in their careers that each group of jurors is a blank canvas waiting for the evidence that will paint a picture of events as their clients seek to portray them. It is the task of the attorney to convince the jury that allegations are facts that can be believed and relied upon.

Needless to say, personal injury cases offer the greatest challenge to lawyers who must prove the effect an accident had on a client’s ability to go about his or her daily activities. In the past, attorneys resorted to commissioning professionally prepared videos portraying what purported to be an average day-in-the-life of the accident victim. The video could be played in court to offer jurors visual proof to support the testimony of the victim.

Wearable Data Offers an Alternative to Videos

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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

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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:

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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.
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California Personal Injury LawsThis November, California voters will get to decide whether or not the caps on damages in medical malpractice cases should be raised for the first time since they were enacted in 1975.   Along with this lift on damages, will be further measures to prevent doctors from being under the influence of alcohol or drugs while treating patients and to prevent them from over prescribing pain medications to persons with a history of substance abuse.  The ballot initiative is proposition 46 (also known as the Troy and Alana Pack Safety Act of 2014) and the highlights are as follows:

  • An increase in the current limit on non-economic damages from $250,000 to account for inflation since 1975, which would place the limit at slightly over $1 Million.
  • Require drug and alcohol screening of physicians and mandatory reporting to the California Medical Board for those who test positive.
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wrongful death lawyer Los Angeles The Hollywood Reporter reports today that the death of Lisa Robin Kelly at a drug rehabilitation facility in California (“Pax House”) has spawned a wrongful death lawsuit by her former husband, Robert Gilliam.  (http://www.hollywoodreporter.com/thr-esq/estranged-husband-70s-show-actress-710636).  The story seems to indicate that Mr. Gilliam was “estranged” from Kelly in the period shortly preceding her death.  The allegations as set forth in his complaint are that he was trying to get Kelly into a drug rehab closer to their former home in N.C. and that he had a loving relationship with Kelly and, therefore, valid claims as a widower.

What is the standard under California law for damages in a wrongful death lawsuit?

Obviously, Mr. Gilliam will have to prove that the drug rehabilitation facility is liable for the death of Ms. Kelly, which require showing that they fell below the standard of care for a health practitioner in the business of providing addiction treatment.  He will also need to show that this was a legal cause which contributed in more than a trivial way to the death.  If he does prove these allegations, however, he must then demonstrate the value of his claim (i.e. his “damages”).

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California Personal Injury Laws

California Personal Injury Laws

When do California courts deem a defendant to have “caused” personal injury to the extent that they should be held to pay damages to the injured party?  This was a long standing debate in the State of California up until fairly recently.  Based upon definitions of “causation” dating back to English tort law and moving forward to the 20th century, there were differing standards.  In 1991, in a decision entitled Mitchell v. Gonzalez (1991) 54 Cal.3d 1091, the California Supreme Court made a ruling which did away with some of these varying definitions and made a decision that now forms the basis for the current jury instructions including California Civil Jury Instruction 430.

Legal Background of Defining Who and When Someone “Causes” A Personal Injury

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California, Personal Injury LawThe Third Circuit Court of Appeal in California has recently issued a ruling in Corenbaum v. Lampkin (2013) 215 Cal.App.4th 1308, that, in my opinion as an attorney that represents injured victims in California, has simply added insult to injury to a terrible decision issued in prior CA Supreme Court case, Howell v. Hamilton Meats, Co.  As I discussed at length in a blog post last year (click here), the Howell decision basically held that persons claiming personal injury in California who had health insurance at the time of the incident could only introduce the amount paid by health insurance as evidence of the reasonable value of past medical expenses.  What that decision left open is whether or not a plaintiff should be limited to introducing evidence of health insurance paid amounts for purposes of arguing the value of future medical services or non-economic damages (pain and suffering).  These issues were addressed in the Corembaum case.

Background of Corenbaum Decision Regarding Evidence in Personal Injury Trials in California

The plaintiffs in Corenbaum were two passengers in a taxicab in Los Angeles when they were involved in a motor vehicle accident where the driver (who was under the influence of alcohol at the time) hit the cab and then fled the scene. They brought civil claims for damages against the at fault driver and took the case to a jury trial.   Prior to trial the plaintiff moved to exclude any evidence of health insurance payments for any of the medical costs incurred as a result of the traffic collision.  As was customary prior to the Howell decision, the defendant moved to hold a post-trial motion to reduce the amounts awarded to plaintiffs based upon actual amounts paid by insurance rather than the amounts billed by the health care provider.  The court granted both motions and allowed the plaintiff to introduce the actual amounts billed for all medical services provided to them as a result of the incident.  The jury awarded one plaintiff $1,834,602.00 and the other $1,392,141, in combined damages for past medical expenses, future medical expenses and pain and suffering.  The post trial motion to reduce was held and the award was knocked down to $1,537,985.00 and $1,108,362.00 respectively based upon the difference between what was billed by the health care providers and what was ultimately paid by health insurance for the past medical expenses.

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planes, trains, automobilesThe National Transportation Safety Board (NTSB) has just released its “Most Wanted” list, which reflects what it feels should be priorities for transportation safety in the U.S. moving forward into 2014.  These priorities are all well in line with what I see as transportation safety needs for California as well.  They include the following:

  1. Subways, Commuter and Light Rails: The report indicates that there are still active, pending investigations of rail crashes causing injury or death in various light rail incidents across the U.S. including incidents involving Bay Area Rapid Transit (BART) in the San Francisco Bay Area.  As cities in California including Los Angeles and San Diego continue to develop more light rail projects such as the Metro Lines in L.A. or the San Diego Trolley system, there will inevitably be light rail crashes that prompt calls for further safety measures in the Golden State.  Los Angeles intends to extend their subway system further into West Los Angeles / Santa Monica and the San Fernando Valley, for instance and increased ridership will, no doubt result in some additional mishaps.  The key is determining cause in these incidents and trying to use this information to improve railway safety by modifying equipment and / or operational practices.
  2. Helicopter Operations: The NTSB article points out that helicopter traffic continues to increase especially in urban areas as more and more copters are being used for various purposes like law enforcement support, news gathering, medical services, and transportation.  Between 2003 and 2013, there were 1,470 helicopter crashes nationwide, which resulted in 477 deaths and 274 serious injuries.  Urban areas of California like Los Angeles have seen an increase in aviation traffic including helicopters and will no doubt need to heed the call for further safety to prevent such mishaps here in CA.
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