big rigAn appeal involving allegations of juror misconduct came before the California Court of Appeal for the Second District. In an unpublished opinion, the court focused on the presumption of prejudice upon a showing of juror misconduct and the fact it can be overcome by evidence. The court stated that juror misconduct is one ground for granting a new trial, and a three-step process is required to assess whether a new trial is appropriate.  First, the court determines whether the affidavits supporting the motion are admissible. Next, the court assesses whether the facts establish juror misconduct. Finally, if there was misconduct, the trial court must determine whether prejudice resulted from the misconduct.

In the underlying incident, the plaintiff suffered injuries in a truck collision when the defendant’s semi-truck rear-ended the plaintiff’s semi-truck.  Liability was not disputed, but the nature and extent of the plaintiff’s injuries were at issue.  After a jury trial, a verdict awarded the plaintiff $241,473 in damages.  The defendant argued that there was juror misconduct and that as a result he had been denied a fair trial. He contended that there was insufficient evidence to support the damages award.

Continue reading

Domestic exposure to asbestos takes place when workers come into contact with a toxin and carry it home on their clothing, resulting in a person or a family member suffering exposure due to their proximity with the worker (or their clothing).  Two lawsuits involving personal injury and wrongful death actions were consolidated by the California Supreme Court in an opinion that addressed whether the decedents’ employers had a duty to family members and those who share thefactoryir household to prevent their exposure to asbestos.

The trial and appellate courts had evaluated whether there was a duty to prevent the exposure of asbestos to non-employees who had not visited the employers’ facilities, reaching different conclusions. Mesothelioma is associated with asbestos exposure and is a form of chest and abdomen cancer.  The plaintiffs contended there had been a risk of harm created through the use of asbestos-containing products, and household members were exposed to this harm.  The Supreme Court ultimately granted review and consolidated the cases to determine whether an employer has a duty to prevent take-home asbestos exposure to an employee’s household members under a negligence or premises liability theory.

Continue reading

In an appeal involving procedural issues central to the claims of injured workers, a California Court of Appeal addressed whether there had been a final order and whether an employer could seek review of a deniacourthousel of a petition to remove and reconsider. The court reiterated that writs of review may only be sought from final orders or decisions of the appeals board.

The injured employee in this case alleged that he suffered an industrial injury and filed a workers’ compensation claim. After a medical report was circulated, his employer, Capital Builders Hardware, Inc., argued the report was inadmissible and requested that it be stricken. The workers’ compensation judge denied Capital’s motions, and Capital appealed the decision to the Workers’ Compensation Appeals Board. The board dismissed and denied the petition for removal and the petition for reconsideration.

Continue reading

In a recent unpublished opinion regarding an underlying premises liability lawsuit, the California Court of Appeal upheld a judgment in favor of a Southern California supermarket chain after the plaintiff alleged a defective floor caused her to slip and fall and suffer injuries. The court reviewed the evidence presented before the trial court, relying on the rule ogrocery storef law that states that property owners are not responsible for defects that are deemed “trivial” as a matter of law.  In this lawsuit, the plaintiff had not shown the defect to be material, and her opposition to the defendant supermarket’s motion for summary judgment did not create a triable issue of material fact.

The plaintiff brought a lawsuit against Hughes Markets, Inc. dba Ralphs. She alleged premises liability and negligence. Ralphs moved for summary judgment, which was granted by the trial court. The plaintiff appealed.

The facts indicated that while the plaintiff was exiting a Ralphs Store in Sherman Oaks, she slipped and fell.  She filed this complaint and contended that the floor was uneven and defective. In their summary judgment motion, Ralphs argued the floor defect was trivial as a matter of law. They supported their motion with a declaration of the former store manager, who had inspected and measured the floor.  The plaintiff relied on a declaration by a civil engineer in support of her opposition to summary judgment. Ralphs alleged that they could not be found liable because there was no condition that created a substantial risk of injury. They argued that the floor defect was trivial.

Continue reading

The California Court of Appeal, Second District, recently addressed the issue of whether an exception applied to the general rule that an independent contractor cannot recover tort damages for work-related injuries from their hirer. In this case, the court found that the employee had not presented evidence that his hirer contributed to his injuries. The court found there were no triable issues of matconstruction workererial fact regarding his theory that the retained control exception or nondelegable duty exception applied.

Al Khosh worked for Myers Power Products, Inc., a subcontractor for an electrical project at California State University Channel Islands. Mr. Khosh was injured during the course of his employment and sued the general contractor, Staples Construction, for negligence.

Continue reading

In a recent case before the Second Appellate District, the California Court of Appeal addressed whether an award of punitive damages comported with due process following a life iwheelchairnsurance company’s alleged fraud and intentional conduct toward a disabled veteran.  At issue was whether the punitive damages award must be limited to no more than 10 times the compensatory damages award. The appellate court looked at the factors that determine an award of punitive damages, upholding a constitutional limit of 10:1 for punitive to compensatory damages awards.

Mr. Nickerson served in the United States Marines and was entitled to care at the Veterans Administration hospitals, with expenses paid. In 1997, Mr. Nickerson was involved in a snowmobile accident and as a result was paralyzed from the chest down. At the time of the incident, he relied on a wheelchair and was single, working as a live-in caretaker for other veterans. In exchange, he received free rent. He had a very small military pension.

While sitting in a motorized wheelchair, on a lift, waiting to be lowered from his van, Mr. Nickerson accidentally hit the control and lurched forward. He fell to the pavement, breaking his leg.  He was taken to a VA Hospital in Long Beach and treated by Dr. Hung Nguyen. Mr. Nickerson remained at the hospital for 109 days.

Continue reading

In an unpublished opinion, the California Court of Appeal recently held in favor of the Regents of the University of California in an underlying personal injury lawsuit brought by a student who was seriously injured while riding his bike across campus. At issue in this appeal was whether the trial court had properly responded to a jury question concerning a definition central to the legal claim in this case. The appellate court rejected this claim of instructional error proposed by the student, stating that the language used by the trial court clarified and was based on the actual language of Government Code Section 835, the basis of the plaintiff’s legal claim.

bicycle on campus

Geoffrey Chen, a student at University of California, Irvine (“UCI”), was biking across campus when he rode across a grassy slope next to a bicycle pathway. He had used the shortcut before, without issue, and seen others using it as well.

On that particular day, Mr. Chen’s bicycle rode over a retaining wall that had been obscured by vegetation. After being thrown from his bicycle, Mr. Chen landed on his head on a drain cover that sat at a catch basin below the retaining wall.  Due to the fall, Mr. Chen suffered an injury to his spinal cord and remains paralyzed from the chest down.

Continue reading

In a recent opinion, the California Court of Appeals upheld summary judgment in favor of a fitness center following allegations of gross negligence after an individual slipped and fell in the shower facilities. The court heldshower there were no genuine issues of material fact, and the Release and Waiver of Liability and Indemnity was valid and a complete defense to the negligence cause of action that was alleged in the first amended complaint.

Plaintiff Kirk Anderson, in his early 60s, signed a membership agreement at L.A. Fitness, a health club in Glendale.  The language of the agreement included a release and waiver of liability and indemnity.  He suffered injuries at the health club when he went to shower and slipped and fell on the floor, eventually requiring surgery to repair his humerus.

Continue reading

In an unpublished opinion, the California Court of Appeal analyzed whether a motion for summary judgment was properly granted in favor of the City of Inglewood in a premises liability lawsuit brought on behalf of a minor injured on a playset swing.   The issue before the court was whether the City had met its burden of proof on summary judgment, setting forth facts that negated the claim that a dangeroswingsetus condition existed and that the City knew or should have known of its existence and failed to correct or remedy the situation.

Lilah Belser, 12 years old at the time, had been playing on a swing in a park in Inglewood. She moved to dismount, but her finger remained caught inside a link of the swing and was partially amputated. Through a guardian ad litem, Ms. Belser filed a claim for damages against the City of Inglewood, alleging the chain link openings were too big for use by minor children. She then filed a premises liability lawsuit on the ground that the size of the openings constituted a dangerous condition in violation of Government Code Section 835.

The City moved for summary judgment. The trial court granted the motion, finding that the City met its burden of showing the swing set did not constitute a dangerous condition.  The court also held that the declaration of Ms. Belzer’s expert did not create a triable issue of material fact. The court entered judgment in favor of the City, finding the City did not have actual or constructive notice that the swings were in a dangerous condition, since there had not been other complaints. Ms. Belser appealed.

Continue reading

The California Court of Appeal recently addressed the issue of whether an employer can be held liable for injuries caused by an employee under the doctrine of respondeat superior.  In this unpublished opinion, the court assessed whether the going and coming rule applied to an employee who provided two other employees a ride to their employer-paid hotel and caused a traffic accident as they were driving home from work.

oil rigs

The trial court in this case applied the going and coming rule after the employer moved for summary judgment and the plaintiff moved for summary adjudication.  The court had focused on the facts that the employees were responsible for arranging and paying for their transportation from the employer-provided hotel to the job site, the employer had not required employees to rideshare or carpool, and the employer did not benefit, even incidentally, from the ridesharing arrangement of the employees.

The employer in this case was Helmerich & Payne International Drilling Co. (H&P), a company that operates oil drilling rigs, including those in Kern County.  Employees work a shift, called a “hitch” for the drilling rigs, which is a 12-hour day for 14 days, followed by 14 days off. The defendant employer provides hotel arrangements, should the employees want to stay close to the drilling site.  Employees are responsible for paying for their transportation to and from the hotel and the job site.

Continue reading

Contact Information