Articles Posted in Personal Injury

Earlier this month, an appellate court issued a written opinion in a California car accident case involving the allegedly negligent acts of an employee and whether his employer could be held liable for the wrongful death of the plaintiffs’ loved one. After discussing the doctrine of respondeat superior and applying it to the facts of the case, the court ultimately determined that the employer could not legally be responsible for the employee’s actions. Specifically, the court noted that the “going and coming” rule precluded liability because the employee was traveling to work when the accident occurred.

Golden Gate BridgeThe Facts of the Case

The plaintiffs were the surviving family members of a woman who was killed when the vehicle in which she was riding was struck by another driver while crossing the San Mateo Bridge. The other driver was employed by the defendant.

On the day of the accident, at around 3:30 a.m., the employee was driving to work in San Francisco when he struck the vehicle carrying the plaintiffs’ loved one. The employee worked the night shift, which began at 7 p.m., and it was undisputed that this trip to work was not for the employee’s regular shift.

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Earlier this month, an appellate court issued a written opinion in a California personal injury case brought by a man who was injured when the crane he was operating tipped over. The case presented the court with the opportunity to discuss the relation-back doctrine and its applicability to the facts at hand. Ultimately, the court concluded that the plaintiff’s late-filed certificate did not relate back to his original filing, and thus his case was barred by the statute of limitations.

CraneThe Certificate Requirement

In California, certain cases alleging professional negligence must be accompanied by a certificate from an expert in the field, indicating that in the expert’s opinion, the plaintiff’s case has merit. Alternatively, if there is not time to obtain this certificate before the statute of limitations expires, a party can submit a certificate of excuse asking for additional time. Under the relevant statute, a certificate of excuse must be filed within 60 days of the filing of the case.

The Facts of the Case

The plaintiff was injured when the crane he was operating tipped over. The date of the plaintiff’s injury was May 5, 2014. The plaintiff filed a negligence claim on May 3, 2016 against the company that was providing engineering services at the job site where the injury occurred. The relevant statute of limitations was two years, so the plaintiff filed the case just two days before the deadline.

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When someone is injured while playing sports or engaging in another recreational activity, the injured party may be able to seek financial compensation for their injuries against the responsible parties through a California personal injury lawsuit. However, the doctrine of assumption of the risk can act to bar some plaintiffs’ lawsuits when the activity at issue is inherently dangerous and comes with well-known risks.

Sand DunesThe idea behind the assumption of the risk doctrine is that plaintiffs are in the best position to avoid known risks associated with certain activities. If a plaintiff choses to disregard a known risk and engage in the activity nonetheless, courts will not hold a defendant liable when a plaintiff is injured due to the presence of a known risk. However, there are exceptions to the assumption of the risk doctrine, one of which is when the defendant creates an additional risk that is not normally present when engaging in the recreational activity.

A recent California personal injury case illustrates one plaintiff’s attempt to establish an exception to the general assumption of the risk rule. While the plaintiff was unsuccessful in convincing the court, the case is important in understanding the assumption of the risk doctrine.

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Over the past several years, significant evidence has come to light that there is likely a link between talc-based hygiene products and ovarian cancer. Indeed, manufacturing giant Johnson & Johnson is currently facing almost 5,000 lawsuits brought by women who have developed various types of cancer after years of consistent use of the company’s talc-based baby powder product.

Baby PowderIn fact, according to a recent news report, just a few months ago, a jury issued a substantial verdict in a California product liability lawsuit brought against Johnson & Johnson by a woman who claimed that she developed ovarian cancer after using Johnson & Johnson baby powder. The plaintiff’s claim was not just that Johnson & Johnson products caused her cancer, but also that the company failed to warn consumers about the risks that were known to the company. The verdict – totaling $417 million – consisted of $70 million in compensatory damages and an additional $37 million in punitive damages.

Prior Product Liability Cases Involving Talc-Based Baby Powder

The above-mentioned verdict is one of several that have recently been handed down finding Johnson & Johnson liable for failing to warn consumers of the dangers involved with the use of its baby powder products. Until this most recent verdict, the largest award amount was $110 million. The extent to which Johnson & Johnson will be liable in the nearly 5,000 pending cases remains to be seen.

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Earlier this year, the Court of Appeal for the Second Appellate District issued a written opinion in a California premises liability lawsuit discussing the rule of appellate procedure that any grounds cited on appeal must have been raised at trial. Ultimately, the court affirmed the lower court’s decision to dismiss the plaintiff’s case based on the fact that the plaintiff’s theory of liability on appeal (which was only slightly different from the theory of liability at trial) was not raised below.

Swimming PoolThe Facts of the Case

The plaintiff and his wife were looking to buy a rental property and were working with a realtor to help them in their search. The realtor had a home in mind that she thought the plaintiff would like. The home was one that the realtor had previously listed, and it had a pool in the backyard. Prior to listing the home, the realtor conducted a 30-minute visual check of the home, including the backyard and pool. The realtor also arranged for the pool to be emptied and contacted a pool maintenance company to conduct any necessary repairs.

When the plaintiff and his wife went to see the home, the plaintiff climbed atop the diving board that was adjacent to the pool to see over the home’s fence. After about 30 seconds, the plaintiff felt the diving board come loose from its base, and the plaintiff fell into the empty pool, resulting in serious injuries.

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Earlier this year, the California Court of Appeal for the Sixth District issued an interesting opinion in a California workplace accident case. The case presented the court with the opportunity to discuss the limitations that a defendant faces when seeking pre-trial discovery in a California personal injury case. Ultimately, the court concluded that the defendant’s requested discovery was beyond the scope of what was included under the relevant statute, and the request was rejected.

StanfordThe Facts of the Case

The plaintiff was a delivery driver who was scheduled to unload several packages at Stanford University. While he was unloading the packages, a car that had been parked by a Stanford employee rolled down a nearby hill and collided with the plaintiff. He sustained multiple fractures to his right femur and pelvis, and he underwent surgery as a result.

By the following year, the plaintiff had not returned to work and filed a personal injury lawsuit against several parties, including Stanford University, the owner of the vehicle that struck him, as well as the person who parked the vehicle. In a pre-trial motion, several of the defendants filed a motion seeking to compel the plaintiff to undergo a “vocational rehabilitation examination” conducted by one of the defendants’ expert witnesses.

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The California Court of Appeal recently reversed a summary judgment that had been granted in a California bicycle accident case alleging negligence and respondeat superior liability. The facts indicated that while the plaintiff was riding his bicycle, he collided with the door of the defendant’s personal vehicle when the defendant opened the door. The plaintiff brought a lawsuit against the defendant and his employer.  The employer moved for summary judgment on the ground that the going and coming rule barred the plaintiff’s claim.  Since the defendant employee did not have a fixed office location but commuted to work as a territory manager, he drove a rental vehicle. The employer argued that the rental vehicle was the employee’s “fixed place of business” and that his commute included going and coming to the rental vehicle.

bicycle
The lower court ruled the going and coming rule applied and granted summary judgment because the defendant had been in his personal vehicle when the accident occurred. On appeal, the plaintiff argued that the employer had not met its burden of production and that triable issues of material fact remained that defeated the grant of summary judgment.  The court stated that they would consider all of the evidence set forth in the papers to determine if a triable issue regarding a material fact remained.

First, the court stated that respondeat superior requires a plaintiff to prove that a tort was committed within the scope of employment. However, the court stated the going and coming rule makes clear that employees are not acting within the scope of employment when they are going to or coming from work.

Recently, the California Court of Appeal analyzed an appeal brought by plaintiffs in a California wrongful death case.  The plaintiffs included the daughter of a deceased motor vehicle accident victim, as well as the victim’s parents and fiance. In their complaint, the plaintiffs alleged that the defendant driver and the employer were legally at fault for the accident that caused the victim’s death.  They alleged they suffered injuries and damages due to the defendant driver when his vehicle struck the vehicle of the victim, resulting in her death. The plaintiffs brought claims for motor vehicle negligence and general negligence, as well as a survivorship action.  The plaintiffs’ claims against the employer were based on the doctrine of respondeat superior. The employer moved for summary judgment, and the trial court granted the motion, dismissing the employer from the case and leaving only the defendant driver. The plaintiffs appealed.fatal crash

On review, the appellate court stated that they view the evidence in a light favorable to the plaintiffs, since they oppose the summary judgment motion.  Here, the applicable law involves the legal doctrine of respondeat superior, which holds employers vicariously liable for the tortious conduct of employees within the scope of their employment.  According to California law, the “scope of employment” has been broadly interpreted.   Generally, those acts that involve the employee’s own business may remove them from the scope of employment unless it appears they could have served their employer.

An exception to the respondeat superior legal doctrine is the “going and coming” rule. According to this doctrine, employees who commute to work are not considered to be within the scope of employment. Their employer, therefore, is not liable for the employee’s torts.  However, according to the special errand exception, those employees who are performing an errand as part of their regular duties, or at the request of their employer, may be found to be within the scope of employment.  California law requires that errands be part of the employee’s regular duties, or undertaken at the request of the employer.

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The California Court of Appeal recently concluded that a plaintiff’s complaint against the San Diego Metropolitan Transit System and the San Diego Transit Corporation (MTS) was barred by the doctrine of res judicata.  This doctrine bars re-litigating the same cause of action between the same parties when there has been a final judgment on the merits. In this lawsuit, the court held that the plaintiff’s two California car accident lawsuits were based on the same primary right to be free from injuries associated with the bus system.

bus stop

The plaintiff in this case alleged that on April 14, 2012, an MTS bus driver negligently operated the bus and that this alleged negligence included letting the bus operate with defects in its video system.  She was injured when the bus pulled away from the bus stop as she was banging on the side window of the bus, attempting to get the attention of the bus driver.  That case went to trial, and the jury found in favor of MTS, so a final judgment was entered in favor of MTS. Then, the plaintiff filed another action, seeking relief for her injuries arising out of the April 2012 accident.  That complaint alleged that a dangerous condition of public property caused her injuries and that the location of the bus stop was a dangerous condition of public property because the bus drivers could not see prospective passengers.

In response, MTS filed a motion for summary judgment on the ground that the action was time-barred by the Government Claims Act filing requirement.  According to law, there is a two-year statute of limitations period for injuries under the Government Claims Act.  They argued that a delay due to the plaintiff’s failure to perform a diligent investigation does not delay the accrual of a cause of action.

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Nine months after an accident on a city-maintained road, the plaintiff brought a personal injury claim for damages against the City of Los Angeles.  The Court of Appeals recently affirmed an order set forth by the lower court in that case, dismissing the plaintiff’s Los Angles bicycle accident case and his request to file a late claim. The appellate court analyzed the evidence and found that the plaintiff had not complied with the filing requirements of Government Code section 946.6.  bicycle crash

On June 16, 2014, the plaintiff was struck by behind by a vehicle while biking on La Tuna Canyon Road. He suffered serious injuries and was in a coma for one month after the accident.   After investigations, the plaintiff’s attorney alleged that, among other things, the City was liable for improperly marked bicycle lanes, which were inadequately maintained.  The plaintiff also filed for a petition for an order that would relieve him from the claim filing requirements of section 946.6, on the ground that his failure to present the claims on time resulted from mistake, inadvertence, surprise, or excusable neglect.

The lower court denied the petition and held that the incident report provided to the plaintiff’s counsel was sufficient to identify the location of the accident.

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