Personal Injury

California Premises Liability Case Dismissed on Appeal for Failing to Raise Alternative Theory of Liability at Trial

October 9, 2017 | Sharifi Firm, APC

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.

The 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.

California Appellate Court Denies Defense Discovery Request in Workplace Accident Lawsuit

October 2, 2017 | Sharifi Firm, APC

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.

The 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.

California Court Reverses Summary Judgment in Favor of Employer When Inference Could be Drawn that Employee Was Within Scope of Employment at Time Plaintiff was Injured

September 28, 2017 | Sharifi Firm, APC

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.

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.

California Court Holds Surviving Family Members Failed to Establish Triable Issues of Material Fact Overcoming Summary Judgment for Employer in Deadly Vehicle Collision Lawsuit

September 25, 2017 | Sharifi Firm, APC

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.

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.

According to Court, Plaintiff Suffered Similar Harm in California Bus Accident Lawsuit Earlier Litigated, Bars Re-Litigation Claim in Separate Lawsuit

September 21, 2017 | Sharifi Firm, APC

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.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.

California Court Holds Plaintiff’s Claims Against the City of Los Angeles Following a Bicycle Accident Were Not Timely

September 18, 2017 | Sharifi Firm, APC

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.

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.

Fatally Injured California Worker’s Dying Declarations Should Have Been Admitted at Trial as Exception to Hearsay Exclusion

September 14, 2017 | Sharifi Firm, APC

Recently, the California Court of Appeal reversed a trial court judgment in favor of the defendants that had granted their motion for summary judgment on the plaintiffs’ negligence allegations. After a victim suffered injuries at work and eventually died, the relatives brought a negligence claim against his employer and another employee. On appeal, the court assessed whether the trial court had erred in finding there had not been a triable issue of material fact regarding the employer’s negligence. Specifically, the issue was whether the court had wrongly excluded dying declarations that the deceased made concerning details of his accident.

In their complaint, the plaintiffs alleged the employer negligently stacked and loaded potato pallets, since they operate a potato packing operation. This negligence caused a pallet to topple on and crush the deceased. When opposing the defendants’ motion for summary judgment, the plaintiffs contended that the potato boxes had not been properly wrapped together.

The plaintiffs submitted declarations, which provided the deceased’s version of facts as he told them to relatives while he was in the hospital. The defendants objected to the statements in the personal declarations as hearsay. The trial court analyzed whether the evidence supported the finding that the deceased had been relating facts concerning the cause of his death, rather than a hearsay account of another event, unrelated to his death. The court sustained the objections to the personal declarations and held there was no proof of negligence on the part of the defendants.

Court Holds Plaintiff was Injured by Defendant’s Breach of Duties Owed to the Public Under California Law

September 11, 2017 | Sharifi Firm, APC

In a California premises liability case involving whether the trial court properly applied the Medical Injury Compensation Act’s (MICRA) one-year statute of limitations for professional negligence, the appellate court held that it had been an error to apply the one-year statute of limitations for professional negligence. The court assessed whether the statute of limitations applied to bar her case, since the plaintiff argued that her injury was not caused by rendering professional services but in fact was caused by ordinary negligence.

The facts indicate that the plaintiff had been at a medical clinic, with the goal of reviewing test results with a nurse-practitioner. After her consult, the plaintiff left the treatment room in order to exit the building. She tripped on a scale that, she alleged, partly blocked the path from her room to the hall. As she tripped, she fell and suffered serious injuries.

The plaintiff’s complaint was filed nearly two years after the incident, and the health center alleged her injuries were caused by “a negligent act or omission in rendering professional services.” As a result, they contended she was subject to the one-year statute of limitations for professional negligence, and her complaint was time-barred.

California Court Holds No Error in Lower Court’s Judgment Dismissing Plaintiff’s Complaint After Motor Vehicle Collision Because Statute of Limitations Had Run

September 7, 2017 | Sharifi Firm, APC

After plaintiffs filed a personal injury complaint against a defendant for injuries sustained in a California car accident, the defendant demurred to the complaint on the ground that the statute of limitations had run. The lower court sustained the demurrer and entered judgment in favor of the defendant. On appeal, the plaintiffs argued that their attorney had shown an excusable error that justified relief against the statute of limitations bar. In the alternative, they requested a ruling that would toll the applicable limitations period.

An accident occurred on January 18, 2014, and the plaintiffs filed their complaint on February 16, 2016. In opposition to the defendant’s demurrer that stated that the statute of limitations had run, the plaintiffs filed an opposition on the day before the hearing. They argued that settlement negotiations had occurred, and there had been a delay in receiving medical records. Additionally, the plaintiffs’ attorney stated he had personal problems and had relied on staff personnel. While the plaintiffs argued these excuses qualified as “excusable neglect,” by law, the court sustained the demurrer for the plaintiffs’ failure to state facts sufficient to state a cause of action.

On appeal, the court stated that in the situation of a demurrer based on an affirmative defense, the court asks if the complaint makes clear the action is necessarily barred. Regarding the statute of limitations, there are policy considerations in favor of stopping tardy claims, while also disposing of claims on the merits.

California Court Affirms Judgment in Favor of Defendants After Finding Plaintiff Injured in Hot Air Balloon Had Not Shown Defendants Breached Duty of Care

September 4, 2017 | Sharifi Firm, APC

In a recent Southern California personal injury case before the Court of Appeal, the judgment in favor of the defendants was affirmed. The plaintiff in this case was injured when the basket carrying her in a hot air balloon crashed in Temecula wine country. On appeal, the court affirmed the lower court’s judgment in favor of the defendants, but on different grounds.

After the plaintiff asserted a negligence claim against the tour company, the pilot, and the company’s agent, the defendants moved for summary judgment. In her complaint, the plaintiff alleged she had been injured when the balloon crash-landed into a fence, and this was caused by negligent piloting and a failure to provide safety instructions. The defendants argued the plaintiff did not satisfy the elements of her negligence claim, and even if she had, she had waived the right to assert a claim by signing the liability waiver before the flight. The lower court found that the plaintiff had not established the element of duty and had assumed the risk of harm inherent in riding in a hot air balloon. The court determined that the company did not owe her a duty.

In their analysis, the lower court held that hot air ballooning is a risky activity and can involve crash landings. By voluntarily riding in the balloon, the plaintiff had assumed the risk of injury.