Articles Posted in Personal Injury

In an unpublished opinion, the California Court of Appeal recently affirmed a judgment in favor of the City of Pasadena, after the trial court held that the plaintiff had not set forth evidence supporting his negligence claim, nor had he shown that he suffered damages, emotional distress, physical injuries, or property damage due to the underlying incident.  In the underlying case, the plaintiff had proceeded in pro per, meaning that he was not represented by legal counsel.

At issue before the appellate court was whether the appellant had presented an adequate record for review of his wrongful death action. The court of appeals stated that the burden is on the party that appeals the lower court judgment.  They must demonstrate an error, and in doing so, they must supply an adequate record for the reviewing court to assess the lower court’s actions.

The plaintiff in this case filed a wrongful death action, alleging that the City of Pasadena’s fire department paramedics negligently transported his son to an emergency room after his son suffered gunshot wounds by a third party.  The trial court eventually granted summary judgment in favor of the City after the City’s requests for admissions showed that the plaintiff admitted he did not have evidence supporting his allegation of negligence. Additionally, the requests for admissions showed that he had not suffered compensatory damages, emotional distress, physical injuries, or property damage due to the incident.  Judgment had been entered for the City.

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In a recent California appeal, a plaintiff in a personal injury lawsuit following a motor vehicle collision argued that the trial court should not have admitted certain portions of the defendant’s medical expert’s testimony.  Since the issues to be determined by the jury included negligence and causation, on appeal, the plaintiff argued that the jury verdict in favor of the defendant should be reversed. She contended the expert testified as to matters outside the scope of his expert designation, and that testimony should have been offered by an accident reconstruction expert.

At the trial level, the issue was whether the defendant’s negligence caused the plaintiff’s harm.  The facts showed that the defendant had been in his pickup truck, stopped about 10-12 feet behind the plaintiff’s car.  While reaching for an item in his cab, the defendant stated that his foot slipped off the brake, and his truck collided with the back of the plaintiff’s car.  At the time, there was minimal damage to the vehicles, and no emergency services or tow trucks were called. Both drivers separately drove away in their vehicles.

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In this recent opinion, the issue before the California Court of Appeal was whether a mobile home park owed a duty of care to prevent harm by a third party to residents of the park. The Court of Appeal addressed policy issues regarding extending a duty of care to the landlord in this case, and specifically, whether it was foreseeable that the individual in this case would inflict harm.

The facts indicated that two residents of the mobile park home suffered stabbing wounds by an individual who lived with his aunt but was not a resident of the park. One victim died, and their heirs, along with the surviving victim, filed a civil lawsuit against the mobile home park. The lower court held in favor of the mobile park home, finding that a knife attack had not been sufficiently foreseeable.

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The California Court of Appeals recently addressed whether a school was negligent by failing to supervise two students who fought on their way to high school, off school property. In this opinion, the court focused their analysis on duty and whether the school had undertaken a duty owed to the students. The appellate court concluded that Education Code section 44808 provided the school with immunity for injuries taking place off school property, and here there had not been a specific undertaking of responsibility. The school was not at fault.

Education Code section 44808 provides schools with immunity when students are injured off school property and under circumstances the school could not control.  The lower court held that foreseeability alone did not create a duty to supervise the students. The appellate court affirmed. After a verbal dispute in class, one of two high school students was sent home early to avoid further contact, and a notation was made to their class schedule, indicating that the two students could not be in class together.  On the following day, before school, the two students physically engaged, and one student alleged he was injured when struck by the other.

The allegedly injured student filed a complaint, naming the school district and the other student as defendants. The complaint alleged premises liability and negligence.  The school district moved for summary judgment, arguing that it was immune from liability under Education Code section 44808. The court ruled in its favor because the fight took place off school grounds, and the school had not undertaken supervision of the students off school property.  The plaintiff appealed.

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In an unpublished opinion, the California Court of Appeal affirmed a decision to refuse to recognize a child’s cause of action for loss of parental consortium.  Loss of consortium is a claim for damages asserted by a plaintiff, typically a spouse or family member.  The claim refers to the loss of emotional care, affection, and sex (spousal loss of consortium) suffered by a surviving family member. In some jurisdictions, courts recognize a child’s ability to bring a loss of consortium claim following the death of their parent. In this particular case, the appellate court turned to precedent, stating that the California Supreme Court had determined that there was no such cause of action.  Accordingly, the appellate court affirmed the judgment in favor of the defendant ambulance company.

The facts of the lawsuit indicate that the victim’s car collided with an off-duty ambulance, and the victim suffered a traumatic brain injury as well as other complications.  The victim’s infant daughter brought a lawsuit for loss of parental consortium against multiple defendants, including the driver of the ambulance and the ambulance company.   The defendants argued that a minor cannot bring a claim for loss of consortium suffered by a parent, and they demurred to the complaint.  The trial court sustained the demurrers and dismissed the minor’s complaint.

On appeal, the issue was whether California should reconsider a state Supreme Court case, Borer v. American Airlines, Inc., (1977) 19 Cal.3d 441, 444 (Borer).  In that case, a mother of nine children was injured by a falling light fixture in an airline terminal.  After the children sued the airline for loss of services, affection, and guidance, the California Supreme Court affirmed the lower court’s grant of the airline’s demurrer, without leave to amend.

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In a recent case before the California Court of Appeal, the court held that the lower court had appropriately ruled in favor of the defendant in a personal injury and property damage claim. In fact, the appellate court determined that the trial court had not erred in dismissing the plaintiff’s complaint for having committed misrepresentations to the court and for having attempted to commit fraud on the court by testifying falsely. The appellate court, in affirming this decision, noted the significance of the fact that on appeal, the plaintiff did not support his claims with legal evidence or authority.

The plaintiff in this case, a 73-year-old man, alleged that he suffered a bodily injury and property damage when a car driven by the defendant rear-ended his vehicle. The plaintiff represented himself in the trial court action. In summarizing the procedural history, the appellate court focused on the ways that the plaintiff had not cooperated fully with procedural requirements. For example, the court stated that the plaintiff had not provided expert witness information, nor had he truthfully testified as to his damages.  While the facts indicated that a low-speed, minor rear-end collision had occurred, defense counsel stated that the injuries that the plaintiff claimed to suffer were not consistent with the facts of the collision.

In fact, the trial court advised the plaintiff to work to demonstrate that he in fact was harmed and provide an estimate of cost for his treatment, as well as estimated costs for future claims for treatment. The defense asked the plaintiff for a statement of his medical charges (allegedly totaling $63,000), but the plaintiff could not provide these, although he stated there may be over 100 different bills.

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Addressing the legal doctrine of assumption of risk, a California Court of Appeal recently upheld the lower court’s determination that defendant relatives were not negligent concerning the skiing injuries suffered by the 13-year-old plaintiff, their cousin and nephew. In determining that summary judgment had been properly granted, since the plaintiff’s claims were barred under primary assumption of risk, the court found that the defendants had not increased the risks inherent in skiing.  The facts associated with the summary judgment motions made clear that the plaintiff, 13 years old, went skiing with his father, uncle, and cousin.  The plaintiff’s parents were divorced, and the plaintiff’s father had custody of him for winter break. While he had taken ski lessons before, he had not skied with his uncle or cousin, nor had he truly experienced skiing on lifts other than the bunny slopes.

The plaintiff’s uncle and cousin escorted him on an intermediate, “blue” slope, where he began to ski quickly, and his relatives lost sight of him. After skiing through a rope marking the outside edge of the turn, the plaintiff struck a padded signpost. He fractured his left leg in two places.

In his complaint for negligence, the plaintiff alleged the defendants (his father, uncle, and cousin) had a duty to protect him, supervise and warn him, and prevent him from injuring himself while skiing. He contended the defendants breached this duty. The plaintiff’s allegations of negligence stated he had limited skiing experience. Specifically, the plaintiff claimed their negligence stemmed from their failure to determine his ability to ski before taking him on a blue slope, as well as misrepresenting the difficulty and danger of the blue as compared to green slopes.

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The California Court of Appeal recently reviewed a decision in favor of the defense in a personal injury lawsuit involving injuries sustained on a bus owned and operated by the Metropolitan Transit System (MTS). Specifically, the issue was whether the lower court had appropriately excluded expert testimony concerning the rate of speed of a bus operated by the MTS that allegedly turned and caused the plaintiff’s injuries.

In motor vehicle collision lawsuits, expert opinions may be used to support an argument of liability.  For example, the accident reconstruction expert in this case set forth an opinion, based on security videos and GPS (global positioning software), that indicated the bus had been speeding above the mandated limit. The lower court had determined that the expert opinion was not sufficiently reliable and should not be allowed into evidence.

On review, the appellate court applied an abuse of discretion standard. According to the appellate court, the lower court provided the plaintiff with multiple opportunities to strengthen his opinion that the expert’s conclusion had been reached in a reliable and scientifically accepted manner, but the plaintiff did not do so. The remaining issues before the appellate court focused on the accuracy and reliability of the expert’s analysis.

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In an unpublished opinion, the California Court of Appeal analyzed the importance of carefully pleading causes of action.  In this case, the beneficiaries of life insurance policies sued the insurance company and its agent.  They claimed that it was negligence and a breach of contract to fail to provide policies that covered aviation activities. The insured had died in an aviation collision and had sought to provide benefits to his wife and business.  But the court here upheld the summary judgment in favor of the defendants, finding that the plaintiffs could not allege new facts and new legal theories in opposing a motion for summary judgment. Since they had not pled negligence per se, they could not overcome summary judgment by relying on this doctrine.

The decedent in this case had applied to an insurance company for two life insurance policies, specifically to cover the risk posed by his hobby of flying aircraft. After suffering a fatality in an aviation accident, his surviving spouse and business (both intended beneficiaries of the policies) brought a lawsuit against the insurance agent and the insurer.  Among other allegations, they claimed the agent and insurer had been negligent in failing to provide the plaintiff (the surviving spouse) with policies for aviation risk, as her husband had specifically requested.

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Following a tragic accident involving a vehicle undergoing repairs, a plaintiff in a personal injury lawsuit received a favorable judgment from the California Court of Appeal recently.  The appellate court reversed the lower court’s dismissal of his complaint based on a general release he had signed, immunizing the defendant from liability.  The court here concluded that the defendant was not in the protected group of persons, as the term was understood in the release.

The plaintiff in this case brought a lawsuit against an automobile repair shop and the owner for his injuries. He had been retained by the shop to assess why the vehicle would not start. After testing the electrical connection starter, the vehicle ran him over and dragged him through the parking lot of the automobile repair shop, crushing his spine. Earlier, the vehicle had been towed to the auto shop, and the transmission shift linkage had been disconnected in order to tow the vehicle.

After settling his lawsuit with the owner and shop for the $1,000,000 limit of the defendants’ insurance policy, the plaintiff signed a settlement that released the defendants, as well as the defendants’ “affiliates,” from liability.  Three months after settling the first action, the plaintiff brought this action against the defendant who owned the underlying property from which the owner of the auto repair shop leased the land. Significantly, the owner left vehicles on the property in order for the repair shop to sell them, and the vehicle that injured the plaintiff was one of his vehicles.  He sued the defendant for negligence and premises liability. The defendant moved for summary judgment, and it was granted on the basis that the defendant was an “affiliate” protected by the language in the release.

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