Personal Injury

California Court Reverses Lower Court Judgment in Favor of Towing Company after Plaintiff Severely Injured in Freeway Shoulder Accident and Genuine Issues of Fact Remained

January 23, 2017 | Sharifi Firm, APC

The California Court of Appeal recently issued an unpublished opinion setting forth the elements of a negligence claim in order to assess whether summary judgment had been properly granted in favor of the defendant tow truck company. The pertinent facts of this case center on whether the towing company had breached its duty of care to the plaintiff and whether its conduct substantially caused his underlying injuries. The court of appeals analyzed the evidence, finding there were triable issues of fact preventing the grant of summary judgment in favor of the towing company.

On a rainy morning, in rush hour traffic, the plaintiff’s truck hydroplaned and crashed into a median barrier on the highway. He was uninjured, and his truck was safely towed to the right shoulder of the road by a tow truck company, assisted by the California Highway Patrol. The tow truck operated under the Freeway Safety Patrol Service (FSP) program. While waiting for another tow truck to tow the plaintiff’s truck off the freeway, standing near the rear of his vehicle, the plaintiff was struck by another vehicle, caused by the driver’s loss of control due to weather conditions. The plaintiff suffered serious harm, including the loss of his left leg below the knee, a broken pelvis, and other injuries.

The plaintiff brought a lawsuit against the driver, the CHP, Caltrans, and fictitious parties, and he amended his complaint to name the initial towing company. He alleged that the CHP and its agents had been negligent because it was foreseeable that another car would hydroplane and cause another accident. He also alleged that he was owed a reasonable duty of care not to be exposed to an unreasonable risk of injury, and leaving him on the shoulder of the road rather than towing him to safety breached that duty.

Appeals Court Holds California Law Governs in Tragic Tour Bus Rollover Accident, Noting California Product Liability Law More Favorable to Plaintiffs

January 19, 2017 | Sharifi Firm, APC

The California Court of Appeals recently issued an opinion in favor of plaintiffs pursuing damages following a motor vehicle crash. The choice of law issue in this case centered on whether a California tour bus dealership was subject to Indiana law, the location of the tour bus manufacturer, or California law. Noting that product liability law is more “plaintiff-friendly” in California, the court applied the governmental interest test and ultimately held that California law should apply.

Following a catastrophic California tour bus accident, the surviving victims and family members of the deceased victims filed a lawsuit for damages against the tour bus distributor, as well as the manufacturer and driver. The plaintiffs, 10 Chinese nationals visiting the United States on holiday, alleged strict liability, negligence, wrongful death, loss of consortium, and negligent infliction of emotional distress. The accident took place on a trip from Las Vegas to the Grand Canyon.

Legally, there was no dispute about causation, since the driver had taken a turn at a high speed, lost control of the bus, and rolled it twice. Since the driver and tour guide had been wearing seat belts, they were virtually unharmed in the crash. None of the passengers had seat belts, some were ejected from the bus, and all suffered serious injuries. Two were fatally wounded.

Lessee of Vehicle Cannot Recover Compensation for Diminished Value of Car After Accident, According to California Court

January 12, 2017 | Sharifi Firm, APC

The California Court of Appeal, Fourth Appellate District recently issued an unpublished opinion in an appeal taken from a personal injury case following a car accident involving a leased vehicle. The issue before the court was whether the individual who had leased the vehicle (a “lessee”) could recover damages for the “diminished value” of the car following an accident. In this particular situation, the car had been repaired to its original condition, and when the lessee returned the car to the lessor, there were no charges assessed as a result of the accident.

The plaintiff entered into a lease with BMW Financial Services (BFS) for a 2012 model valued at $58,813.34 for 36 months. He was required to return the car to its “pre-damage condition” in the event of an accident. Months later, the defendant and he were involved in an accident, and the leased vehicle was damaged. According to the terms set forth in the lease, the vehicle underwent repairs at a certified BMW repair facility. The defendant’s insurer paid approximately $24,000 for repairs, and the plaintiff continued to drive the vehicle.

The plaintiff then filed a complaint against the defendant, alleging personal injury and property damage. The plaintiff was suing for the loss of the diminished value of the vehicle, in an amount of more than $33,000. Before trial, the defendant moved to exclude evidence on diminished value because the plaintiff had no standing to pursue these damages, since he did not own the vehicle, the vehicle had been returned to pre-accident condition, and the plaintiff was not liable to BFS for any damages or diminished value.

California Court of Appeal Holds Contractor Not Liable for Plaintiff’s Injuries Under “Completed and Accepted Doctrine”

January 9, 2017 | Sharifi Firm, APC

In a recent unpublished opinion, the California Court of Appeal addressed whether a contractor could be held liable for injuries to an individual after the completion of their work. The lower court had granted the defendant contractor’s summary judgment motion, based on the affirmative defense of the “completed and accepted” doctrine, dismissing the plaintiff’s negligence and fraud action. This doctrine holds that once an owner has accepted the sufficiency of work performed by a contractor, that contractor can no longer be held liable to third parties for resulting injuries.

The plaintiff worked for Keogh Electric Corp. (“KEC”) as a foreman on a project to erect a distribution panel that sat atop an elevated concrete pad and would serve as a new metal shredder at Kramar’s Iron & Metal, Inc. (“Kramar’s”). In August 2012, the panel and pad were installed at Kramar’s. The plaintiff texted Douglas Keogh that “Kramar is done” on August 25, 2012, and later testified that this meant that KEC’s work on that project had been completed.

The plaintiff then accepted a job at Kramar’s. He did not see anyone from KEC performing more work at Kramar’s, nor did he see anyone request that more work be performed on the electrical distribution panel. Kramar paid KEC in full for the work.

California Court Holds in Favor of City of Los Angeles Because Plaintiff Had Not Shown City Knew of Allegedly Defective Sidewalk that Caused Injuries

January 5, 2017 | Sharifi Firm, APC

The California Court of Appeal, Second District, affirmed a verdict in favor of the City of Los Angeles after an injured individual alleged the City had been negligent and was liable for injuries sustained while walking on a public sidewalk on West 89th Street. Turning to the notice requirement set forth in Government Code section 835, the court in this opinion assessed whether the plaintiff had been prejudiced by the trial court’s exclusion of certain testimony concerning the uplift in a sidewalk that constituted an allegedly dangerous condition. The court found the testimony that had been excluded was irrelevant to proving constructive notice, and it upheld the jury’s verdict in favor of the City.

The plaintiff in this case hurt her foot while walking on the sidewalk when, allegedly, the roots of a tree next to the sidewalk created a crack that uplifted a section several inches, causing her to hit her foot on this “uplift.” Within a year of the date of the accident, the plaintiff brought a tort claim against the City, alleging a dangerous condition of the sidewalk led to her injury.

California Law Makes it Illegal to Hold Cell Phone While Driving

January 2, 2017 | Sharifi Firm, APC

As of January 1, 2017, drivers throughout California are prohibited from driving and holding their cell phones. The bill, AB 1785, was signed by Governor Jerry Brown in September. According to the law, drivers are prohibited from holding a cell phone and operating their vehicle for any reason, including texting, talking, and checking maps.

According to California Vehicle Code Section 23123.5, individuals may use their cell phone while driving if the phones are configured to be voice-operated and hands-free. The phone must be used in this manner while driving. In other words, driving while holding and operating a device is an offense.

California Court Affirms Judgment that Contractor’s Employee Cannot Recover Tort Damages from Contractor’s Hirer

December 26, 2016 | Sharifi Firm, APC

The California Court of Appeal recently issued an unpublished opinion in a case that posed the question of whether an injured worker had presented evidence sufficient to pursue a claim of vicarious negligence against the defendant, Amy’s Kitchen, Inc. Amy’s kitchen hired an independent contractor, who then hired the plaintiff. While installing industrial equipment at a manufacturing plant owned by Amy’s, the plaintiff suffered injuries when his finger was crushed.

While the plaintiff recovered worker’s compensation from the independent contractor that hired him, he sued Amy’s for negligence. The issue before the appellate court was whether the lower court had properly found no exception to the general rule that employees of independent contractors who are hurt in the workplace cannot sue the party that hired the contractor.

Jury Could Reasonably Find that Employee’s Psychological Injuries Resulted from Employer’s Decision to Stage Mock Robbery and Were Outside the Realm of the California Workers’ Compensation Exclusivity Rule

December 15, 2016 | Sharifi Firm, APC

In an unpublished opinion, a California Court of Appeal addressed whether workers’ compensation served as the exclusive remedy for an employee psychologically harmed by her participation in a staged mock robbery. She was not aware it had been a training exercise. On appeal, the issue was whether the jury had properly been given instructions about the workers’ compensation exclusivity rule.

The plaintiff employee of West Kern Water District worked as a cashier at the district’s office. While employees received some training on how to respond to a robbery, supervisors decided to test the response of employees to a staged robbery. As part of the mock robbery, one of the district managers entered the office in a mask and demanded money from the employee, saying he had a gun. The employee victim had not been notified of the mock robbery, and she handed over money. She underwent treatment for psychiatric harm. She brought a claim for assault and intentional infliction of emotional distress. A jury awarded her $360,000.

The trial court denied defendant West Kern Water District’s motion for judgment notwithstanding the verdict, but it granted their motion for a new trial on the ground that the jury had received an inappropriate instruction on the workers’ compensation exclusivity rule. The employee and the defendants appealed.

California Court of Appeal Holds Plaintiff Failed to Show California Restaurant Owner Had a Duty to Take Preventative Measures to Protect Against Third-Party Harm to Plaintiff

December 12, 2016 | Sharifi Firm, APC

The California Court of Appeal recently addressed whether the owner of a restaurant owed a duty to protect against harm caused by removing a snow grate. In this opinion, the court emphasized the balancing test of the foreseeability of harm against the burden imposed on a proprietor to protect against potential harm. In this case, the lower court had held the owner had no duty to take additional preventative measures, since third parties had not formerly removed the grate. The appellate court affirmed the judgment in favor of the restaurant, holding that the plaintiff had not shown the removal of the grate was reasonably foreseeable, and therefore, there was no triable issue regarding the owner’s duty to undertake preventative measures.

After falling through a snow grate that had been removed near the entrance and exit to a restaurant, the plaintiff in this case brought causes of action against the restaurant owner for negligence and premises liability. In his complaint, the plaintiff alleged the owner breached its duty to avoid harm to patrons. The complaint also alleged that it was reasonably foreseeable that third parties would engage in pranks, vandalism, or malicious conduct, unless the premises were secured, since the premises had a history of such misconduct.

The facts indicated that individuals congregated near the public door on the deck, removed the snow grate, and exposed the opening in the deck. This opening is where the plaintiff fell when he stepped out of the door, about nine seconds after the grate was removed. Security guards were on duty that evening, but they did not see the fall take place.

California Supreme Court Holds that Employers or Property Owners Have Duty to Prevent Foreseeable Harm of Asbestos Exposure to Members of a Worker’s Household

December 5, 2016 | Sharifi Firm, APC

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 their 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.