Personal Injury

California Court Holds Employee’s Negligence Claim Against Employer Barred by Workers’ Compensation Act

July 5, 2016 | Sharifi Firm, APC

Recently, a California Court of Appeal addressed the issue of whether the California Workers’ Compensation Act barred a negligence claim brought by an injured employee against his employer for negligence. In this opinion, the appellate court looked at whether the claim arose out of and in the course of employment, and it stated that the degree of negligence on behalf of the employer did not affect a determination of whether the exclusivity provision applied.

Paul Friend worked as a tow truck driver for GBWY and alleged that he suffered injuries at work when a metal folding chair he was sitting on collapsed underneath him. Mr. Friend claimed that the negligence of defendants William Kang and GBWY Investment Group caused his injury. The defendants moved for summary judgment on the ground that workers’ compensation was Mr. Friend’s exclusive remedy. The trial court granted summary judgment and dismissed the claim.

Mr. Friend appealed on the ground that summary judgment was improper because there was a factual dispute as to whether the defendants were in fact Mr. Friend’s employer, and whether Mr. Kang owned the chair that caused his injury. When the defendants moved for summary judgment, they had the burden of proving that one or more elements of negligence could not be established, or there was a complete defense to the negligence claim. The burden then shifted to Mr. Friend to show a triable issue of fact regarding the negligence claim.

California Court of Appeals Rejects Sanctions Against Defendant in Personal Injury Lawsuit Because Second Summary Judgment Motion was not “Objectively Unreasonable”

June 27, 2016 | Sharifi Firm, APC

Recently, the California Court of Appeal addressed the issue of monetary sanctions in a personal injury lawsuit involving allegations of negligence against multiple defendants.. One defendant moved for summary judgment, and after the plaintiff amended his complaint, the defendant moved again for summary judgment. The lower court found the motions duplicative and awarded sanctions to the plaintiff. But on appeal, the court found that the filing was not objectively unreasonable and reversed the award of sanctions.

Adam Martinez sued Southern California Edison and other “Doe” defendants on the grounds that their negligence contributed to his injuries when a metal pole on a ladder contacted Edison’s power lines. Later, Mr. Martinez named Edison’s vegetation-maintenance contractor, Asplundh Tree Expert Company, as Doe 1. Asplundh denied liability and moved for summary judgment.

Mr. Martinez amended his complaint but failed to name Asplundh. Asplundh contended it did not owe a duty of care to keep the public or Mr. Martinez safe from power lines, and his injuries were caused by his own negligence when he placed a 19-foot metal tent pole in contact with a power line. The trial court denied Asplundh’s summary judgment motion, finding there were triable material issues of fact regarding the extent of Asplundh’s responsibility.

California Court Holds Primary Assumption of Risk Bars Negligence Claim in Recreational Swimming Pool Accident Lawsuit Because Swimming Presents Inherent Risk of Drowning and Injury

June 23, 2016 | Sharifi Firm, APC

Recently, the California Court of Appeal reviewed a grant of summary judgment in favor of a community college after a recreational swimming student brought a lawsuit against the college for negligence related to an incident that occurred when he was swimming recreationally at the college pool. In this opinion, the appellate court found that the facts as presented to the trial court supported a grant of summary judgment in favor of the defendants. The plaintiff assumed the risk of drowning when he chose to swim recreationally, and the swim coach and the lifeguard were not liable.

Mr. Lee alleged that the District, the swim coach, and the lifeguard were negligent by failing to properly supervisor or monitor Mr. Lee’s swim class, when he nearly drowned. Asserting the doctrine of primary assumption of risk, the defendants contended that Mr. Lee’s cause of action for negligence could not stand.

Mr. Lee was 19 years old when the incident occurred, and when he enrolled in swim instruction he did not know how to swim. During class, the coach instructed students in how to swim and float through breathing techniques employed during freestyle swimming. At the time of the incident, Mr. Lee was allowed to lap swim and enter the deep end of the pool.

California Appellate Court Affirms Judgment in Favor of Town When Plaintiffs Failed to Create Triable Issue of Fact Regarding Dangerous Condition of Property

June 20, 2016 | Sharifi Firm, APC

Recently, the California Court of Appeal reviewed a judgment in favor of the Town of Moraga in a premises liability case. In this opinion, the court addressed the plaintiffs’ claims that the Town had maintained a dangerous condition of public property related to a barricade near a street parade for the Fourth of July. Ultimately, the court rejected the plaintiffs’ allegations and affirmed the lower court’s grant of summary judgment.

On appeal, the court stated that Government Claims Act, Section 835, sets forth conditions that may hold a public entity liable for injuries. Public entities can be liable if the property was in a dangerous condition at the time of the injury, the injury was caused by the condition, and the kind of injury was a reasonably foreseeable result of the dangerous condition. Public property is in a dangerous condition according to the Act when it is physically damaged, deteriorated, or defective in a way that endangers those using the property.

On July 4, 2010, plaintiffs Kathleen and Benjamin Bjornstad left their home in the Town of Moraga, California, to watch fireworks at a display. Stephen Holbrook drove his mobility scooter while the others walked, since Stephen has been unable to walk since the mid-1990s. They took the same route they had traveled for more than 10 years on their way to the fireworks display.

California Court of Appeal Holds that Maintaining Overflow Parking Lot Across Street From Church and Directing Invitees to Park in Lot Exposed Church Invitees to Risk of Harm Crossing Street

June 16, 2016 | Sharifi Firm, APC

In a recent case before the California Court of Appeal, the court addressed whether a church exposed invitees to an unreasonable risk of injury when it located an overflow parking lot across a busy street without a marked crosswalk or traffic signal. In this case, the court reviewed the order granting summary judgment in favor of the church on the ground that it did not owe a duty to the plaintiff under the circumstances. The court of appeals reversed the judgment in favor of the church, determining that the particular facts of this case, including the manner in which the church directed invitees to use the overflow lot, which they controlled, failed to show that it met its burden of showing a duty of care did not apply.

Grace Family Church (GFC) is located in Sacramento, on Marconi Avenue across from the Debbie Meyer Swim School. A five-lane road separates GFC from the school, and there is no marked crosswalk or traffic signal at the intersection of Marconi and Root Avenue, the nearest cross street. GFC had an agreement with the swim school to use the lot for overflow parking for church events.

On November 19, 2010, Aleksandr Vasilenko attended an event at GFC and was instructed by an attendant at the church to park across the street. Two attendants were on duty in the parking lot, and neither instructed drivers on where to park or how to cross Marconi Avenue.

California Court of Appeal Finds Riding a Skateboard Downhill for Thrills Prevents Recovery for Injuries and Fatality Resulting from Fall

June 6, 2016 | Sharifi Firm, APC

The California Court of Appeal recently reviewed whether a summary judgment in favor of certain defendants was appropriate due to a plaintiff’s primary assumption of risk. The court in this case examined whether the defendants owed a duty to the plaintiff’s son, who had been skateboarding downhill for fun when he was fatally injured.

Richard Bertsch was in Mammoth Lakes with his two sons, Brett and Mitchell, when a tragic accident took place. Brett and Mitchell were skateboarding, without helmets, and traveling downhill at a speed that Mitchell called “pretty fast.” They had climbed up a hill for the purpose of then cruising downhill on their boards. While traveling downhill on the wrong side of the street, the front wheels of Brett’s skateboard stopped when they hit a gap in the road, ejecting Brett from the board. Brett’s head struck the pavement as he hit the ground, causing a traumatic brain injury and resulting in his death.

California Appellate Court Affirms Summary Judgment in Favor of Insurers When Underlying Intentional Harm is Excluded by Insurance Coverage

May 26, 2016 | Sharifi Firm, APC

In a recent opinion, the California Court of Appeal addressed whether an insurance company had a duty to defend their insured in an underlying personal injury lawsuit. Many liability policies have clauses that exclude insurance coverage for harm that is not caused in an “accident.” In other words, insurers limit liability for intentional harm. The court in this case analyzed whether the policies provided coverage for injuries suffered by a plaintiff who alleged his harm resulted from both intentional and negligent conduct.Plaintiff Christopher Miazga was injured by Giancarlo Romano, the insured of a policy issued by Mid Century Insurance Company and Fire Insurance Exchange. While Mr. Miazga was inside the home of Johnny Sebetic and his estranged wife, being intimate, both Mr. Sebetic and Mr. Romano walked in on them.

California Court of Appeal Finds Viable Theories of Liability in Lawsuit Involving Unsupervised Student Injury and Reverses Summary Judgment Granted in Favor of School District

May 23, 2016 | Sharifi Firm, APC

In a case involving claims of negligence and negligent supervision, the California Court of Appeal reversed the lower court’s finding that a student assumed the risk of injury by break dancing in a classroom. The teacher in this case had violated school policy by leaving students unsupervised in his classroom. At issue on appeal was whether there were viable theories of liability, since the school did in fact owe a duty to the injured student, and he had not assumed the risk of injury inherent in the activity.

Plaintiff Uriel Jiminez was a 14-year-old student at a middle school within Roseville City School District (“School”). He was injured while break dancing in an unsupervised room. The teacher had not thought it necessary to inform the school he had opened his class for early morning activity, and he did not think it necessary to supervise the children at all times.

California Appellate Court Reverses Dismissal of Injury Lawsuit Because Plaintiff’s Failure to Cooperate with Discovery Was Not Shown to be Willful

May 19, 2016 | Sharifi Firm, APC

In a recent opinion by a California Court of Appeal, the issue was whether the lower court properly dismissed a plaintiff’s claims when the plaintiff did not fully cooperate with discovery requests in litigation proceedings. The court stated that terminating sanctions and dismissal are appropriate in certain circumstances, but dismissal is a last resort. In the case at hand, the court also considered the fact that dismissal left the defendant in a better position than he would have been in had the plaintiff responded to the discovery in a manner favorable to the defendant.

Plaintiff James Patton brought a lawsuit against Donald Martins, based on an incident that took place on April 16, 2011 when Mr. Patton was working as a security guard for a gated community. Mr. Patton alleged that Mr. Martins, an electrical contractor, arrived at the community in his work truck and drove the wrong way through the gate. After Mr. Patton instructed Mr. Martins to turn around and reenter, an argument ensued, and Mr. Martins opened the driver’s side door to his truck violently, knocking Mr. Patton to the ground. Mr. Patton suffered injuries, and witnesses said that Mr. Martins then drove away in his truck, running over Mr. Patton’s left leg as he did so.

Mr. Martins was arrested, and Mr. Patton filed a complaint alleging he suffered injuries, including psychiatric injuries, as a result of being pushed to the ground and run over by Mr. Martins’ truck. Mr. Martins’ counsel made a demand for two separate psychiatric independent medical examinations (IMEs). Mr. Patton did not appear for either scheduled exam. Then, Mr. Patton’s counsel moved to withdraw.

California Supreme Court Reviews Statute of Limitations in Medical Malpractice Case

May 16, 2016 | Sharifi Firm, APC

Recently, the California Supreme Court addressed the statute of limitations for a personal injury action alleging professional negligence against health care providers. Unlike most personal injury actions, which must be filed within two years of the date of the underlying act or omission, professional negligence actions must be brought within three years after the date of the injury or one year after the plaintiff discovers the injury, whichever is first. In the case before the Supreme Court, the issue was whether the special limitations governed the plaintiff’s claims against a hospital. On March 5, 2009, plaintiff Catherine Flores, a patient at Presbyterian Intercommunity Hospital (PIH) in Whittier, suffered injuries when one of the rails on her hospital bed collapsed. She was trying to get up from her hospital bed, and as the rail collapsed, she fell to the floor. Her doctor had ordered the rail to be up after conducting an assessment of her medical conditions. Ms. Flores sued the hospital for negligently failing to inspect and maintain the equipment. Her claim was filed just under two years after the date of the underlying incident, March 2, 2011.

PIH demurred to the complaint, arguing that the complaint was governed by California Civil Procedure Code section 340.5 for lawsuits alleging professional negligence and was therefore untimely. Ms. Flores contended that PIH’s negligence was ordinary, not professional. She claimed her complaint was subject to the standard two-year limitations period for personal injury actions. The trial court agreed with PIH and sustained the demurrer.