Personal Injury

California Court Denies Summary Judgment for Defendants When Plaintiff Shows Triable Issue of Fact Regarding Whether Train Operator was Employed by Defendants

February 9, 2017 | Sharifi Firm, APC

In a recent unpublished opinion, the California Court of Appeal reversed a judgment and remanded a case in which the defendants had been granted summary judgment on the issue of the negligent operation of a train by an employee. The defendants, two public entities, argued that the train engineer was an independent contractor and that they could not be vicariously liable for his actions.

On appeal, the court addressed whether there was a triable issue of material fact regarding the dual employment of the train operator. The appellate court also analyzed whether the plaintiff’s premises liability claim had been properly adjudicated in favor of the defendants.

California Appeals Court Upholds Rule that Insurance Agent Owed No Duty to Advise Plaintiffs to Purchase Excess Uninsured/Underinsured Motorist Insurance to Help Recover Costs from Son’s Accident

February 3, 2017 | Sharifi Firm, APC

In a recent unpublished opinion, the California Court of Appeals analyzed whether an auto insurance company had breached its duty of care to a husband and wife who believed they had purchased liability insurance for “everything,” including excess uninsured/underinsured motorist (UM) coverage. The issue was whether such a duty exists, under California law, and whether the insurance agency had negligently failed to disclose that the plaintiff’s policy did not have UM coverage.

The plaintiffs, the parents of a teenage boy struck and injured by an underinsured motorist, had purchased a personal umbrella policy through an insurance agency (the defendant). When the plaintiffs learned that they had personal liability coverage but no excess uninsured/underinsured motorist (UM) coverage, they filed a lawsuit against the defendant, alleging they negligently failed to disclose that their umbrella policy did not have UM coverage.

The plaintiffs’ allegation was that by failing to obtain a UM umbrella policy, the defendants deprived them of an additional million dollars of insurance benefits for their son’s accident. The trial court granted the defendant’s motion for summary judgment, finding no triable issue of material fact regarding whether the defendant breached its duty of care. The plaintiffs appealed.

California Appeal Court Upholds Judgment for Defendant Ambulance Services When Plaintiff Failed to Show Evidence that Alleged Delay in Transportation to Hospital Caused Resulting Injury

February 3, 2017 | Sharifi Firm, APC

The California Appeal Court, Fifth District, addressed the issue of causation in a personal injury action based on the alleged negligence of the ambulance crew in assessing and transporting the plaintiff to a hospital. The plaintiff had suffered a head injury while playing a high school football game, and the standby paramedic and the emergency medical technician (EMT) examined him. After the EMT completed an assessment, the plaintiff was transported to the hospital and diagnosed with a right-sided subdural hematoma. He underwent surgery to relieve a brain hemorrhage, and at some point, he suffered a stroke.

The plaintiff sued Kern County Emergency Medical Transportation Corporation (the defendant) and others for injuries. He alleged that the defendant was grossly negligent, which is the standard of care that applies to paramedics and EMTs under the Health and Safety Code. The plaintiff contended that in assessing him, the defendant did not recognize that he had sustained a traumatic brain injury, requiring immediate transport to a trauma center.

California Court Upholds Judgment in Favor of Golf Club Owner for Plaintiff’s Injuries from Stray Golf Ball while on Adjacent Trail

January 26, 2017 | Sharifi Firm, APC

The California Court of Appeal recently issued an unpublished opinion affirming the lower court’s judgment in favor of the owner and operator of a golf club after an individual walking near the club suffered injuries from a stray ball. The court assessed whether summary judgment was proper based on the tort immunity provided by the Government Code. Central to the appellate court’s decision was the holding that the trail’s location next to the golf course was an integral feature of the trail.

The owner of the club granted San Diego County public easements for unpaved trails that run along the golf course. There was a chain link fence and a line of trees separating the trail from the gold course, but there were no warning signs indicating that golf is played on the course. While the plaintiffs, a husband and wife, were walking on the trail near the 13th hole, a stray golf ball struck the husband in the eye. His injury led to a loss of 80 percent of his vision in his left eye, and he has a permanent sunken left orbital wall. The club owner stated that the fence is not a barrier but a property line. Before this incident, the club had not received reports of others being hit by stray balls on the trail near the 13th hole.

The plaintiffs brought a lawsuit against the club owner for negligence, unsafe condition of property, failure to warn, intentional and negligent infliction of emotional distress, and other claims. The owner moved for summary judgment on the grounds that he was entitled to trail immunity as well as recreational use immunity, both under Government Code Civil Sections 831.4 and 846. The lower court granted summary judgment in his favor, based on trail immunity.

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.