Articles Posted in Personal Injury

The California Court of Appeal recently issued an unpublished opinion in a case that posed the question of whether an injured worker had presented evidence sufficient to pursue a claim of vicarious negligence against the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.

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In an unpublished opinion, a California Court of Appeal addressed whether workers’ compensation served as the exclusive remedy for an employee psychologically harmed by her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.

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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.

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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.

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In a recent unpublished opinion regarding an underlying premises liability lawsuit, the California Court of Appeal upheld a judgment in favor of a Southern California supermarket chain after the plaintiff alleged a defective floor caused her to slip and fall and suffer injuries. The court reviewed the evidence presented before the trial court, relying on the rule of law that states that property owners are not responsible for defects that are deemed “trivial” as a matter of law.  In this lawsuit, the plaintiff had not shown the defect to be material, and her opposition to the defendant supermarket’s motion for summary judgment did not create a triable issue of material fact.

The plaintiff brought a lawsuit against Hughes Markets, Inc. dba Ralphs. She alleged premises liability and negligence. Ralphs moved for summary judgment, which was granted by the trial court. The plaintiff appealed.

The facts indicated that while the plaintiff was exiting a Ralphs Store in Sherman Oaks, she slipped and fell.  She filed this complaint and contended that the floor was uneven and defective. In their summary judgment motion, Ralphs argued the floor defect was trivial as a matter of law. They supported their motion with a declaration of the former store manager, who had inspected and measured the floor.  The plaintiff relied on a declaration by a civil engineer in support of her opposition to summary judgment. Ralphs alleged that they could not be found liable because there was no condition that created a substantial risk of injury. They argued that the floor defect was trivial.

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In a recent case before the Second Appellate District, the California Court of Appeal addressed whether an award of punitive damages comported with due process following a life insurance company’s alleged fraud and intentional conduct toward a disabled veteran.  At issue was whether the punitive damages award must be limited to no more than 10 times the compensatory damages award. The appellate court looked at the factors that determine an award of punitive damages, upholding a constitutional limit of 10:1 for punitive to compensatory damages awards.

Mr. Nickerson served in the United States Marines and was entitled to care at the Veterans Administration hospitals, with expenses paid. In 1997, Mr. Nickerson was involved in a snowmobile accident and as a result was paralyzed from the chest down. At the time of the incident, he relied on a wheelchair and was single, working as a live-in caretaker for other veterans. In exchange, he received free rent. He had a very small military pension.

While sitting in a motorized wheelchair, on a lift, waiting to be lowered from his van, Mr. Nickerson accidentally hit the control and lurched forward. He fell to the pavement, breaking his leg.  He was taken to a VA Hospital in Long Beach and treated by Dr. Hung Nguyen. Mr. Nickerson remained at the hospital for 109 days.

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In an unpublished opinion, the California Court of Appeal recently held in favor of the Regents of the University of California in an underlying personal injury lawsuit brought by a student who was seriously injured while riding his bike across campus. At issue in this appeal was whether the trial court had properly responded to a jury question concerning a definition central to the legal claim in this case. The appellate court rejected this claim of instructional error proposed by the student, stating that the language used by the trial court clarified and was based on the actual language of Government Code Section 835, the basis of the plaintiff’s legal claim.

Geoffrey Chen, a student at University of California, Irvine (“UCI”), was biking across campus when he rode across a grassy slope next to a bicycle pathway. He had used the shortcut before, without issue, and seen others using it as well.

On that particular day, Mr. Chen’s bicycle rode over a retaining wall that had been obscured by vegetation. After being thrown from his bicycle, Mr. Chen landed on his head on a drain cover that sat at a catch basin below the retaining wall.  Due to the fall, Mr. Chen suffered an injury to his spinal cord and remains paralyzed from the chest down.

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In an unpublished opinion, the California Court of Appeal analyzed whether a motion for summary judgment was properly granted in favor of the City of Inglewood in a premises liability lawsuit brought on behalf of a minor injured on a playset swing.   The issue before the court was whether the City had met its burden of proof on summary judgment, setting forth facts that negated the claim that a dangerous condition existed and that the City knew or should have known of its existence and failed to correct or remedy the situation.

Lilah Belser, 12 years old at the time, had been playing on a swing in a park in Inglewood. She moved to dismount, but her finger remained caught inside a link of the swing and was partially amputated. Through a guardian ad litem, Ms. Belser filed a claim for damages against the City of Inglewood, alleging the chain link openings were too big for use by minor children. She then filed a premises liability lawsuit on the ground that the size of the openings constituted a dangerous condition in violation of Government Code Section 835.

The City moved for summary judgment. The trial court granted the motion, finding that the City met its burden of showing the swing set did not constitute a dangerous condition.  The court also held that the declaration of Ms. Belzer’s expert did not create a triable issue of material fact. The court entered judgment in favor of the City, finding the City did not have actual or constructive notice that the swings were in a dangerous condition, since there had not been other complaints. Ms. Belser appealed.

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The California Court of Appeal recently addressed the issue of whether an employer can be held liable for injuries caused by an employee under the doctrine of respondeat superior.  In this unpublished opinion, the court assessed whether the going and coming rule applied to an employee who provided two other employees a ride to their employer-paid hotel and caused a traffic accident as they were driving home from work.

The trial court in this case applied the going and coming rule after the employer moved for summary judgment and the plaintiff moved for summary adjudication.  The court had focused on the facts that the employees were responsible for arranging and paying for their transportation from the employer-provided hotel to the job site, the employer had not required employees to rideshare or carpool, and the employer did not benefit, even incidentally, from the ridesharing arrangement of the employees.

The employer in this case was Helmerich & Payne International Drilling Co. (H&P), a company that operates oil drilling rigs, including those in Kern County.  Employees work a shift, called a “hitch” for the drilling rigs, which is a 12-hour day for 14 days, followed by 14 days off. The defendant employer provides hotel arrangements, should the employees want to stay close to the drilling site.  Employees are responsible for paying for their transportation to and from the hotel and the job site.

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Recently, the California Court of Appeal reviewed an appeal involving a personal injury plaintiff’s damages for past medical expenses. At issue was the reasonable value of medical services received by the plaintiff, who, at the time of the underlying motor vehicle accident, was uninsured. The court narrowed their decision, abiding by precedent that a plaintiff is entitled to recover from the tortfeasor the reasonable value of medical services.

In this case, defendant Richard Mercer admitted he negligently collided with plaintiff Lillie Moore’s vehicle. Ms. Moore’s health and lifestyle were negatively affected, and she had not suffered any physical limitations before the accident.  At the time of the collision, Ms. Moore was uninsured.

Ms. Moore’s life changed greatly following the accident, and she eventually moved to be near additional family support.  After being unable to engage with her son or participate in full-time work, Ms. Moore agreed to undergo disk replacement surgery for her back. The court noted that disk replacement surgery is difficult, and only five or six surgeons in the Sacramento area regularly conduct these procedures. Before securing medical treatment, Ms. Moore executed medical lien agreements with her health care providers. They obligated her to pay the full amount of billed fees. Her providers sold their bills and liens to Medfin, a medical finance company.

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