Southern California Injury Lawyer Blog

Child Assumed Risks Inherent in Skiing and Relatives Not Negligent, According to California Court of Appeal

April 10, 2017 | Sharifi Firm, APC

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.

Judgment in Favor of Defendant Transit System Upheld in Vehicle Accident Lawsuit, California Appellate Court Holds No Abuse of Discretion When Judge Excluded Plaintiff’s Expert Testimony

April 6, 2017 | Sharifi Firm, APC

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.

California Court Upholds Jury Award to Plaintiff Injured in Motorcycle Collision, Determines Plaintiff’s Statement to His Insurer was Privileged

April 3, 2017 | Sharifi Firm, APC

An unpublished opinion issued by a California Appellate Court addressed issues concerning confidentiality and privileged statements made by accident victims to their own insurance companies. Generally, a recorded statement made to the policyholder’s automobile insurance company following an accident is protected under the attorney-client privilege and cannot be used in trial. In this case, after the jury awarded the plaintiff damages for the defendant’s negligence in causing the collision, the defendant argued that the statement should have been admitted to court.

Before trial, the plaintiff made a statement to his own insurance carrier concerning the accident. The trial court determined that this statement had been protected by the attorney-client privilege, and this privilege was not waived. The jury returned a verdict in favor of the plaintiff.

The defendant appealed, arguing the trial court erred when they excluded the plaintiff’s statement to his insurer. The appellate court looked at whether the defendant’s arguments and the statement were properly before the court for consideration. They also analyzed the facts as they relate to laws concerning privilege and trial court error.

California Appellate Court Upholds Dismissal of Beneficiaries’ Claims Following Fatal Aviation Collision; Failure to Allege Facts Supporting a Claim Mandates Dismissal

March 30, 2017 | Sharifi Firm, APC

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.

California Court Holds Defendant was not an “Affiliate” Entitled to Summary Judgment on Negligence and Premises Liability Claims After Tragic Vehicular Accident

March 27, 2017 | Sharifi Firm, APC

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.

Court Upholds Offer to Compromise Following Motor Vehicle Collision Lawsuit; Defendant’s Changed Terms Re-Opened a Completed Negotiation That was not Enforceable under California Law

March 20, 2017 | Sharifi Firm, APC

In a lawsuit following a motor vehicle collision, the injured plaintiffs were awarded compensation for their medical costs, lost wages from work, and general damages. At the time of the collision, the plaintiffs had been acting in the course of employment, and were also awarded workers’ compensation benefits. The main issue in this appeal concerned a settlement offer between the defendant and the employer’s insurance company. On appeal, the court emphasized the role of intention in a written agreement, and particularly when one party is assigning legal rights.

California Code of Civil Procedure section 998 provides an Offer to Compromise, which is often used in personal injury cases in order to reach an agreement in a dispute before trial. In this case, the defendant responsible for causing the automobile accident had appealed a trial court order enforcing a Section 998 Offer. He contended there had not been a meeting of the minds regarding agreed terms of settlement.

The facts of the underlying lawsuits indicate that plaintiffs brought separate lawsuits against defendant for their injuries, and their employer’s insurer filed a complaint in intervention, in order to recover the costs of their workers’ compensation benefits they had paid to plaintiffs. Defendant then attempted to settle the insurer’s complaint through a Section 998 Offer, which was accepted, and filed with the court. Then, defendant sent insurer an agreement with an assignment of plaintiffs’ workers’ compensation lien rights to defendant, which was a modification of the original offer. At the time, the insurer held $161,322.05 in lien rights between the two plaintiffs. Because the Section 998 Offer had not included this assignment of rights, the insurer responsed by sending its draft of the settlement agreement without the assigned rights.

California Court Upholds Determination that Plaintiff Caused Collision when Trial Court Made Findings of Fault and Credibility Based on their Observation and Evaluation of Testimony

March 16, 2017 | Sharifi Firm, APC

The California Court of Appeal recently issued a judgment affirming a lower court’s judgment against a plaintiff in a personal injury lawsuit. Following a motor vehicle collision in San Diego, the plaintiff brought personal injury claims against the County. The trial court issued a minute order that determined the plaintiff had caused the accident when he failed to exercise caution while exiting his driveway and collided with a County employee driving a County vehicle.

On appeal, plaintiff challenged the finding that he was at fault for causing the collision. The appellate standard for review is one of substantial evidence, and the court made clear that an appeal does not serve as a second hearing, but determines whether any error occurred in the trial court proceedings. If there was error, the court must determine whether it was prejudicial to the defendant.

The court also stated that appellants must provide adequate records if they are challenging a trial court’s findings. This is based on the rule that an order or judgment is presumed to be correct, and appellants must demonstrate prejudicial error to be successful on appeal.

California Court Upholds Finding that Defendant Not Liable for Incident on Bike Path in Santa Monica, as Plaintiff Had Not Set Forth Uncontradicted Evidence

March 13, 2017 | Sharifi Firm, APC

Following a collision on a bicycle path in Santa Monica in 2012, a jury found that the defendant bicyclist had not been negligent toward the plaintiff inline skater. The California Court of Ap peal addressed whether the lower court had erred in denying the motion for judgment notwithstanding the verdict (JNOV) and in denying the plaintiff’s motion for a new trial.

The plaintiff argued that the evidence showed the defendant was negligent when he tried to pass him on the path. Since the jury had returned a verdict that the defendant was not negligent, the plaintiff filed a motion for a new trial, and the entry of a partial JNOV (judgment notwithstanding the verdict). The court had denied the motion, and the plaintiff appealed.

California Court of Appeal Finds Dismissal of Juror Prejudiced the State in Wrongful Death Claim Brought by Surviving Family Members after Motorcycle Crash

March 9, 2017 | Sharifi Firm, APC

Following a fatal head-on motorcycle accident on State Highway 33, surviving family members of the deceased brought a wrongful death action. A jury determined that the State of California and the operator of the other motorcycle had been at fault for the accident. Specifically, the State was deemed liable for a dangerous condition on the highway, and the victim’s family was awarded $12,690,000 in damages.

After deliberation, Juror No. 2 stated to the trial court that Juror No. 7 had not been deliberating, and a second Juror had stated this to be true as well. The trial court excused Juror No. 7 and seated an alternate. The issue in this case, on appeal, was whether the evidence supported a showing by “demonstrable reality” that the dismissed juror was unable to perform her duty.

California Court Holds Bar Owner & Manager Not Legally Responsible for Intoxicated Patron/Employee’s Fatal Car Accident

March 6, 2017 | Sharifi Firm, APC

In an unpublished opinion, a California Court of Appeal held that the owner and manager of a bar was not responsible for the death of a woman who had been served alcohol and allowed to drive home while intoxicated. In reaching this conclusion, the court affirmed the lower court’s decision to sustain the defendants’ demurrer to the plaintiffs’ third amended complaint. Specifically, the court rejected the argument that there was an applicable exception to the general rule that serving alcohol does not render a person liable for any resulting injuries.

The decedent in this case was a 27-year-old wife and mother who lost control of her car while driving while intoxicated. The plaintiffs in this case were the son, husband, and parents of the decedent. They brought a lawsuit against the owner and manager of the bar where the woman had been drinking before driving, alleging that they had been negligent in serving her alcohol and allowing her to then drive.