Southern California Injury Lawyer Blog

California Court of Appeals Reverses Dismissal of Vehicle Accident Case as Forum Issue Remains Unsettled

September 11, 2015 | Sharifi Firm, APC

The California Court of Appeal recently reversed an order dismissing a case involving a bus accident on Highway 101 in Monterey County. The issue before the court in this case centered on where the action should be tried. The accident led to a consolidated action brought by the passengers or their families against Capitales Tours, S.A. and others. In the first appeal from the 2009 accident, the California Court of Appeal affirmed an order applying forum non conveniens, staying the action for one year. Forum non conveniens provides courts the power to dismiss a case for another court, or forum, that is better suited for the case.

After the stay, which lasted two years, the superior court dismissed the action on the grounds that the plaintiffs did not pursue their claims in France and opposed the French courts’ assumption of jurisdiction. The plaintiffs again appealed and alleged the order was premature and did not comply with procedural and substantive dismissal requirements.

In the accident that led to the litigation, a bus driver lost control of the vehicle while crossing a bridge and collided with the bridge rails, eventually rolling the bus onto its side. Eighteen passengers of the 34 French tourists, and their guide, were ejected from the vehicle, and several were thrown over the bridge onto the railroad tracks below. The driver and four passengers were killed, 21 were severely injured, and 10 suffered minor injuries.

California Court of Appeals Reverses Judgment for City as Design Immunity Does Not Apply

September 8, 2015 | Sharifi Firm, APC

Recently, in an action for a dangerous condition on public property, the California Court of Appeals held there was a material dispute of fact regarding whether an intersection and crosswalk posed a risk of injury to a pedestrian. In this case, the court reversed the lower court’s grant of summary judgment. The appellate court addressed the government’s affirmative defense of design immunity and held that “add-ons” that are installed after the project is approved are not part of government design immunity.

Griselda Castro and her two children, as well as two other children in her care, were walking in a crosswalk. Ms. Castro pressed the button to activate the warning beacon before crossing, and she saw a vehicle stop. She and the children began crossing the street and were struck by a van. The van driver did not see the warning beacon, nor did he see Ms. Castro and the children. Ms. Castro and the children sustained serious injuries upon impact.

California Court of Appeal Rejects Injured Employee’s Attempt to Rebut Her Designated Disability Score

September 4, 2015 | Sharifi Firm, APC

In a recent case, the California Court of Appeal addressed the process of attempting to change, or rebut, an assigned statutory rating of disability. The California Permanent Disability Rating Schedule assesses an individual’s degree of permanent disability. There are four components of the Schedule: (1) the type of injury; (2) the applicant’s occupation; (3) the applicant’s age; and (4) the applicant’s decreased future earning capacity. Consistency and objectivity are promoted through the Schedule because it helps to ascertain indemnity benefits.

In this case, an injured worker claimed that she would have a harder time rehabilitating and therefore face a greater loss of future earnings than the Schedule set forth. The court reviewed the appropriate methods for rebutting the Schedule’s rating and assessed her allegations.

The scheduled rating can be rebutted in three ways. First, a party can show a factual error in the application of the formula. Second, the injured employee’s rehabilitation may have been impaired, and their decreased future earning capacity may be greater than shown in the rating. Third, a rating can be rebutted when a claimant shows that the nature or severity of their injury is not captured in the sampling of disabled workers used to determine the adjustment factor.

California Court of Appeal Affirms Judgment in Favor of City Due to Public Entity Immunity

September 1, 2015 | Sharifi Firm, APC

In a recent case before the California Court of Appeal, the court affirmed the judgment in favor of the City and County of San Francisco. The plaintiff, a forest ranger in Yosemite National Park, alleged he suffered injuries from a dangerous condition on public property. The plaintiff lived in a residential unit rented from the defendant, the City and County of San Francisco. Allegedly, the dangerous condition was the absence of a fire extinguisher from the plaintiff’s residence. The trial court held liability was precluded by the immunity provided to a public entity for failing to provide or maintain fire protection facilities or equipment.The incident in this case involved a kitchen fire in the plaintiff’s residence. The defendant provided tenants, including the plaintiff, fire extinguishers. Normally, the defendant collected and exchanged the fire extinguishers in the course of one day. But the fire extinguisher in this case had been picked up about one month before the day of the fire. While at the stove, the oil in the plaintiff’s skillet caught fire. He ran to retrieve the fire extinguisher, but it was missing.

The plaintiff unsuccessfully used a baking sheet to try to smother the flames. He then grabbed the skillet and tried to throw it out the door. The spring on the door forced the door to swing back and hit the pan, and burning grease splashed onto the plaintiff’s hand. As the plaintiff jumped down the stairs, the pan hit the stairs and splashed burning grease on his back.

California Court of Appeals Holds Evidence of Pretrial Settlement Between Plaintiff and One of Two Defendants Should Have Been Admitted at Trial

August 27, 2015 | Sharifi Firm, APC

In a personal injury lawsuit before the California Court of Appeal, the court addressed the trial court’s exclusion of evidence concerning a pretrial settlement between the plaintiffs and the taxicab company.

In this case, a taxi passenger, Christine Diamond, was injured during a vehicle collision with another car. Mrs. Diamond and her husband (the Diamonds) brought a negligence action against the drivers and owners of both vehicles. Claims against the taxi driver and the owner of the cab, as well as the Yellow Cab Taxi Company, (Yellow Cab) were settled, and pursuant to a provision in that settlement, Yellow Cab agreed to participate as a defendant in the Diamonds’ jury trial. Yellow Cab moved for a determination that the settlement with the Diamonds had been made in good faith. The Reshkos did not oppose this good faith finding, but they added there must be a recognition at trial that there had been a settlement. The court made the good faith determination but did not decide whether the evidence of the settlement was admissible at trial.

The jury found that both drivers had been negligent and that the driver of the other car, Serge Reshko, and his mother (the Reshkos) had been 60 percent responsible. The Reshkos were held liable to the Diamonds for $406,698.00, plus fees and costs.

California Court of Appeals Reviews Summary Judgment in Favor of Doctors and Healthcare System in Professional Negligence Lawsuit

August 24, 2015 | Sharifi Firm, APC

In a wrongful death lawsuit, the California Court of Appeals addressed the standard of care applicable to medical staff, including physicians and surgeons as well as nurses and hospitals in general.

Yvonne Lattimore brought a wrongful death action against the doctors and the medical system at Salinas Valley Memorial Healthcare System (Salinas Valley Systems) for the care and treatment of her father, Albert Lattimore. Ms. Lattimore appeals the trial court’s granting of summary judgment in favor of the defendants.

The issue on appeal is whether the trial court improperly granted the motion for summary judgment. Ms. Lattimore alleges she presented evidence opposing those motions and raised a triable issue of fact as to whether the treatment of her father violated the applicable standards of care.

California Court of Appeals Rules that Statute of Limitations is Tolled Upon Payment in Medical Malpractice Action

August 20, 2015 | Sharifi Firm, APC

The California Court of Appeal recently held that the one-year statute of limitations is tolled when a payment is made for medical malpractice actions. Statutes of limitations determine the time period within which a legal claim is to be filed. After the specified period has passed, those legal claims cannot be filed.

In this case, Coastal Surgical Institute appealed from the jury’s verdict and entry of judgment in favor of Charles Blevins. The company alleges that it was error for the trial court to determine that Insurance Code section 11583 tolled the statute of limitations. They also argued that the trial court should not have denied their motion to bifurcate the jury trial on the affirmative defense of the statute of limitations, and that they should have instructed the jury on the issue of who was at fault.

The facts demonstrate that Mr. Blevins received knee surgery at Coastal Surgical Institute (Coastal). Mr. Blevins suffered a knee infection following the surgery, caused by a bacteria found on a sponge used to clean surgical equipment. Coastal paid Mr. Blevins for his medical expenses for treating the knee infection, totaling $4,118.23. Coastal acknowledges that at the time of the payment, Mr. Blevins was not represented by legal counsel, and Coastal did not provide written notice of the statute of limitations for bringing a medical malpractice action.

California Appeals Court Remands for New Trial in Car Accident Case Involving Issues of Credibility

August 17, 2015 | Sharifi Firm, APC

In a case involving a car accident during a test drive, the California Court of Appeals addressed whether alleged cumulative evidentiary errors during trial and attorney misconduct resulted in prejudice to the defendant.

Kenneth Gonsalves, a BMW salesperson, was a passenger in a vehicle driven by Ran Li. Mr. Li was test-driving a vehicle and allegedly drove recklessly, causing the accident in which Gonsalves suffered back injuries. After a jury found Li negligent and Gonsalves not comparatively negligent, Gonsalves was awarded more than $1.2 million in damages.

On appeal, Mr. Li argues the trial court committed evidentiary errors and did not adequately look into juror misconduct. He also alleges Mr. Gonsalves’ trial counsel committed misconduct.

California Court of Appeals Rules on Liability of Motor Carrier for Negligence of Contract Driver

August 13, 2015 | Sharifi Firm, APC

The California Court of Appeals addressed whether a motor carrier responsible for transporting goods across the country can be held liable for the negligence of an independent contractor driver.

The facts of this case center on an automobile accident involving a tractor-trailer. Mr. Villalobos was driving the tractor-trailer, and Mr. Vargas was in the sleeper berth when the vehicle rolled over, injuring Mr. Vargas. Mr. Vargas then filed a lawsuit against the motor carrier and trailer owner (FMI), the tractor owner (Eves Express, Inc.), and Mr. Villalobos. The trial court concluded that FMI and Eves were not vicariously liable for Mr. Villalobos’ alleged negligence.

Mr. Vargas appealed the trial court’s granting of summary judgment. He contends that FMI owed him a nondelegable duty of care, and they are vicariously liable for Mr. Villalobos’ negligence, and that Eves Express is also vicariously liable. In response, FMI argued that, since they hired independent contractors, they implicitly delegated to the independent contractor any tort law duty they may owe the contractor or the contractor’s employees to ensure workplace safety.

California Court of Appeals Applies Premises Line Rule to Determine Employee is Entitled to Workers’ Compensation Benefits

August 10, 2015 | Sharifi Firm, APC

In a recent case, the California Court of Appeal reviewed a decision of the Worker’s Compensation Appeals Board (WCAB) that denied benefits under the “going and coming rule.” This is a rule that mandates that workers’ compensation benefits not be awarded to employees injured during a local commute to a fixed place of business, at fixed hours. The rationale is that the injury has not taken place during the ordinary course of employment.

Craig Schultz suffered injuries in a traffic accident while driving his personal vehicle on the Edwards Air Force Base, where he worked for Joint Testing Tactics and Training (Joint Testing). He applied for workers’ compensation benefits.

His trial brief included Mr. Schultz’s argument that the use of his personal vehicle was an express or implied condition of employment and an accommodation to Joint Testing, even if it was not a condition of employment. For these reasons, Mr. Schultz argued the going and coming rule did not preclude workers’ compensation liability. In his post-trial brief, Mr. Schultz also contended that the premises line rule applied. Since he was on Joint Testing’s premises when he was injured, as a matter of law the employment relationship had begun.