California Personal Injury Law Case Notes : California Personal Injury Lawyer & Attorney : Kristine Meredith : The Danko Law Firm : Car Accidents & Product Liability

Proposition 213 became law in 1996.  That law says that an uninsured driver who is injured in an auto accident  may not recover certain damages due her, even though the accident was entirely the fault of the other driver.  The damages the innocent driver is prohibited from collecting are her non-economic damages, which include pain and suffering.

The insurance companies passed Prop 213 to save money and maximize profits at the expense of the driver who was not at fault in an accident. The only exception: an uninsured driver my collect damages for pain and suffering if the negligent driver who caused the accident is later convicted of drunk driving.

By its terms, Prop 213 applies to those uninsured drivers who were actually at the wheel when they were struck by another driver.  But courts have  applied this law broadly to keep compensation from drivers who weren't even in their cars when the accident took place.  For example, courts have ruled that Prop 213 deprives uninsured drivers of the right to be compensated for the injuries even if they were outside their parked car when they were run down. 

Given the harsh results, it is important  that all drivers carry liability insurance on their cars and trucks.

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Waivers signed by parents, releasing liability for future negligent acts committed against minor children in recreational and related settings, are generally enforced by judges in California as discussed here. Interestingly, a clear majority of courts in other states have held that a parent may not release a minor's prospective claim for negligence.

And when the victim is an adult family member who dies participating in an activity for which he signed a waiver, those who can bring a lawsuit on his behalf will also likely be bound by the waiver.
 

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This week a San Diego jury found a golf course responsible for the death of a golfer who was killed after falling off an 80 foot cliff in a golf cart and awarded his family $2 million.  The golfer Edwin Payne tried to make a U-turn on the golf path but drove over a small inner curb, lost control of the cart on a slope veiled by trees, and eventually was catapulted over the cliff.  As discussed here, the property owner must  keep its property in a safe condition and warn of any unsafe conditions.The jury determined that the Pala Mesa golf course should have installed a higher curb and failed to warn him about the cliff behind the trees.  The award will be reduced by 30% because the jury assigned partial fault to Mr. Payne based upon the principle of comparative fault previously discussed here.

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California is a "comparative fault" state. This means that if a victim is partially at fault for the accident, the jury will be asked to determine the percentage of the blame that lies with the defendant, and the percentage that lies with the victim. The victim will be entitled to collect only that percentage of the verdict for which the defendant is responsible.  For example, if a jury determines that the victim was 30% at fault for causing the accident, and the defendant was 70% responsible, the victim can collect only 70% of the jury's verdict.

Some states do not allow a victim who is more than 50% liable for causing the accident to receive any compensation at all. That's not the rule in California.  California law allows the victim to collect the appropriate percentage of the jury's verdict, even if the jury determines she was more than 50% responsible.  

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When a person is injured, the initial investigation might not provide all of the answers. For example, when a product such as a Blue Ember gas barbecue grill causes an injury, victims and investigators want to know: “When was the manufacturer first aware of the problem? And, should they have warned earlier about the potential to cause serious injuries? ” 
To get answers, the victim's attorney needs to review internal documents and interview employees and supervisors. Unfortunately, wrongdoers seldom allow their victims' attorneys to review their internal files voluntarily. To get their cooperation, the victims' attorney needs a subpoena. Only then will the manufacturer or other defendants be legally required to open up their files and submit to questions under oath. But to get the subpoena, the attorney needs to file a lawsuit.

 So, then, how much evidence does a victim need before he can file the lawsuit?

It's a bit of a catch-22. An attorney needs to file a lawsuit before he can conduct a thorough investigation. But he needs to investigate to unearth the facts that justify filing a lawsuit. So what facts must an attorney know before filing a lawsuit? In California, the law requires a mere "statement of facts constituting the cause of action, in ordinary and concise language."  What does that mean? Mere allegations of fact which, if true, would entitle the victim to be compensated, are good enough. At the beginning stages of the lawsuit, the victim’s ability to actually prove the allegations is of no concern.

Not true for federal court. The requirements for filing a lawsuit in federal court are more stringent. In federal court, the attorney needs a "good faith basis" for each allegation of fact. It is no excuse that the attorney cannot conduct an investigation into the facts until after the lawsuit is filed. And, recently, the U.S. Supreme Court made it more difficult. The defendant who is sued in federal court can ask the judge to review the initial complaint and draw upon his or her judicial experience and common sense to determine if the allegations are " plausible. " If the judge thinks the allegations are not, then he can throw the case out before the defendant has to answer any questions at all.

This stringent federal standard is one of several reasons victims’ attorneys prefer to file lawsuits in California state courts. Under the federal standard, the Judge may close the door to the victims before important questions are answered.

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In the past week, I’ve signed waivers for field trips and summer camps. Some are lengthy and complicated and others short and simple. Waivers are common in sporting activities and at health clubs. Generally, a waiver means that the participant agrees in advance to accept liability for injuries that may result from negligent acts of others. If something goes wrong, the activity provider will use the waiver to defend against the claim. Waivers that are clear and straightforward will usually defeat a claim, unless the activity provider knew about a danger and ignored it. 

If you have been injured during an activity and you signed a waiver, your chances to be compensated are likely reduced. When I meet with new clients, I ask them to bring copies of waivers, as well as any enrollment forms or product rental agreements. I carefully look at the language used in the forms and find out their understanding of those documents. 
 

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