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

Can one person be held responsible for the wrongdoing of another? Usually no, but it depends. Some situations justify holding a person responsible for the act of another. For example, an employer will be held responsible for the wrongdoing of an employee that occurs while in the course and scope of employment. And, a landowner can sometimes be held responsible for the acts of a third person which injure someone coming on his property. 

Holding one person responsible for the wrongdoing of another is referred to as vicarious liability.

Vicarious liability can sometimes be imposed on:

• parents for injuries caused by the intentional acts of their child;
• a car owner for injuries caused by one driving a car with the owner's permission;
• an insurance company for negligence of an insured driver;
• a person who entrusts a dangerous instrumentality to an improper person who causes harm.

But vicarious liability will generally not be imposed on:

• parents for acts of their child that are merely negligent, except by statute in special situationst;
• one spouse for the wrongdoings of the other;
• a landlord for the wrongdoings of a tenant.

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A parent can sometimes be liable for the harm his or her minor child causes to others.

Here are some situations in which, in California, a parent is automatically liable:

• When the parent has signed  the child’s driver’s license application, and the child’s driving hurts someone (but the parent’s liability is limited to $15,000 per person and $30,000 per incident);
• When the child drives the parent’s car with the parent’s permission, regardless of whether the parent has signed the license application (liability limited to $15,000 and $30,000 per incident);
• When the child hurts someone with a firearm supplied by a parent (liability limited to $30,000 per victim and $60,000 per incident); and
• When the child willfully injures someone (liability limited to $37,100).

In the situations listed above, the parent is liable even though he or she was acting responsibility. But if the parent was not acting responsibility, his or her liability for the harm the child causes will be unlimited. Thus, a parent will be liable for the full amount of the harm  the child causes in the following situations:

• When the parent provides the child alcohol and the child harms someone as a result;
• When the parent entrusts a car, weapon, or other dangerous instrumentality to a child who the parent should have known was not experienced enough to use it safely; and
• When the parent fails to properly supervise or control a child who the parent knew, due to the child’s prior misconduct, could harm others.

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Usually, a homeowner who hires an independent contractor can delegate the responsibility for safety to the contractor. The theory behind the rule is that when an owner hires an independent contractor—or when a prime contractor hires a subcontractor—the responsibility for the safety of the contractor’s employees belongs with the independent contractor, not with the person who hired the contractor.

There is an important exception to the independent contractor rule. The rule does not apply to contractors who are not properly licensed. A provision of the California Labor Code  presumes that, for work that requires a contractor’s license, the unlicensed contractor is deemed to be an employee of the one who hires him and not an independent contractor. That can mean that the homeowner who hired the worker loses the protection of the independent contractor rule and can be held responsible for his worker’s safety, just as any other employer.

Recently the California Supreme Court held that a significant residential remodel, even one managed by an owner-builder and not by a professional contractor, was subject to the Cal-OSHA regulations. As discussed here, significant remodel is exactly the type of construction activity that OSHA was intended to regulate, and was not a “household domestic service” like tree trimming or home maintenance that was exempt from regulation.  The Court’s ruling allows the unlicensed injured worker to proceed with his lawsuit against the homeowner, and to introduce into evidence the violations of Cal-OSHA regulations to establish the homeowner’s fault.

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Homeowners who hire workers must comply with Cal-OSHA safety regulations. Those regulations require the homeowner, as an employer, to furnish a “safe and healthful” place of employment. “Employment” means "the carrying on of any trade, enterprise, project, industry, business, occupation, or work, including all excavation, demolition, and construction work, or any process or operation in any way related thereto, in which any person is engaged or permitted to work for hire, except household domestic service."

The question, then, is what type of work qualifies as “construction” (so that Cal-OSHA applies), and what type is “household domestic service” (so that it doesn’t)?

The courts say that “household domestic service” means household maintenance both inside and outside the residence. If a homeowner hires a worker to clean house, garden or trim trees, Cal-OSHA doesn’t apply under the “household domestic services” exception. But the homeowner must comply with Cal-OSHA when hiring workers for extensive remodeling. The Court recently determined that Cal-OSHA applies to a remodeling project calling for the demolition and rebuilding of significant portions of a house and the construction of new rooms. And, the homeowner may be liable for injuries to a worker caused by failure to comply with Cal-OSHA.

Because Cal-OSHA will apply to an extensive remodeling project, the homeowner who handles his own project must be sure to implement and administer his own Cal-OSHA compliance programs, or to hire licensed independent contractors to do that for them, and to place safety compliance obligations squarely with their contractors through appropriate language in the construction agreements.
 

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Some estimate that automotive rear-enders cause about three million cervical injuries (a.k.a. "whiplash" injuries) in the U.S. each year. The injuries are real. According to the Insurance Research Council, the average payout for these injuries, which includes medical costs, lost wages, and pain and suffering, is around $8,000. Do the math. The potential cost of these injuries to insurance companies is an estimated $24 billion annually.

The insurance companies evade, avoid, and outright refuse to pay such costs.  In fact, to keep from paying, the insurance industry has developed a "no crash, no cash" policy. To keep from paying valid claims, the industry has created a fiction: if the vehicle is not damaged, then neither is the occupant.
 

Here are the tactics the industry uses to avoid paying:
 

• The insurance company tells the injured party: "Sorry, but we don’t believe injury is possible when the property damage is so low. We won’t pay." The patient has trouble finding an attorney because the attorney's percentage of the amount recovered (remember, it averages $8,000) is not worth his time and resources.
• If the victim finds an attorney, the attorney is often outmatched by the insurance company lawyers who are intent on ensuring that the attorney loses money on the case so that he'll never take another one.
• The insurance company lawyers will show a photo of the undamaged rear end of the car and tell the jury "This is a nonevent". The insurance company lawyers villainize the victim as a greedy plaintiff looking for a quick buck.
• The insurance company hires medical experts to spout their argument: "Injuries don't happen in low-speed impacts; if they do they are like bruises and will heal within six weeks".
• The insurance company supports an entire industry of accident reconstructionists and biomechanists who may impress the jury with their PhD’s; and at the same time bore them with one-sided research articles, complex mathematical formulas and contrived statistics.
• The victim's treating doctor, with limited courtroom experience, is ill-prepared to counter the insurance company's hired guns.
• The plaintiff lawyer may be uninformed about the insurance industries' prevailing strategy and unprepared to cross-examine the hired guns.

As a result, millions of folks who are injured due to no fault of their own go uncompensated by the insurance companies.  Never mind that the insurance companies collect premiums to pay exactly that sort of victim.
 

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Are business owners or landlords responsible to those injured due to the criminal acts of third parties? Sometimes. Because of the “special relationship” a California business owner has with its customers, the owner or landlord must take reasonable steps to keep the premises safe against foreseeable criminal acts of others. In determining whether the owner must compensate the victim for his injuries, courts consider:

• the type of crime committed
• the type of commercial property (for example the owner of a parking garage will likely have a greater responsibility for safety than a business owner in a shopping center)
• Whether the owner had notice of any previous criminal conduct
• whether the owner had any reason to anticipate the type of criminal conduct that actually occurred
• whether the owner could have discovered that criminal acts were being committed on the property
• whether the owner has hired security guards
• whether the security guard acted reasonably at the time of the criminal act
• whether the criminal act occurred on property under the owner’s control
• whether the owner had any formal security policies
• whether the owner’s employees complied with the stated policy

Several of these factors relate to whether the owner had notice of prior criminal acts and how it responded to those acts. Unless a victim reports the criminal act to the property owner, the business owner or landlord may never learn of it, even if the police responded. To allow the owner an opportunity to correct the security issues before someone is hurt, it is important to always report security issues directly to the owner, and not just to law enforcement.  

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Not necessarily.  If the claim process is proceeding smoothly with open and productive communication between the claimant and the insurer, then the claimant may stay the course. But a qualified attorney can help when the claimant feels:

• frustrated;
• deadlocked with the insurer;
• unfairly treated by the insurer; or
• concerned about time passing and possibly losing her rights.

To assist the homeowner with the claim, the attorney will need a complete copy of the homeowner’s policy, including the "Declarations Page", and all "Endorsements" and "Riders".  Generally, the Declarations Page is the first or second page of the policy which states the dollar limits for each category of coverage and lists the "extras" known as endorsements and riders. The endorsements and riders will be listed by a code number or letter, or combination thereof. 

The attorney will also need a complete copy of the homeowner’s personal claim file, including all communications the homeowner has had with the insurer and any of its representatives. 

If you're not sure that you are being treated fairly and would like an attorney's input, give us a call or send us an email.

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Many of the San Bruno residents evacuated on September 9th may be categorized as “survivors,” having escaped the Glenview fire without being burned.  But even though they suffer no physical injuries, the gas explosion will leave dozens with emotional injuries that will persist for a long time to come.

Generally the law does not require a wrongdoer to compensate the victim for the emotional distress it has caused a victim unless it has also caused the victim to suffer some sort of physical injury.  And certainly PG&E will argue that the general rule should apply here -- that unless a victim suffered physical injury, PG&E shouldn't be required to compensate him for any emotional injury that it may have inflicted.

But in a special situation like this one, everyone who suffered serious emotional injuries should be entitled to compensation, regardless of whether they suffered any physical injuries.   That's because PG&E knew that if its negligence led to a gas line explosion, people would fear for their lives and for those of their loved ones.   PG&E's behavior was morally wrong and the laws are designed to hold wrongdoers accountable for all the harm they cause, even if that harm is "only" emotional distress.

Seeking compensation for emotional distress (or "post traumatic stress disorder") does not mean you are weak or can't handle a stressful situation. Nor does it mean you are piling on or taking advantage of the system.   People who suffer from emotional distress suffer real losses.   Often because they can't concentrate, they lose their jobs or do poorly in school.  Their family situations may deteriorate because they begin to snap at those they love.  They suffer from anxiety – feel constantly "on edge" -- and that can lead to depression.  

Lawyers experienced in PG&E explosion cases can assist the San Bruno residents who are suffering emotionally from this haunting catastrophe.

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Governor Schwarzenegger has signed a bill into law that will allow adults who serve alcohol to minors to be held accountable for their actions.  Under the new law, adults who serve alcohol to those under the legal drinking age of 21 can be sued for any injuries or death that result from the intoxication.  Surprisingly, before the law was passed, adults who served minors in their homes were immune from civil liability.

 As discussed here, trial attorneys and Mothers Against Drunk Driving  teamed up to sponsor this bill aimed at protecting everyone from the harmful consequences of under-age drinking.

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Of course a wife is entitled to recover against the wrongdoer who caused the death of her loving husband. But what if the husband had long ago abandoned her? Without a loving relationship or continuous support, is the "forgotten widow" entitled to any compensation at all?

In most cases, yes, because the forgotten widow or abandoned wife who has lost her husband is viewed as having lost her husband's financial support. Even if the husband had not been paying that support, the widow is entitled to compensation.

In the usual wrongful death case, an award for loss of support is based on the amount of support the widow proves her deceased husband would have provided to her in the future. But a California court has ruled that, in the case of the forgotten widow, that proof is not necessary.

The California court  in Powers v. Sutherland Auto Stage Co., considered a case where the deceased spouse had deserted his wife more than 13 years before his death. During that time, he had sent her only infrequent small checks, and for several years prior to the his death, the claimant wife had heard nothing from him and did not know his whereabouts. The spouse was entitled to no compensation for the loss of her husband's "care comfort or society.' But the court determined that the wife was entitled to be compensated for the loss of her legal right to support.

It made no difference that the wife had never attempted to enforce her rights. Her right to support was created by the marriage and would exist so long as the marriage itself existed. By causing the death of her husband, the wrongdoer deprived the forgotten widow of a right to which she was legally entitled.
 

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There's no longer any debate.  Tires older than six years should be discarded and replaced, even if they otherwise appear to be in good condition with plenty of tread.  In fact, they should be tossed out  even if they've never been used.  That's because tires older than six years are prone to "detreading."  Detreading is a type of tire failure where the tread peels from the tire much like the skin may peel from a banana.

Detreadings are more dangerous than flats or blow-outs.  Some vehicles, including SUV's, can become uncontrollable after a detreading and can roll over, especially if it's a rear tire that fails.

One need look no further than the vehicle's owner's manual for guidance.  Almost all the car manufacturers now warn to replace tires after six years, regardless of condition.  That includes Volvo, Nissan, Toyota, BMW, and even Ford. In fact, Ford posted a warning on its website: 

Tires degrade over time, even when they are not being used. It is recommended that tires generally be replaced after 6 years of normal service. Heat caused by hot climates or frequent high loading conditions can accelerate the aging process.  

Until recently, the tire manufacturers argued that tires were good for at least 10 years.  Maybe even indefinitely if they had adequate tread. It's only now that the tire makers agree that the "six-year" rule should be followed.

What gives?  Wouldn't a tire manufacturer want consumers to toss out tires sooner, so that they could sell more?

No.

Tire manufacturers make tires in batches and then store them until needed. That' means the tire you buy at a tire store as "new" may be up to 10 years old.   Sometimes even older.  If buyers began rejecting those tires, tire manufacturers would have to change their whole way of making and distributing their product to get them to market and sold while still "fresh."

Consumer groups have argued that tire makers should stamp the year of manufacturer on the outside tire sidewall, so the consumer would have no trouble telling how old the tire is.  Or at the very least, tire shops should be required to advise customers when the new tire they are buying isn't exactly "new." 

Tire makers and tire shops resist.  They say the code containing the tire's date of manufacture is stamped on the inside sidewall for anyone to see.  But the problem with that is the coded information is hard to find and is, well, in code.      

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California's "financial responsibility" law requires that all motorists carry a minimum level of liability insurance in case they cause an accident. That includes an accident that hurts a cyclist. The problem is that the minimum coverage ($15,000) is enough to cover minor injuries only. If any hospital stay is involved, the minimum coverage is unlikely to be enough. The majority of accidents involving a bicycle and a car send the cyclist to the hospital. Cyclists are thus placed at particular financial risk by "underinsured" motorists. 

If the cyclist owns a car, he can protect himself by purchasing "Uninsured/Underinsured" coverage.  The benefits of this coverage applies whether the driver who caused the accident is uninsured, or insured but carries an inadequate amount to cover the injuries. The coverage will apply even though the cyclist was on his bicycle and not in his car.  Thus, in the appropriate case, the cyclist's UM/UIM coverage will step in and compensate the injured cyclist, up to the amount of the cyclist's coverage limits.

For the cyclist to take advantage of the UM/UIM coverage, the cyclist may not accept a settlement from the driver without first obtaining his insurer's permission. If the cyclist does accept a settlement, the UM/UIM may refuse to pay the cyclist's claim.

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To win a lawsuit, the victim must prove that defendant was negligent --  that is, that he did not exercise "due care."  That can be difficult.  But it can also be easy, such as when the doctrine of negligence per se comes into play.

When the doctrine of negligence per se applies, defendant's conduct will presumed to have been negligent with no need for plaintiff to present any further proof.  A defendant's conduct is negligent per se if:

1. The conduct violated a statute, ordinance, or regulation;
2. The violation caused the injury;
3. The statute, ordinance, or regulation was designed to prevent the type of injury that occurred; and
4. The person suffering the injury was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted.

The doctrine of negligence per se may apply when a victim is injured on a construction site (or even a home remodeling project). For example, if the wrongdoer has violated an OSHA regulation, that may be enough to prove the wrongdoer was negligent.  The victim must still show that the violation caused his injury, that the regulation was designed to prevent his type of injury, and that he was of the class of persons for whose protection the statute was adopted.  But he need not prove, as he would need to in most cases, that the wrongdoer did not exercise due care.

If a jury determines that a defendant violated a regulation, the defendant can be found negligent per se even if the governmental agency did not charge him with a violation. Therefore, an attorney investigating a client's case must conduct his own research and investigation into whether the defendant may have violated any applicable statute, ordinance or regulation. 
 

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When a jury finds that a wrongdoer is responsible for the victim's injury, then the Judge will ask the jury to decide how much money will compensate the victim for his injuries.  The law refers to the compensation award as “damages” and has divided them into two categories: economic and non-economic.

Economic injuries/damages include:

·        Past medical expenses -- the reasonable cost of reasonably necessary medical care related to the victim’s injury.

·        Future medical expenses -- the reasonable cost of reasonably necessary medical care for the victim’s medical care in the future

·        Loss of earning capacity – Past and future  loss of  – the reasonable value of the victim’s loss of the ability to earn money as a result of the injury

Non-Economic injuries/damages include:

·        Pain and suffering as previously discussed here.

·        Loss of consortium -- loss of a spouse's companionship and services discussed in more detail here.

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The spouse of a victim who has been physically injured may be entitled to compensation from whoever caused the injury. The spouse may be compensated for the following  losses of family relationship also known as "loss of consortium":

• love, 
• companionship,
• comfort, 
• care,
• assistance,
• protection,
• affection,
• society,
• moral support,
• enjoyment of sexual relations
• or the ability to have children. 

The wrongdoer who caused the injury need not compensate the victim's spouse for any of the following:

• The loss of financial support from the victim,
• Personal services, such as nursing, that the spouse has provided or will provide to the victim, or
• Any loss of earnings that the spouse has suffered by giving up employment to take care of the victim.

In California the following individuals may not recover for  the family relationship or "societal" losses due to  their loved one's injury.

• A parent may not recover relationship losses for injury to his or her child,
• Unmarried cohabitants may not recover damages for societal loss.

In the unfortunate situation where a married couple separates after the accident, the spouse of the victim may seek limited compensation (ie. the loss of assistance in parenting). 

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When a worker is injured on-the-job in California, his rights are limited by the workers’ compensation laws. Workers’ compensation is a “no-fault” system.  That means the employee is entitled to compensation from the employer's insurance carrier without having to prove the employer was at fault.   However, the workers compensation benefits are quite limited, and they seldom fully compensate an accident victim for his injuries.     

In an appropriate case, an injured worker can seek compensation for his on-the-job injury from other sources. For example:

• If a co-worker causes the injury, the injured worker may be permitted to seek compensation from the co-worker, but only (1) when co-worker’s actions are malicious with an intent to cause injury or (2) when co-worker is intoxicated.
• If someone other than the employer or co-worker (also known as third party) causes the injury, the worker may seek compensation from the third party.  The victim's lawsuit against the third party can proceed at the same time as the workers’ compensation claim against the employer.  In his third party lawsuit, the worker is not restricted to the limited benefits of worker's comp.   However, if the worker recovers against the third party, the employer is entitled to reimbursement for any benefits paid to the injured worker.

In some cases there may be multiple causes of a worker's injury and he should proceed against his employer, a co-worker and a third party.

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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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A property owner must keep his property in a reasonably safe condition. He must discover any unsafe conditions and repair, replace or warn of any condition he could expect to harm others. 

His reasonableness will be measured by the following factors:

• Location of the property
• Likelihood that someone would come on to the property as the victim did
• Likelihood of harm
• Probable seriousness of such harm
• Whether he knew or should have known of the condition that created the risk of harm
• Difficulty of protecting against the risk of such harm
• Extent of his control over the condition that created the risk of harm.

But if the city, state or the federal government owns the property, then the rules are different and getting compensation for an injury is more difficult.
 

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When you lose a family member, the loss feels immeasurable. But for your family’s claim, it’s important to think about all of the ways your life has been affected. The law permits the family of a victim to be compensated for loss of support, services and companionship.

Loss of support (the amount that the victim would have provided to you after his death):

• income
• retirement benefits
• gifts
• rent
• transportation
• food
• health care
• tuition
• entertainment

Loss of services:

• household duties which may range from piano lessons to mowing the lawn
• personal service, advice, training
• Funeral and burial expenses

Loss of companionship

• love
• care
• assistance
• protection
• affection
• society
• moral support
• sexual relations

Unfortunately, you cannot be compensated for your . . .

• grief
• sorrow
• mental anguish.

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Only certain family members are allowed to sue for the death of a loved one. Under California law, the following are allowed to sue:

• Victim’s spouse – Always
• Victim’s registered domestic partner – Always
• Victim’s parents – But if the victim was married, only when the victim left no children, or when the parents were finanically dependant on the victim
• Victim’s stepchildren – Only when the stepchildren were financially dependant on the victim
• Victim’s children – Always
• Victim’s adopted children – Always
• Unrelated children in victim’s care – Only if the child lived with the victim for the 180 days before the victim’s death and was financially dependant on the victim.
• Victim’s brothers & sisters – Only when the victim left no other relatives with a right to sue.  

The following can never sue

• Victim’s unregistered domestic partner
• Victim’s ex spouse, even when dependant on the victim
• The victim’s “common-law” spouse. 

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Most personal injury attorneys represent their clients under a contingency fee agreement.  The client pays nothing for attorneys' fees or the costs of the lawsuit until the end of the case when there is a judgment or settlement. Then the attorney is paid a percentage of the compensation recovered -- typically between 30 and 40%.  If there is no settlement and the case is lost, the client pays nothing to the attorney. 

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One of the first questions an attorney should ask, if she doesn’t already know it, “When did the accident occur?” The reason: the time for filing a claim is not unlimited. The limits are known in legal speak as “statutes of limitations”. The law provides a cut-off date for when a claim can be filed. The date will vary based upon many factors including the type of claim (personal injury, sexual molestation, medical malpractice) and the place the injury occurred. 

Generally, in California, the following limits apply:

- personal injury against a town or governmental agency - 6 months

- medical malpractice - 3 years

- personal injury or wrongful death - 2 years

- personal injury or wrongful death related to defect in construction - 4 years

For that reason it is important not to delay talking to an attorney about your potential claim.

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