The assumption of risk bumper car case was discussed here. A doctor seriously injured her hand when she was hit from both the rear and the front.  Head on collisions violated the park’s bumper car rules. In that discussion, the intermediate court had refused to extend the “no sports duty rule” to a non-sport recreational activity such as bumper cars – holding the park responsible for the riders injuries.

But recently, the highest court in the state disagreed.  In a bad decision for personal injury victims, the California Supreme Court ruled in favor of the amusement park and determined that the bumper car rider had "assumed the risk of injury when she participated in this recreational activity.”  Park owners and other sponsors will likely only owe a duty if they fail to provide routine safety measures.  The Court indicated that the “no sports duty rule” may be applied not only to amusement park rides but to “any physical activity not essential to daily life.

Watch out — many bumps ahead!

The California Supreme Court dealt the injured a serious blow in August when it handed down Howell v. Hamilton Meats and Provisions, Inc.  It is certainly one of the most pro-insurance company cases ever. 

Gary Simms and I collaborated on a couple of articles explaining how Howell will change the legal landscape in the years to come.  Gary Simms brings a unique perspective to the discussion.  Not only did he argue the case before the Supreme Court, but he spent nine years of his career as a senior judicial attorney writing the Court’s opinions. 

Our latest article is Supreme Court Put Plaintiffs Through the Hamilton Meat Grinder.

Here are our views on some key issues.  See the article for how we get there:

Does Howell apply only when there is a contract between the plaintiff’s medical providers and her insurer?

A: It seems so but the court’s opinion is unclear.  Plaintiff has asked the court to clarify.

How does the defendant prove that there is a contract between the insurer and the provider?

A: Unclear but plaintiff should be able to argue that oral evidence doesn’t suffice.

Who has the burden of proving what was paid or owing and what is reasonable?

A: Plaintiff will bear the initial burden of submitting evidence of the amounts paid or owing.  Evidence of reasonable value will not be sufficient.

Are billed charges relevant to noneconomic damages?

A: Generally not.

Are billed charges relevant to future medical expenses?

A: Defendants will certainly argue that they are not.  But that argument will be difficult to carry.

Is evidence of the amount paid by the insurer admissible?

A: Yes.

How is the amount paid or owing to be determined?

A: Unclear.

Do HMO patients recover no medical expenses?

A: The opinion isn’t clear.

Do malpractice victims recover nothing?

A: The opinion isn’t clear.

Is evidence of medical insurance now admissible?

A: As a practical matter, yes.

Can Howell be dealt with by post-trial motion?

A: Unlikely that a defendant would so agree.


Howell v. Hamilton Meats & Provisions, Inc.

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Last Thursday, the California Supreme Court handed down its decision in Howell v. Hamilton Meats.  The ruling favors those who cause injury to others (such as people who get into accidents while texting) over their victims. The Court decided that it is those who cause injuries, and not their victims, who will benefit from the health insurance that the victim has paid for.

I attended the oral argument before the Supreme Court back in May.  I wrote about that here.  Today, Gary Simms, who argued the case for Rebecca HowGary Simms, Appellate Specialistell, provided me his perspective on the Court’s decision.  

Q: Were you surprised by the 6-to-1 decision against the plaintiff?

A: Unfortunately, I wasn’t surprised by the result. The Court is deeply conservative (six Republican appointees) and predictably anti-plaintiff in most personal-injury cases, so I knew from the outset of being retained for the Supreme Court briefing that I would face a very uphill battle. I was working at the margins; in other words; three justices would never vote for my position, and I knew it. I expected to get Justice Pro Tem Klein’s vote, though, and she very clearly signaled it at oral argument. I hoped to get three other votes, but I knew it would be difficult.

Q: Were you surprised by the new Chief Justice’s vote with the majority after she had taken the opposite view in her Court of Appeal opinion in King v. Willmett very shortly before she was appointed to the Supreme Court?

A: Yes, but after the oral argument, I sensed that she would flip-flop, so I was only mildly surprised. I can only speculate why she reversed her position. But I think the most likely reason was that she knew her vote would not change the outcome, so she chose to join the majority to make it unanimous. (Because Justice Klein was sitting pro tem by designation, her dissent does not matter in that regard; all the permanent Justices joined in the majority opinion.) This allowed the Chief Justice to establish herself as being a collegial and open minded consensus-builder. That’s a very important quality for a Chief Justice. And perhaps

Continue Reading Howell v. Hamilton Meats: Candid Interview With Appellate Attorney Gary Simms

Maybe. A California court has ruled that the assumption of risk defense does not apply to rides at an amusement park. The guest will still need to prove her case; but the claim is not automatically barred as many would have expected.

In Nalwa v. Cedar Fair,LP.,  a guest who broke her wrist on a bumper car was allowed to proceed with her claim against Great America amusement park.  But isn’t an injury from getting bumped on a bumper car an inherent risk of the riding a bumper car? Perhaps, but the analysis goes further.

The Court explained that California laws require amusement parks to make their rides safe. If  parks can avoid responsibility by asserting theassumption of risk defense, the purpose of the laws would be frustrated. Also, the Court pointed out that sitting as a passenger on a bumper car is not a vigorous enough activity to be considered a “sport”. And, the court determined that an amusement park owner should be held to a higher level of responsibility for safety of its rides — not a lower or non-existent safety level.

The park guest assumes the risk of being frightened — expecting a thrill; not an injury.


When someone is injured during a sports activity, the one who caused the injury will likely raise a defense called "assumption of risk". The wrongdoer argues that he’s not to blame because the law didn’t require him to protect the participant from the particular risk of harm involved in the claim. Whether the doctrine applies to protect the wrongdoer depends on two factors: 1) the nature of the sport, and 2) the relationship between the parties.

For example, a golfer who suffers a brain injury when struck in the head by a sliced golf shot on the course would likely be barred from making a claim against the golf course or the golfer who made the bad shot. The risk of getting hit by a ball is inherent to the sport of golf and so the golfer, by participating in the sport, “assumed the risk”.

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.

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.

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.

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.  

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.