Guest authorVeronica Benigno Guinto, an immigration attorney in the San Francisco Bay Area answers:

No. The Fourteenth Amendment’s guarantees of due process and equal protection of the law protects U.S. citizens and non-citizens alike. The term “person” under the Amendment encompasses U.S. citizens, lawfully admitted resident aliens, and even aliens whose presence in this country is unlawful. While here, every person whether present in the U.S. lawfully or unlawfully, is entitled to equal protection of the laws. Thus, an injured person has a right to seek redress in U.S. courts, regardless of immigration status. 


California law adopts this view. “For purposes of enforcing state labor, employment, civil rights, and employee housing laws, a person’s immigration status is irrelevant to the issue of liability….” For example, the California Legislature has explicitly applied all protections, rights, and remedies available under the California Labor Code to all individuals – citizens and aliens – who have applied for jobs or who have worked and been employed in the State. While the Legislature has yet to be as explicit in the area of personal injury, it is notable that there has been at least one California reported case holding that evidence of a patient’s immigration status is irrelevant when he sues a doctor for medical malpractice.

What does this all mean? In general, whether a person is in the United States lawfully or unlawfully, immigration status should not preclude one’s right to file a lawsuit in a U.S. (or California) court to recover damages for personal injuries sustained.

Mrs. Guinto has been following the Asiana 214 crash and kindly offers her insights on the rights of non-citizens to sue in California

 May a pet owner recover for emotional distress when another intentionally injures his pet?  It depends.  While in other states pet owners may recover for emotional distress, up until last month California courts only allowed juries to award economic damages to a pet owner and refused to award an owner for his emotional distress including pain and suffering related to his pet’s physical injuries. But recently, the Court determined that an owner can recover under a theory of trespass.  

Under the law of trespass, dogs are considered personal property and trespass to personal property allows recovery for intentional interference of personal property causing injury including emotional distress.  In the recent case the jury awarded the dog owners about $2800 for the amount of the veterinarian bills and an additional $50,000 for emotional distress to the dog owners.  This decision stated:  “the affection of a master for his dog is a very real thing and . . . the malicious destruction of the pet provides an element of damage for which the owner should recover, irrespective of the value of the animal.”

 

Generally, no.  Sports have inherent risks.  An instructor or coach generally is not responsible for injuries to players if the risk of the injury is inherent to the sport.  Holding a coach responsible for such injuries may have a chilling effect on the sport or activity.  The coach must be allowed to urge the athlete to strive to excel or to reach a new level of performance.  But a coach has a duty not to increase the risk of injury by encouraging or allowing the athlete to participate in the sport when the athlete is physically unfit to participate or by allowing the athlete to use unsafe equipment or instruments.  

For example, an equestrian trainer was held responsible when he forced a student rider to train on a lame horse and the rider was injured during a fall.  Similarly, a baseball coach would be responsible to an injured player if he knowingly supplied faulty equipment such as a batting helmet or catching gear.  In those cases, although the injury may be “accidental”, a coach or trainer may be held responsible because his conduct increases the risk to his athletes.

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.

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 Mug Shot 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.

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.

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.
 

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.
 

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.  

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.