California Injury Lawyer Blog

May 9, 2019

California Court Rejects Plaintiff’s Claim of Juror Misconduct

by Neumann Law Group

Photo credit: Shutterstock/ggw

Earlier this year, a state appellate court issued a written opinion in a California car accident case discussing whether the plaintiff was entitled to a new trial based on juror misconduct when a juror failed to disclose that he had been named in two prior lawsuits as a defendant. Ultimately, the court concluded that there was no misconduct, dismissing the plaintiff’s appeal.

According to the court’s opinion, the plaintiff was rear-ended by the defendant and filed a personal injury lawsuit against the defendant. The defendant conceded liability, but disputed the causation, nature, and extent of the plaintiff’s injuries. Thus, the trial proceeded only on the issue of damages.

April 26, 2019

California Medical Malpractice Case Dismissed for Failure to Comply with Notice Requirements

by Neumann Law Group

Photo credit: Nestor Rizhniak / Shutterstock.com

In a recent California medical malpractice case, the California Court of Appeals dismissed a case after the plaintiff failed to comply with the requirements for notifying a public entity of a claim. The plaintiff claimed that a surgeon negligently performed a surgery to remove her gallbladder at a California hospital, and that she was permanently injured as a result. Evidently, the surgery was performed on February 17, 2017, and on January 31, 2018, she served the hospital with a notice of intent to file a medical malpractice claim. The hospital claimed the notice was filed late, and rejected the claim. On April 6, 2018, the plaintiff submitted an application for leave to present a late claim to the hospital, and on April 24, 2018, the plaintiff filed the medical malpractice claim in court.

Under Section 945.4 of the California Government Code, to pursue a claim against a public entity, a written claim must first be made with the entity. Under Section 911.2, in the case of a personal injury claim, the claim must be made within six months of the accrual of the cause of action. If the claim is not made within six months, the claimant can make a written application to the public entity for leave to present the claim, which must be made “within a reasonable time not to exceed one year” of the accrual of the cause of action. If the application for leave is denied by the public entity, the claimant can petition the court to hear the case.

April 12, 2019

California Court Holds National Fraternity Is Not Liable for Injuries at Frat Party

by Neumann Law Group

Photo Credit: Ganna Tokolova / Shutterstock.com

In a recent case before a California court of appeals, the plaintiff argued that a national fraternity was liable for injuries she suffered at a frat party. According to the court’s opinion, the plaintiff was injured when she fell off a makeshift dance platform at the party. The party was hosted by a local chapter of the national fraternity. She filed suit against the national fraternity for negligence, and a trial court granted summary judgment in favor of the fraternity. The issue before the court of appeals was whether the national fraternity had a duty to protect the plaintiff.

In a claim for negligence, a plaintiff must prove duty, breach, causation, and damages. Everyone normally has a general duty to exercise reasonable care to avoid injuring others. However, there is no duty to protect others from the conduct of third parties, although there are exceptions to that rule.

March 25, 2019

Liability in California Dog Attack Cases

by Neumann Law Group

Photo Credit: Victoria Antonova / Shutterstock.com

Under California personal injury law, the owner of a dog that bites or injures another person may be held liable for the injuries caused by their animal. However, the manner in which a California dog bite victim must go about in proving their case depends on the facts surrounding the accident.

There are two basic types of California dog bite cases, those brought under a theory of strict liability and those brought under the theory of negligence.

Strict Liability: Dog Bites Occurring in Public Places

California imposes strict liability on dog owners whose animals bite another person in a public place or in any other place that the victim is legally permitted to be. Importantly, this means that the dog bite victim does not need to show that the animal’s owner knew that their pet was dangerous or that the animal had attacked someone in the past.

March 11, 2019

Court Holds Minority Tolling Is Not Available for California Claims Under the FTCA

by Neumann Law Group

Photo Credit: BCFC / Shutterstock.com

The Ninth Circuit Court of Appeals (the federal appeals court for all California district courts) recently considered a case in which a plaintiff argued that his claim should have been tolled when he failed to timely file while he was a minor.

According to the court’s opinion, the plaintiff’s father died in a car accident in February 2005, when the plaintiff was nine years old. The plaintiff’s mother filed a claim against the U.S. Federal Highway Administration in May 2011, on behalf of the plaintiff and other potential beneficiaries. The claim in that lawsuit was that the highway barrier was not tested and approved according to the Federal Highway Administration’s rules. The plaintiff was sixteen years old when that suit was filed.

The Statute of Limitations Under the Federal Tort Claims Act

The Federal Tort Claims Act (FTCA) requires that plaintiffs exhaust certain administrative remedies before filing a case in court. Under the FTCA, in order for a plaintiff can bring a tort claim against the United States for the negligence of U.S. agencies and employees, a plaintiff must first file a claim with the relevant federal agency and receive a decision from that agency. Under 28 U.S.C. § 2401(b), a claim must be made to the agency within two years “after such claim accrues.” In addition, if the agency denies the claim, a claim must be presented in court within six months (beginning on the date of mailing of the denial of the claim).

February 25, 2019

Court Determines California University Is Not Responsible for Injury at Fraternity Party

by Neumann Law Group

Photo Credit: 4 PM production / Shutterstock.com

In a recent California personal injury case, a student brought a negligence claim against the University of Southern California (USC) for injuries she suffered at a fraternity party. The student, who was not attending USC, was apparently attending a fraternity party near USC and was dancing on a makeshift platform when another person bumped into her. The student fell and suffered serious injuries as a result. The student claimed that USC had a duty to protect her from an unreasonable risk of harm and that the University failed to protect her by failing to shut down or prevent the party.

The Duty of Care

A California personal injury case brought under the theory of negligence requires the injury victim to show that the defendant owed a duty of care toward the plaintiff. Generally, every person has a duty to exercise reasonable care to avoid injuring others. However, a person who does not create a risk does not typically have a duty to protect others from harm. And generally, a person does not have to protect individuals from the conduct of third parties. In certain cases, there may be a duty to protect others from the conduct of third parties, such as where someone undertakes the duty of protecting another person or where a special relationship exists.

In this case, a California appellate court held that the University did not have a duty to protect members of the public from the conduct of a third party at an off-campus fraternity party. The court acknowledged that the school has control over the campus, its rules and disciplinary measures, and campus police. However, as the California Supreme Court stated, universities have a special relationship with their students while the students are engaging in school activities—but that does not extend to “student behavior over which the university has no significant degree of control.”

February 11, 2019

California Appellate Court Dismisses Medical Malpractice Claim Based on Inadequate Expert Declaration

by Neumann Law Group

Photo Credit: Have a nice day Photo / Shutterstock.com

In a recent case, a California appellate court dismissed a plaintiff’s medical malpractice claim because the expert declaration failed to sufficiently support the plaintiff’s claim. According to the court’s opinion, the plaintiff fell and broke her wrist, and was later referred to an orthopedic surgeon. The orthopedic surgeon put the plaintiff’s wrist in a cast. The cast was removed a few weeks later, but because the plaintiff’s wrist looked slightly malformed, a splint was put on her wrist, and she underwent physical therapy. The plaintiff’s wrist did not improve, and she eventually had two surgical procedures performed by another surgeon to correct the problem.

The plaintiff sued the original orthopedic surgeon for medical malpractice based on the surgeon’s treatment of her broken wrist. She claimed that the surgeon was negligent in failing to perform or recommend surgery on her wrist, rather than placing a cast on her wrist, and that choosing to do so worsened the plaintiff’s injury. The issue before the court was whether the plaintiff provided sufficient evidence on the element of causation based on an expert declaration she submitted in support of her claim.

Expert Declarations in Medical Malpractice Cases

In California, if a plaintiff claim raises the issue of medical negligence, they must produce an expert declaration if the defendant provides an expert declaration. Otherwise, the plaintiff’s case will be dismissed at summary judgment. An expert can provide testimony if the testimony would assist the jury or judge, and if the subject is beyond common experience. To be considered, the testimony in an expert declaration must be admissible if admitted at trial.

January 28, 2019

Court Reverses Jury Verdict in Favor of City in Case Involving a Faded Crosswalk

by Neumann Law Group

Photo Credit: SHUBIN.INFO / Shutterstock.com

In a recent personal injury case before a California appeals court, the facts as explained by the court were as follows. The plaintiff sued the city and a driver after she was hit walking across a street in Salinas, California, causing her to suffer severe injuries. The plaintiff was in the crosswalk when she was hit. The crosswalk was painted in 1997 and never repainted.

By 2013, when the accident occurred, the crosswalk had faded to the point that it was almost invisible. The crosswalk was located next to private property with a shopping plaza, on which there was a driveway, bushes, pink cement leading to the crosswalk, and a stop sign. The plaintiff claimed that the city was at fault due to the dangerous condition of the city’s property.

Evidently, A Salinas city ordinance stated that the city must maintain crosswalks at intersections with the appropriate markings. At trial, the plaintiff requested that the judge give jury instructions on negligence per se based on the city ordinance. The judge refused to give the instruction, and instead gave a jury instruction requested by the city. The instruction stated in part that to find that the driveway presented a dangerous condition, the jury could not rely on characteristics of the driveway itself, and could not rely on the design elements of the intersection to find a dangerous condition existed. The jury ultimately found the truck driver was liable, but found the city was not liable, and the plaintiff appealed.

January 14, 2019

Cell Phone Use Is a Primary Cause of California Distracted Driving Accidents

by Neumann Law Group

Photo Credit: Brian A Jackson / Shutterstock.com

Texting while driving is a serious concern for drivers in California, as well as across the country. As the dangers become increasingly recognized, some are questioning the role that phone manufacturers have in texting-while-driving accidents. One of the major issues that accident victims face in this type of case is establishing what is known as “causation.”

Proving Causation in California Injury Claims

Causation is an essential element in any personal injury claim. Causation requires the plaintiff to establish that the defendant’s actions constituted the proximate cause of their injuries. This has two separate requirements: proving that the defendant’s actions were the cause-in-fact of the plaintiff’s injuries as well as showing that policy considerations support a finding of liability against the defendant. To prove cause-in-fact, a plaintiff must show that something is a substantial factor in bringing about the injury. To prove the second element of a proximate-cause analysis, a plaintiff must show that there is a sufficient connection between the defendant’s conduct and the injury, and also that the defendant should be held accountable in light of public policy considerations.

Recently, a federal district court of appeals issued a decision in a case brought against Apple due to its alleged role in a distracted driving accident.

December 21, 2018

California Court Discusses the Duty a College Has to Its Students

by Neumann Law Group

Photo Credit: 4 PM production / Shutterstock.com

For young students, schools not only serve as a place of learning, but also provide essential oversight and supervision to children who are too young to care for themselves. Of course, as students get older, they can care for themselves. However, they still spend a significant portion of their time on campus. Thus, the duty that colleges and universities have to their students is the subject of much discussion and debate.

Recently, a state appellate court issued an opinion in a California school injury case discussing the duty a state college has to its students. While the case involved the intentional conduct of another student, the most important part of the opinion was the language discussing the school’s duty to students.

The Facts of the Case

According to the court’s opinion, the plaintiff was attacked by another student with a knife. Evidently, the student who attacked the plaintiff had a documented history of mental health issues, and had explained to numerous staff members that he felt as though his fellow students were out to get him. In one example, the student claimed to have overheard fellow students plotting to shoot him.