California Injury Lawyer Blog

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.

December 10, 2018

California Court Finds College May Be Liable for Injuries Sustained by Visiting Athlete

by Neumann Law Group

Photo Credit: Denis Simonov / Shutterstock.com

Earlier this year, a California appellate court considered a case brought against a public college by a visiting athlete. The court ultimately concluded that the public college was not entitled to immunity and allowed the plaintiff’s case to proceed.

The Facts of the Case

According to the court’s opinion, the plaintiff, a student-athlete at a public college in the Los Angeles area, was participating in a volleyball tournament at another public college in California. During the tournament, the plaintiff was injured during a game when she dove into the sand and hit a rock. The athlete filed a lawsuit against the host college, alleging that she was injured by a dangerous condition on the college’s property. The host college claimed that it could not be held liable for the injury because it was protected by immunity.

Governmental Immunity

Governmental immunity prevents people from suing the government in certain situations, by making the government immune from lawsuits. Immunity is often afforded to federal, state, and local governments, as well as government-operated organizations.

November 29, 2018

California Appellate Court Discusses the Sudden Emergency Doctrine in Recent Road Rage Case

by Neumann Law Group

Photo Credit: kryzhov / Shutterstock.com

Earlier this year, a state appellate court issued an opinion in a California car accident case discussing the sudden emergency doctrine. Ultimately, the court concluded that the defendant driver was not liable for the plaintiff’s injuries because her actions that led to the collision were in response to a sudden emergency.

The Sudden Emergency Doctrine

Under California law, a motorist can be held liable for any injuries that are the natural result of their negligence. However, under the sudden emergency doctrine, a defendant’s actions may be excused if the defendant “acting with reasonable care, is suddenly and unexpectedly confronted by an emergency he did not cause.”

The Facts of the Case

According to the court’s opinion, the plaintiff was in a line of cars that were entering Highway 101. As the vehicles approached the end of the onramp, one of the cars entered the highway and sped past the rest of the line, making an obscene gesture to the motorist at the front of the line. Shortly after this, the car that had just passed the other cars slammed on the brakes, causing the other vehicles in the line to slow down.

November 8, 2018

California Court Holds Ski Resort Was Not Liable for Plaintiff’s Injuries Following Snowboarding Accident

by Neumann Law Group

Photo Credit: Fesus Robert / Shutterstock.com

Earlier this year, a state appellate court issued a written opinion in a California personal injury case involving a plaintiff’s claim against a ski resort. While the opinion discussed several issues that are pertinent to California injury claims, most interesting was the court’s discussion of liability release waivers and the doctrine of assumption of the risk.

The Factual Scenario

Per the court’s holding, the plaintiff sustained a serious injury when she ran into a snowcat at the end of a day of snowboarding at a ski resort (the defendant). Evidently, the plaintiff ran into the back of the snowcat after it made an abrupt turn, cutting her off. As a result of the accident, the plaintiff was seriously injured. The plaintiff filed a lawsuit against the ski resort claiming that it was grossly negligent.

Apparently, the plaintiff was a season pass holder at the defendant ski resort. And before the plaintiff was issued her season pass, she signed a liability release waiver. The waiver indicated that the plaintiff understood that skiing and snowboarding were dangerous sports and that she released the resort from any liability “for any damage, injury or death . . . arising from participation in the sport or use of the facilities” regardless of the cause of the accident, including the “alleged negligence” of the resort. The agreement also provided a list of hazards that should be expected, including the possibility of “collisions with natural and man-made objects, including trees, rocks, fences, posts, lift towers, snowmaking equipment, snowmobiles and other over-snow vehicles.”

October 24, 2018

California Plaintiffs Sue Breast Implant Manufacturers

by Neumann Law Group

Photo Credit: nimon / Shutterstock.com

This cases arises out of a product liability action. The plaintiffs allegedly suffered injuries after breast implants they received ruptured and leaked. Plaintiffs can recover damages from the manufacturers of defective products. As your experienced Southern California product liability attorney can tell you, California law allows recovery as long as the plaintiff proves four different elements. First, they must prove that the defendant manufactured the product. Second, plaintiffs must prove that the product was defective when it left the possession of the defendant. Third, plaintiffs must show that they used the product in a reasonably foreseeable manner. Finally, the plaintiff needs to prove that they suffered harm due to the defect.

Jurisdiction