California Injury Lawyer Blog

July 11, 2019

California Appellate Court Discusses How Courts Should Calculate Awards for Future Damages

by Neumann Law Group

Photo credit: Alexander Kirch / Shutterstock.com

A California personal injury case is about more than proving that the defendant was negligent and that their negligence was the cause of the plaintiff’s injuries. A plaintiff must also prove that they are entitled to financial compensation for the injuries they sustained. Some types of damages are easy to calculate because they have already been incurred, such as past medical expenses. However, future damages are harder to estimate.

Future damages are those that are designed to compensate a plaintiff for expenses or losses that will result from the defendant’s negligence but have not yet been incurred. Typically, these types of damages include future medical expenses, future lost wages, and future pain and suffering. Not only can the future value of these damages be difficult to ascertain, there can also be an issue when attempting to determining the present value of a damages award.

June 20, 2019

Court Considers Negligence Per Se Instruction for Driver Stopped Between Highway and Exit Ramp

by Neumann Law Group

Photo credit: oneinchpunch / Shutterstock.com

A California appellate court recently decided a case where the plaintiffs requested a negligence per se instruction after a driver crashed into the defendant who had stopped to the side of the highway. The semi-truck was parked in a zone between the highway and the exit ramp, known as the gore point, when the driver drove his car into the back of a truck. The driver and his wife sued the truck driver and his employer.

At trial, the court instructed the jury that it could find the defendant negligent per se for parking in the gore point under section 21718 of California’s Vehicle Code. It also instructed the jury that it could find the plaintiff negligent per se for driving into the gore point under section 21651 of the Vehicle Code. However, the court declined to instruct the jury, as the plaintiffs requested, that the defendant could be found negligent per se for driving into the gore point to park his vehicle under section 21651. At the conclusion of the trial, the jury decided that the defendant was not negligent for parking in the gore point, and the court entered judgment for the defendant.

June 13, 2019

California Court Dismisses Independent Contractor’s Workplace Injury Case

by Neumann Law Group

Photo Credit: Dale Stagg / Shutterstock.com

A California appeals court recently dismissed a personal injury case against several defendants after an independent contractor was injured at a work site. The plaintiff was working as an independent contractor that was providing maintenance engineering staff for a company that was undergoing a renovation of a water cooling tower on its premises. While on his shift, the plaintiff checked on the water level of a cooling tower by looking over the water cooling tower wall. He used a partial extension ladder which was left leaning against the tower by a subcontractor. The ladder slipped, causing the plaintiff to fall and sustain serious injuries. The plaintiff sued the landowner, the main contractor for the project, and other defendants, alleging they were liable for his injuries due to the unsafe conditions. The defendants claimed they were immune from suit because the worker was an employee of an independent contractor.

In a previous case, Privette v. Superior Court, California’s Supreme Court held that if an employee of an independent contractor hired to do dangerous work suffers an injury at work, the employee cannot recover compensation from the party that retained the independent contractor. However, there are certain exceptions to the general rule. One is if the party that hired the contractor retains control over safety conditions on the premises, negligently maintains those conditions, and affirmatively contributes to the employee’s injuries. Another exception is if the party that hired the independent contractor 1.) knew of a “latent or concealed preexisting hazardous condition” on the property, 2.) the contractor did not know of the condition and could not have reasonably discovered it, and 3.) the landowner did not warn the contractor about the hazardous condition.

May 28, 2019

Court Rejects Application of Firefighter’s Rule in Recent California Premises Liability Case

by Neumann Law Group

Photocredit: 9nong/Shutterstock.com

In a recent personal injury case before a California appeals court, the court considered whether the firefighter’s rule applied in a case involving the plaintiff’s fall at an architectural residence. The plaintiff was hired as a site representative for the defendant’s residence. A third party rented out the residence for an event. The plaintiff was giving a tour of the residence when he fell from a platform that was suspended over a hillside. He filed claims against the defendant property owner for negligence and premises liability. At trial, the property owner argued that he was protected under the “firefighter’s rule.” The court decided that the rule applied and instructed the jury accordingly, which found in the property owner’s favor. The plaintiff appealed, arguing that the firefighter’s rule did not apply in this case.

The doctrine of primary assumption of risk holds that, due to the nature of the activity involved and the parties’ relationship to the activity, the defendant does not owe the plaintiff a duty of care, thereby barring the plaintiff’s claims. The firefighter’s rule is a variation of the primary assumption of risk doctrine. The firefighter’s rule holds that a firefighter cannot hold liable members of the public who negligently started a fire. The rule also applies to police officers. The idea is that members of these professions knowingly undertake certain risks. The rule is applied to cases where the risk of injury is inherent in the plaintiff’s occupation, and the plaintiff is injured as a result of that inherent risk.

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.”