California Injury Lawyer Blog

January 13, 2020

Further erosion of the ban of lawsuits against gun manufacturers

Lots-of-Guns-300x200 As I explored in a previous blog, the Protection of Protection of Lawful Commerce in Arms Act, 15 U.S.C. § 7901 (2005), et seq., (“PLCAA”) has shielded gun manufacturers from suit since its enactment in 2005. The law bars any civil liability action against a firearms dealer or manufacturer, except for certain limited exceptions. My previous blog revolved around the parents of the victims killed in the Sandy Hook massacre, who survived summary judgment on a motion conceived under PLCAA filed by the defendant, Remington Arms Company. Now, the city of Kansas City is bringing a claim against a manufacturer and several firearms dealers, which may further chip away at the Act’s once impenetrable protection.

PLCAA’s protection is broad. 1515 U.S.C. § 7902 provides that “[a] qualified civil liability action may not be brought in any Federal or State court” against a firearms manufacturer or dealer. The definition of a qualified civil liability action is explored in § 7902, which defines the term broadly, encompassing ostensibly all civil claims against licensed gun dealers and manufacturers. However, § 7903(A) identifies certain claims that will not be considered a qualified action.

Contractual disputes or claims for breach of warranty are not qualified actions. § 7903(5)(A)(iv). Neither are claims related to defective design or manufacture of a firearm. § 7903(5)(A)(v). Claims arising out of negligent entrustment, where a manufacturer or a dealer puts a firearm into the hands of someone likely to injure themselves or others, are permitted. § 7903(5)(A)(ii; § 7903(5)(B). Similarly, if a manufacturer or dealer knowingly provides a gun to a person intending to commit a crime of violence or engage in drug trafficking, immunity from suit is not available. § 7903(5)(A)(i).

December 23, 2019

US Immigration System Basics

by Neumann Law Group

asian-at-computer-300x200 Immigration is a political buzzword that can be divisive in certain conversations. The debate regarding immigration policy, and the underlying statutory framework upon which the policy is executed, are innately contentious. Many people have deep, emotionally held views regarding the subject, and its mere mention can elicit a visceral response. Our beliefs regarding immigration are held in a close, even intimate, manner, as questions about immigration are questions about self-identity.

While the solution to our immigration problems—both real and imagined—may be elusive, and well beyond the scope of this blog, understanding the system in place is necessary to have a competent discussion about change. Just like any other large governmentally administered program, our migration policy arises out of laws written by the United States Congress. Prior to 1965, our immigration system was based upon quotas and was designed to favor northern and western European immigrants. That system was replaced with the passage of the Hart-Cellar Act, which created a number of categories that favor migration from individuals with existing familial or economic ties to America.

Although there are a multitude of classifications under which an immigrant can seek entrance to the United States, as a practical matter, our immigration system is based upon a handful of channels by which an immigrant can obtain a “green card”, which is an informal term referring to the card an immigrant receives when granted lawful permanent resident status. For the vast majority of cases, an immigrant will obtain lawful permanent resident status through family, as a result of employment, for humanitarian considerations, or through the diversity lottery. These categories make up more than 95% of the total number of successful immigrants.

December 3, 2019

Who is responsible when a shooting victim seeks compensation for their injury?

by Neumann Law Group

rifle-with-smoke-200x300 Regardless of one’s personal beliefs about firearms, no one disputes the power and energy in a fired bullet. When a human is struck by a fired round, the consequences can be catastrophic. When someone injures another person by shooting them unlawfully, the criminal justice system can mete out appropriate punishment, but punishment alone does not make the victim whole. Moreover, where an individual is shot by accident, the criminal justice system many not engage judicial process at all.

Whether intentional or accidental, those suffering gunshot wounds may need to turn to a civil lawsuit in order to obtain compensation. However, questions remain about what legal theories are available and who can be held responsible?

If someone intentionally shoots another person, or if the shooter acts with reckless disregard for the safety of others when discharging a firearm, it can be a crime—except under certain circumstances, such as justified self-defense. A judge will typically order an individual convicted of unlawfully shooting pay restitution, together with the prescribed incarceration and fines. However, restitution may be limited to medical bills and other economic loss without taking pain and suffering into account. Under these circumstances, a civil lawsuit for the same shooting may be necessary to be fully compensated.

November 22, 2019

The Catholic Church, Boy Scouts of America, and Public Schools lose fight against California law providing justice for survivors of childhood sexual assault

by Neumann Law Group

Prison-inside-empty-300x199 The rates of childhood sexual assault are staggering. One in every five women under the age of 18 have been the victim of a sexual assault. The rate is lower, but still unimaginably high for boys: one out of twenty. The state legislature is finally catching up with changing social norms and cultural developments surrounding sexual assault. Until the recent passing of California Assembly Bill 218, many perpetrators of sexual assault hid behind the years of silence imposed on their victims through fear, embarrassment, disbelief, and intimidation. Now, however, the laws surrounding sexual assault are changing, allowing child victims that did not bring claims in the previously prescribed 8-year window to seek justice in a civil court until he or she reaches the age of 40. In this regard, California follows New York, New Jersey, and several other states enacting similar legislation.

Individuals who were victimized and are still within the former statute of limitations period will be able to bring a claim up and until the day before they turn 40 years old. Individuals for which the statute of limitations has already run will be granted a 3-year window to file a lawsuit. For those individuals, claims that were already time-barred will be able to file their claim anytime between January 1, 2020, and December 31, 2022.

The new law also includes a provision that drew heavy opposition, and a deluge of lobbying dollars, from the Catholic Church, Boy Scouts of America, and the California public school system. Where a survivor of sexual assault can show that an organization covered up previous sexual assaults, and the survivor was subsequently assaulted—making the coverup its cause—the survivor can recover treble damages. The most publicized examples of such behavior regard the Catholic church, where leaders were aware of predatory clergy, but purposefully and systematically covered up the assaults and allowed the predators to have continued access to children. Some 800 lawsuits were filed in the weeks following the opening of the revival window. Between June 2017 and June 2018, prior to enactment of the law, the Catholic Church is estimated to have paid $301.6 million nationwide in relation to sexual abuse claims. That massive figure is poised to grow exponentially as more adults seek compensation for decades old sexual assaults.

November 14, 2019

When life gives you lemons . . .

by Neumann Law Group

road-man-broken-car-6078-300x200 Buying a car is typically a stressful, yet exciting experience for most people. That sense of excitement can quickly turn to frustration when the vehicle purchased begins having mechanical trouble. Frustration can devolve into anger when the dealer repeatedly makes ineffective repairs, sometimes delaying action or denying responsibility all together.

Each state and the federal government have enacted “lemon laws” to provide redress where a purchaser is saddled with a vehicle that doesn’t meet quality and performance standards. Unfortunately, not all situations are covered by a lemon law; moreover, every state’s, as well as the federal, version of the law is different.

Generally, lemon laws protect purchasers of new motor vehicles from defects or conditions that substantially impair the value of the vehicle and where the manufacturer has failed to resolve the problem after been given a reasonable opportunity to perform repairs. However, various jurisdictions define “new motor vehicles,” “substantial impairment,” and “reasonable opportunity to repair” in a number of ways. There are also a number of variations in the scope and breadth of relief available.

November 12, 2019

Growing safety concerns are taking a toll on foundering Juul Labs

by Neumann Law Group

Vaping-Cloud-300x225 In December of 2018, Altria, manufacturer of Marlboro products and one of the largest tobacco companies in the world, made a risky play and took a 35% interest in the vaping company Juul Labs at a cost of $12.8 billion. Over its three years of existence, Juul had climbed its way to become the dominant e-cigarette company, claiming 75% of the quickly emerging market.

On October 31, 2019, Altria cut the book value of its investment by $4.5 billion amid growing concerns about the safety of vaping. Governmental agencies have initiated investigations into several areas, including rampant use of vaping products by teenagers, concerns about health risks unique to vaping, and a string of deaths that some are attributing to vaping products. Juul has also found itself defending against several lawsuits, which are likely the opening salvo in a barrage of similar suits.

One lawsuit is a claim of whistleblower retaliation. Siddharth Breja, Juul’s former vice president of global finance, alleged the company had shipped over one million contaminated mint e-liquid pods to retailers. Breja alleges executive management refused to issue a recall despite his urging.

July 24, 2019

How California’s Comparative Negligence Law Helps Accident Victims Recover for Their Injuries

by Neumann Law Group

Photo credit: Shutterstock.com/
Jean Faucett

Many California car accidents are primarily caused by the negligence of one motorist. However, it is very common in accidents involving multiple defendants, for responsibility to rest with several parties. Under California car accident law, anyone injured in an accident can pursue a claim against any other party they believe to be responsible for their injuries, even if the accident victim is partially at fault. This is referred to as comparative negligence.

States across the country vary in how they determine which accident victims can recover for their injuries. Below are the most common types of laws:

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.