Premises Liability

August 1, 2017

California Appeals Court Reverses Ruling for City in Tree Branch Injury Case

A tree branch fell on a woman while she and her boyfriend were walking through Mission Bay Park. She filed suit against the City of San Diego, alleging the existence of a dangerous condition on public property, namely a negligently maintained eucalyptus tree. The city prevailed on summary judgment, arguing that the woman was struck by the tree branch while standing on a trail; thus, the city could not be liable, pursuant to Government Code section 831.4 (trail immunity). The woman appealed. First, she asserted that trail immunity does not apply under the facts of this case. To this end, she emphasized that her claim of a dangerous condition was based on a negligently maintained eucalyptus tree, rather than the condition of the trail passing through the park. Second, she contended that even if trail immunity did apply, a disputed issue of material fact existed as to where she was located when the branch struck her. The Fourth District Court of Appeal agreed. The woman’s claim in this case did not give rise to trail immunity. In addition, there was a disputed issue of material fact as to where she was when the branch struck her. Thus, the appeals court reversed.

The appeals court therefore first outlined the applicable law. The complaint alleged a single cause of action for a dangerous condition of public property. Pursuant to section 830(a), a dangerous condition of public property means a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used. The elements for that cause of action are: (1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it or a failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff’s injuries; and (5) compensable damages sustained by the plaintiff.

The woman argued the city managed and maintained both Mission Bay Park and the trees within it, including the eucalyptus tree whose branch fell on her. She claimed that between 2004 and 2013, a city employee actively and negligently trimmed the tree’s branches, removing low-hanging and hazardous branches. According to her, the city created and was aware of a dangerous condition on public property, namely the negligently maintained branches of the eucalyptus tree. As a result, she alleged the city was liable for the harm caused by the falling branch.

July 12, 2017

San Luis Obispo Fraternity Under Fire

by Neumann Law Group

A February lawsuit filed in San Luis Obispo (“SLO”) Superior Court claims that a member of a California Polytechnic State University (Cal Poly) fraternity chased the plaintiff into a glass panel in the fraternity house. The negligence lawsuit against the fraternity, Alpha Gamma Rho, seeks damages exceeding $25,000. This is one of many controversies in which the fraternity has been involved in recent years.The plaintiff was a visitor at the Alpha Gamma Rho fraternity house in 2015. When she tried to leave, an unnamed fraternity brother began to chase her to prevent her from exiting the house. She mistook the floor-to-ceiling glass pane for a door and ran through it, causing “severe” but unspecified injuries. Since she was being chased, she alleges, she was forced to make a split-second decision, which contributed to the accident.

June 8, 2017

Southern California Tourist Suing Planet Hollywood in Vegas for Mannequin Scare Injury

by Neumann Law Group

A Southern California man recently filed a lawsuit for negligence and assault against a Las Vegas hotel, claiming a mannequin inside his hotel room frightened him and caused him to suffer injuries while fleeing.The plaintiff filed the lawsuit against Planet Hollywood Resort and Casino in Clark County District Court. He is seeking over $10,000 in damages.

May 17, 2017

California Appeals Court Holds PG&E Not Immune From Liability Following Power Line Injury

by Neumann Law Group

A 12-year-old severely injured by a 75-foot tree that fell on his tent while he was camping sued PG&E, which owned and maintained a power line in the San Mateo County Memorial Park. The trial court denied the company’s motion for summary judgment under the state’s recreational use immunity statute, codified by California Civil Code section 846. Section 846 grants property owners immunity from tort liability stemming from the use of their property for recreational purposes. The First District Court of Appeal held the company was not immune from suit because the camper paid a fee to San Mateo County.The tree was located approximately 30 to 40 feet from PG&E’s power line, within striking distance of the line had it fallen in that direction. PG&E owned and maintained a power line in the county park, and it had a license allowing it to enter the park for the maintenance and inspection of its equipment. The boy’s family paid a fee to enter the park but did not pay PG&E. However, San Mateo County paid PG&E regularly for electricity.

February 6, 2017

California Appeals Court Reverses Grant of Summary Judgment to Defendant Landlords Following Tenant Fall

by Neumann Law Group

Appellant F.G. sued her landlords A.N. and N.Z. for negligence after she allegedly tripped on the metal “nosing” of a step and fell down a stairway in a common area of her apartment building. The trial court granted defendants’ motion for summary judgment, finding they lacked actual or constructive notice of any dangerous condition on the property and therefore did not breach their duty to exercise ordinary care. The appeals court reversed, concluding the record contained triable issues of material fact regarding whether the stairway constituted a dangerous condition and whether defendants had actual or constructive knowledge of such condition.

At her deposition, F.L. testified that on the morning of November 25, 2011, she left her apartment and started to walk down the stairway leading out to the front of the apartment building. As F.L. was stepping off the second or third step from the top of the stairway, her left foot caught on the metal strip or “nosing” at the edge of the step, causing her to fall and injure herself. F.L. had lived at the apartment building for approximately three years prior to the accident, and never had any problems with the stairway before her fall. She had never complained nor was she aware of anyone else complaining about the stairway.

December 8, 2016

California Appeals Court Affirms Grant of Summary Judgment to Defendant Restaurant Following Slip and Fall

by Neumann Law Group

Shortly after unknown individuals removed a snow grate in front of a door at Whiskey Creek Restaurant in Mammoth Lakes (the restaurant), plaintiff Edgar Ward Jones walked out the door and fell through the opening in the deck. Jones sued defendant Whiskey Creek Restaurants, Inc. (the owner) for negligence and premises liability. Greg Alexander was the sole shareholder of the owner.The owner moved for summary judgment, arguing there was no evidence it breached any duty of care owed to Jones or that any breach proximately caused an injury to him. The trial court granted the motion, finding that video evidence showed the snow grate was removed 9 to 10 seconds before Jones fell through the opening, giving the owner insufficient time to protect Jones. The trial court also explained that foreseeability is a crucial factor for determining the scope of the duty of care. Since there was no evidence the snow grate had ever been removed by third parties before, the trial court held the removal of the grate was not sufficiently foreseeable to impose a duty on the owner to take additional preventative measures. The California Court of Appeal for the Third Appellate District affirmed.

June 8, 2016

California Appellate Court Upholds Ruling for Defendants in Fatal Skateboarding Accident Lawsuit

by Neumann Law Group

The California Court of Appeal for the Third Appellate District recently upheld the lower court’s grant of summary judgment for the defendants following a skateboarding death, based on the doctrine of primary assumption of risk.Brett Bertsch died while using a skateboard in Mammoth Lakes, a resort community. His brother and he were traveling downhill at a fast speed and without helmets when the front wheels of Brett’s skateboard hit a gap between the paved road and a cement collar surrounding a manhole cover. As a result, Brett was thrown off the board. He suffered brain trauma and unfortunately eventually passed away from his injuries.

May 9, 2016

California Supreme Court Holds Special Statute of Limitations Applies to Negligence Action Against Hospital

by Neumann Law Group

The California Supreme Court recently held that the special limitations period for professional negligence actions against health care providers — rather than the general personal injury limitations period — applied to a negligence action brought by a patient injured after falling from a hospital bed.According to section 335.1 of the California Code of Civil Procedure, a personal injury action generally must be filed within two years of the date of the incident. However, a special statute of limitations applies to actions “for injury or death against a health care provider based on such person’s alleged professional negligence.” Unlike most personal injury actions, professional negligence actions against health care providers must be brought within three years after the date of the injury or one year after the plaintiff’s discovery of the injury by reasonable diligence, whichever occurs first.