Slip & Fall

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.

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.

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.”

December 8, 2017

California Appeals Court Holds Subrogation Includes “All Benefits” Paid by Employer in Slip & Fall Indemnity Case

by Neumann Law Group

A plaintiff sued Wal-Mart for injuries she sustained at one of Wal-Mart’s stores while acting within the course and scope of her employment with Acosta, Inc. The trial court found Wal-Mart liable for the plaintiff’s injuries. Under California Labor Code sections 3852 and 3856, appellant Hartford Accident & Indemnity Company (Hartford) applied for a lien on the plaintiff’s judgment to obtain reimbursement for the California workers’ compensation benefits it paid her. Although the judgment included compensation for her medical expenses, it did not include compensation for her lost wages. The court granted Hartford a lien on the judgment but reduced the lien amount.In August 2012, the plaintiff was working for Acosta when she fell and injured herself on Wal-Mart’s premises. Hartford was Acosta’s workers’ compensation insurer and paid the victim more than $152,000 in benefits, including more than $115,000 in medical expenses and roughly $37,000 in temporary disability indemnity for her lost wages.

In July 2014, following a three-day bench trial, the court found Wal-Mart 100 percent at fault and entered judgment against Wal-Mart for $355,000, including $178,000 in past medical expenses, $102,000 in future medical expenses, and $75,000 in past and future pain and suffering. Although the complaint sought lost wages and earning capacity, the court did not award her damages for these items because she did not ask for them at trial.

Hartford filed a notice and application for a lien on the judgment, based on the workers’ compensation benefits it paid to the victim. The trial court issued an order to show cause why it should not grant the requested lien. The plaintiff filed an opposition, arguing the court should reduce the lien amount by the nearly $37,000 Hartford sought for the temporary disability benefits it paid because she did not present evidence regarding those payments at trial, and therefore the court did not award her that amount as damages.

September 20, 2017

California Appeals Court Upholds $5,000 Non-Economic Damages Award Following Slip & Fall

by Neumann Law Group

A plaintiff brought a lawsuit against Valencia-Penales Care Services, Inc. and two individuals in connection with injuries she incurred from a fall. The matter proceeded to a jury trial. The plaintiff appealed from a judgment and order denying her motion for a new trial, contending that the non-economic damages she was awarded by the jury were inadequate. The California Court of Appeal for the First District disagreed and affirmed the judgment.In January 2015, the plaintiff was living alone in an apartment at Redwood Retirement, an adult living facility. She was 91 years old, suffered from macular degeneration, and at times used a cane or walker. She fell while getting back into her car after visiting the store with her caretaker. One of the issues at trial was her mental and physical condition before and after her fall.

The jury found no negligence on the part of the individual defendants, but it rendered a verdict for the plaintiff on her negligence claim against Valencia-Penales. The jury apportioned 45% of the responsibility for her harm to Valencia-Penales. It awarded the plaintiff her requested past economic damages totaling $44,506.65, future economic damages in the amount of $126,000 for caregiving services, and $5,000 for non-economic damages.

On appeal, she maintained that the jury’s award of $5,000 for non-economic damages was inadequate because (1) she suffered significant injuries when she fell, and (2) she lost her independence and quality of life.