Recently in Tort Liability Category

Does the alleged defective design of car's seat allow application of " consumer expectation" test, engineer strict-liability, and non-apportionment of general damages among designers?

seat-424212-m.jpgIn Romine v. Johnson Controls, Inc. (filed 3/17/14) B239761, the chain collision caused by a speeding vehicle crashing into a line of vehicles stopped at an intersection resulted in the striking of plaintiff's vehicle, rendering her a quadriplegic. The force of the collision caused plaintiff's seatback to collapse and her head violently struck the vehicles back seat. Parties sued by plaintiff included the manufacturer of the car seat and the engineering company which participated in the design of the Nissan Frontier vehicle's driver's seat. Other defendant-parties settled before trial. Plaintiff tried the case on the theory of strict product liability alone. The jury found these remaining defendants 20% responsible, with total verdict of $24.745 million; the trial court entered judgment against them in the sum of $4.607 million.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients, clients or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this blog contains general information and may not reflect current legal developments, verdicts or settlements. The Firm expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this blog.

On appeal, the instant defendants contended (1) the trial court erred in permitting plaintiff to try the case under the consumer expectations design defect test;(2) the component parts doctrine precluded a strict liability finding; (3) the provider of engineering services could not be held strictly liable; (4) apportionment of fault should have been allowed among other manufacturers; and (5) the full billings of past medical care were erroneously admitted. The Court of Appeal, Second Appellate District, Division Five, while disagreeing with contentions (1), (2) and (5), reversed and remanded the matter for a partial retrial because the engineering company could not be strictly liable for its services, and the seat manufacturer was entitled to an apportionment of fault with the others within the stream of manufacture, as well with other defendants found by the jury to be a substantial cause of plaintiff's injuries.

First, the appellate court found the consumer expectation test was properly put before the jury. Defendant argued that the jury should have only been allowed to consider the risk/benefit test. Under the consumer expectation test, the objective condition of the product (the seat) is evaluated by the jury to see if its design meets a consumer's ordinary expectation of safety under the circumstances, regardless of the merits of the design. Such a test should not be used by a jury where the theory of defect seeks to examine "obscure components under complex circumstances." (McCabe v. American Honda Motor Co. (2002) 100 Cal.App.4th 1111, 1122.) The Court of Appeal found this not to be a matter of a component part at all, the seat itself being a product; furthermore this was not matter so complex as to render the jury incapable of assessing. Consumers have expectations about whether a vehicle's driver seat will collapse in a rear-end collision.

Next, the court ruled that because the engineering company did not "manufacture, sell, or otherwise place the car seat into commerce", it could not be held strictly liable. It could be liable for negligence, which was a cause of action in plaintiff's complaint; but plaintiff chose only to try the case on the strict liability theory.

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Where law exempts requirement, may owner who rents out a residence be liable for failure to install self-closing door latch of door leading to swimming pool where minor guest of tenant drowned?

Pool.jpgIn Johnson v. Prasad (filed 2/25/14) 2014 DJDAR 2325, homeowners (the Prasads) bought a home in 2000 which had a 14-year-old pool in the backyard. A six foot fence blocked access to the pool, except from the interior of the home via a kitchen sliding door. That door had a security gate, but lacked a self-closing mechanism. California law requires (since 1996) that new and remodeled pools either be fenced or otherwise have self-closing mechanism at entry points; existing pools are otherwise exempt. (Health & Safety Code section 115922.) In 2009, the residence was occupied by renters, who hosted a party at the home. Among their guests were four-year-old Allen, his father and grandmother. The group left the pool area to go into the house; grandmother left the security door open as others were still coming in. Grandmother lost track of Allen after he went into the house. Unfortunately, Allen went back outside into the pool area unnoticed, and drowned in the pool.

Allen's mother sued for Allen's wrongful death; the Prasads were named among other defendants. The Prasads' motion for summary judgment was granted by the trial court; that court found no triable issues of fact remained with respect to breach of any duty and causation. The Court of Appeal, Third Appellate District, reversed, finding as a matter of law that the homeowners owed a duty of care to protect the child from drowning in the home's pool, and that there were triable issues of fact as to whether the failure of the owners to install a self-closing mechanism was a substantial factor in casing the child's death.

In its opinion, the appellate court analyzes policy considerations involved in determining duty and causation in the context of the above-cited Swimming Pool Safety Act. More specifically, it examined the burden and consequence of imposing a duty of care here. The trial court had found that the Prasads were not negligent per se with respect to failing to install a self-closing mechanism as they were exempt from that requirement. But the Court of Appeal sees the statute as having a broader applicability: that the Act reflects a policy of this state to impose some responsibility on certain homeowners to prevent swimming pool drownings; the extent and burden on even exempt homeowners is slight, in the court's view, when compared with the benefit to the community in saving lives.

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May server of alcohol at a fee-generating event be liable for the vehicular tort committed by an obviously intoxicated paying minor?

Social hosts furnishing alcohol generally enjoy immunity from liability as not being the proximate cause for injuries caused by an intoxicated guest. (Civil Code section 1714 (b).) However, this immunity is not available for a server falling within Business and Professions Code section 25601.2, which provides that a person not required to have a liquor license may be held liable if a sale of alcohol to an obviously intoxicated minor occurs.

The critical question for the California Supreme Court in Ennabe v. Manosa (filed 2/24/14) S189577 was whether the circumstances there constituted a sale within the meaning of section 25601.2. Manosa hosted a party at her parent's vacant rental residence, paying for a disc jockey to play music, and providing $60 worth of alcoholic beverages, as well as cups and cranberry juice. Two of Manosa's friends paid for a portion of the initial purchase of alcohol. A number of guests were invited to the party free of charge. She asked a friend to act as a "bouncer" at the side gate entry to the party, instructing him to charge uninvited guests $3 to $5. Thomas Garcia was among those who paid an entrance fee. Once $50 to $60 had been collected, those funds were use to purchase additional alcohol. Garcia, a minor, as were most of the people at the party, had 4 shots of whiskey before arriving at the party and continued to consume the provided alcohol once there. Ennabe, a late-arriving invited guest, escorted the unruly Garcia to Garcia's car. The intoxicated Garcia ran over Ennabe, killing him.

In the wrongful death action brought by Ennabe's heirs, Manosa was granted summary judgment in the trial court on the defense of civil immunity; the Court of Appeal affirmed. The Supreme Court reversed based on the liability provision of section 25601.2.

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Does employer owe preconception duty-of-care to child of employee for harmful work environment, and is "duty" necessary to prove strict liability?

office-supplies-2-892172-m.jpgIn El sheref v. Applied Materials, Inc. (filed 1/27/14) H038333, the father of the plaintiff minor worked as an engineer at defendant's semiconductor manufacturing facility. Father's duties included working with tools containing mercury and ethylene glycol and being exposed to ionizing radiation. Defendant provided information, training, and medical advice to employees to assess and reduce potential workplace hazards. At one point, father was examined by a physician to authorize his wearing of a respirator at work; that examination included a questionnaire that posed, among its inquiries, some questions about his reproductive history. At another point, a report was completed by employer concerning whether a subject tool leaked mercury. No mercury was detected, according to the report, but the report went on to direct measures for limiting employees' skin from mercury exposure. Minor's mother conceived and gave birth to him during father's employment.

Minor was born with birth defects, alleged in his lawsuit to have resulted from father's exposure to reproductively toxic chemicals. The lawsuit further alleged that defendant knew or should have known of this danger, and failed to adequately protect its employees; that serious injury was a probable result to employee's future children. The causes of action asserted were negligence, strict liability/ultrahazardous activity, willful misconduct, misrepresentation and strict products liability. In the trial court, defendant moved for summary adjudication arguing that no legal duty was owed to minor for preconception injuries; only medical professionals and manufacturers related to conception/pregnancy owe such a duty of care. The trial court agreed. Through his guardians, minor appealed.

The Court of Appeal, Sixth Appellate District, concluded defendant employer did not owe a preconception duty to minor; however, because minor's strict products liability claim did not require the proof of duty, the court reversed the judgment with directions to the trial court to reinstate that cause of action.

A cause of action for a preconception tort was recognized by the California Supreme Court in Turpin v. Sortini (1982) 31 Cal.3d 220; the court narrowly limited such liability to negligent medical treatment of a mother during pregnancy or before conception. Liability was sought to be extended to a motorist who caused an accident that injured a mother years before she gave birth to a child born with a health defect in Hegyes v. Unjian Enterprises, Inc. (1991) 234 Cal.App.3d 1103. The Hegyes court found no liability could arise because defendant's conduct was not inextricably related to an inevitable future pregnancy, and there was neither a special relationship nor foreseeable injury.

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May an employer who requires employee to use her vehicle be liable for employee's negligence en route to personal business in the course of driving home?

September 30, 2013

In Moradi v. Marsh USA, Inc. (filed 9/17/13) 2013 DJDAR 12540, Judy Bamberger worked as a salesperson-marketer for Marsh, an insurance broker. She was required to use her personal vehicle under a "car allowance" program; two to five times a week she would use it primarily for off-site appointments, meetings, and transporting Marsh executives and clients. On April 15, 2010, Bamberger drove herself and other employees to a company-sponsored program at a middle school. She returned to the office to end her work day. From the office she planned to stop on her way home at a yogurt shop to get a bite to eat and then go to a yoga class. As she made a left turn into the yogurt shop, she collided with a motorcyclist, Moradi.

Moradi sued both Bamberger and employer Marsh. On the ground that employee Bamberger was not acting within the scope and course of her employment, the Los Angeles County trial court granted summary judgment in favor of Marsh. Moradi appealed. The Court of Appeal, Second Appellate District, Division One, reversed, finding that because the employer required employee to use her personal vehicle, the employer could be liable for this act committed while she was commuting home from work; her planned stops did not change the incidental benefit to the employer, nor were the planned stops unforeseeable, substantial departures from the employee's commute.

The court here had no problem finding a required use, and suggested that even an implied requirement may suffice. The focus here is on foreseeability, which, as a test for an employer's vicarious liability, merely means that the particular enterprise is not so unusual or startling that it would seem unfair to include the resulting loss from the costs of the employer's business. (Lazar v. Thermal Equipment Corp. (1983) 148 Cal.App3d, 458, 463-467.)

In its argument to the appellate court, Marsh apparently relied on the "special errand" exception cases to claim that because this case did not fall within that exception, the "going and coming" rule would preclude liability. The court did not buy the argument, stating that exception is "different from and more narrow than the required-vehicle exception." In other words, plaintiff did not need to show that employee was preforming a special errand for the employer. Once it was established that employee was required to use her vehicle, plaintiff need only demonstrate that employee's after-work activities planned as a part of her drive home were foreseeable as defined above.

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May employer who served alcohol at company party be vicariously liable for intoxicated employee's tortious conduct after he had reached his home?

employee Party.jpgIt has long been black-letter law that an employer may be held vicariously liable for torts committed by an employee acting within the scope of employment. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 208.) But in the context of an employee consuming alcohol during an employer party, must the act of negligent driving occur while the employee is still within the scope of employment? Or is the fact that employee's consumption of alcohol occurred during an employment event sufficient to cause employer liability for employee's driving beyond the scope of employment while still under the influence of the alcohol earlier consumed? In Purton v. Marriott International, Inc. (filed 7/31/13) 2013 DJDAR 10154, the Court of Appeal, Fourth Appellate District, Division One, held that an employer may be found liable for its employee's torts as long as the proximate cause of the injury (in the court's view, alcohol consumption) occurred within the scope of employment.

In Purton, employee Landri, himself a Marriott bartender, consumed alcohol at an employer-hosted party and became intoxicated. Another employee drove him to the party and evidently drove him to his home afterwards along with yet another coworker. Without consuming any more alcohol, Landri then left his home to drive that coworker home. He struck another car, killing the driver. In the wrongful death action asserting vicarious liability against employer Marriott, the trial court granted summary judgment for Marriott on the ground the employer's potential liability under the doctrine of respondeat superior ended when the employee arrived home. The Court of Appeal reversed, holding as stated above.

The appellate court acknowledged that the plaintiff bears the burden of proving the employee's tortious act was committed within the scope of employment. But this form of liability is not dependent on any act of the employer for which it may be at fault. Rather, it is based on the tort being an outgrowth of the employee's employment. And while the employer is not normally responsible for the employee's "going and coming" from a workplace event, if the tortious act itself occurred at the workplace event, the employer is responsible for foreseeable events that occur thereafter. Foreseeability in the context of respondeat superior merely means the "employee's conduct is not so unusual that it would not be unfair to include the loss as among other costs of the employer's business." (Farmers Ins. Group v. County of Santa Clara (1995) 1 Cal.4th 992, 1004.)

On the question of whether the accident itself must occur within the scope of employment, the Court of Appeal looked to six other jurisdictions, finding those states equally divided on the question. It additionally explored analogous situations in California that found that driving from the event was essentially foreseeable, thus within the scope of employment where sufficient facts supported intoxication occurring during employer's business-related event. In particular, the court in Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 805, 806 found an employer liable for actions of off-duty employees, when the employer provided alcohol and permitted drinking at the workplace "even where the danger may manifest itself at times and locations remote from the ordinary workplace."

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Manufacturer of grinder has no liability for nor duty to warn of grinder's use with blade expressly excluded from intended use of grinder.

Manufacturer.jpgIn Sanchez v. Hitachi Koki, Co., Ltd. (filed 7/9/13) 2013 DJDAR 8970, plaintiff sued the manufacturer of a grinder for personal injuries resulting from plaintiff's use of a saw blade manufactured by a third party. The grinder's safety manual and instructions expressly warned that saw blades should not be used with the grinder. Plaintiff was trying to grind down a truck tire. When the grinder he was using did not get the job done, plaintiff went to a hardware store (sued also) to get a bigger grinder, one manufactured by defendant Hitachi. Plaintiff alleges that a store employee recommended that a Razor Back tooth saw blade be used with the grinder. Plaintiff did so, and when the saw blade came in contact with the tire, he lost control of the grinder, cutting his left hand.

Hitachi moved for summary judgment, relying on O'Neil v. Crane Co. (2012) 53 Cal. 335. (See discussions on this blog dated June 1, 2012.) The California Supreme Court stated in O'Neil that a manufacturer has no duty to warn about another manufacturer's product even if it was forseeable that the two products would be used together; this defendant's product would have to contribute substantially to the harm in order for there to be liability. The trial court agreed with Hitachi and granted summary judgment. On plaintiff's appeal, the Court of Appeal, Second Appellate District, Division Four, affirmed.

Plaintiff argued that O'Neil is distinguishable because the grinder itself was defective on three bases: (1) Hitachi's grinder lacked "kickback" protection, (2) this particular blade and other common circular saw blades fit the grinder, and (3) there was no applicable warning on the grinder itself. The appellate court disagreed quickly dispatching this argument as follows: (1) the product was not designed or intended to be used with a blade and in fact warned against such, even though Hitachi had no duty to warn, thus the question of kickback protection is irrelevant and such a requirement would be contrary to public policy; (2) likewise irrelevant is the fact that blades could fit into the grinder because manufacturer's intended use rather than mere compatabilty is the appropriate question; and (3) the adequacy of the warning given by Hitachi is irrelevant as it had no duty to warn. In sum, there was no evidence that any conduct of Hitachi contributed substantially to the harm caused to plaintiff, thus the O'Neil rule applied.

I see the appellate court here saying to litigants the Supreme Court meant what it said in providing that a manufacturer, as a matter of public policy, cannot be expected to warn about other products for which it is not responsible. One should have a viable theory of liability before suing any party within sight. In Sanchez, the plaintiff will have his day in court against the seller who allegedly recommended the use of the blade in the manner in which it was used.

The information contained in this blog is provided for informational purposes only, and should not be construed as legal advice on any subject matter. No recipients, clients or otherwise, should act or refrain from acting on the basis of any content included in this blog without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from an attorney licensed in the recipient's state. The content of this blog contains general information and may not reflect current legal developments, verdicts or settlements. The Firm expressly disclaims all liability in respect to actions taken or not taken based on any or all the contents of this blog.

Can the alleged reckless failure of outpatient treating medical professionals to refer elder's case to vascular specialist constitute elder abuse?

Outpatient.jpgIn Winn v. Pioneer Medical Group, Inc. (published opinion filed 5/24/13) B23712, the 83-year-old patient of the defendant medical group died in January 2010 from blood poisoning after emergency vascular surgery was unsuccessful in stemming her long-term vascular impairment. She had been treated by defendants for about 10 years, and she was under their sole medical care for about 3 years. In 2007, although she was diagnosed with peripheral vascular disease, defendants failed to refer her to a vascular specialist. Even as her condition worsened while under their care up to several months before her death, according to the amended elder abuse complaint filed by her heirs, defendants recklessly "failed to provide such needed medical care to [decedent] under circumstances where [d]efendants . . . knew the health and well-being of [decedent] depended on such care."

Defendants twice demurred; the demurrer to the amended complaint was sustained without leave to amend. The trial court (Los Angeles Superior Court) concluded plaintiffs "failed to provide facts showing that the defendants denied the decedent needed care in a reckless sense as is required for a violation of the Elder Abuse Act . . . Instead, the allegations describe professional negligence and incompetence. . ." The Court of Appeal, Second Appellate District, Division Eight, in a 2-1 opinion, reversed. The majority found that the elder abuse statute does not limit liability to health care providers with custodial obligations, and the question of recklessness should be left for a jury to decide.

Welfare & Institutions Code section 15657 is the operative provision of the Elder Abuse Act in play here. That section states: "Where it is proven by clear and convincing evidence that a defendant is liable for physical abuse . . . , or neglect . . . , or fiduciary abuse . . .[of an elderly or dependent adult] and the defendant has been guilty of recklessness . . . in commission of this abuse, the following shall apply in addition to all other remedies provided by law: (a) [t]he court shall award to the plaintiff attorney's fees and costs." Additionally, where the elderly person dies, the plaintiff heirs are exempted from the exclusion of pain and suffering damages (allowed up to $250,000 under Civil Code section 3333.2). As to whether outpatient care is covered by this statute, two provisions provide potentially different interpretations: Section 15610.57 makes reference to "any person having the care or custody of the elder;" Section 15610.07 defines "abuse" as concerning "care custodians." Section 15657.2 excludes liability for acts of "professional negligence" brought against a health care provider.

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When should a "negligence per se" jury instruction be given and what is the impact of the giving or not giving?

Jury-Box.jpgThere is a popular notion that if a party has violated a statute, legal liability necessarily flows from that violation. Not always so. Spriesterbach v. Holland (filed 4/9/13) 2013 DJDAR 4567 discusses some of important nuances concerning this subject.

Plaintiff rode his bicycle on a sidewalk in the direction opposite the direction of vehicular traffic on the adjoining roadway. He approached a supermarket parking lot to his left where he saw defendant's automobile stopped at the threshold of the sidewalk and parking lot. A hedge and wall separated the sidewalk from the parking lot with an opening at the driveway. Defendant did not see the bicycle as she edged over the sidewalk/driveway and onto the roadway, resulting in a collision that injured plaintiff. Plaintiff sued and the case was tried to a jury. At trial, each side claimed that the other was in violation of the California Vehicle Code.

Vehicle Code section 21804, on which plaintiff proposed a negligence per se instruction be given to the jury, provides that one exiting property to enter or cross a highway shall yield the right-of-way to traffic close enough to constitute a hazard; however once that driver has yielded until it is reasonably safe, other drivers shall yield. The trial court refused to give plaintiff's proposed instruction.

Vehicle Code sections 21605 and 21650.1, on which an instruction was given by the court over plaintiff's objection concerning the question of plaintiff's contributory negligence, provide that bicycles may be ridden on sidewalks; when bicycles are ridden on a roadway or shoulder of a highway, the bicycle shall be operated in the same direction as vehicles are required to be driven.

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Does a third party's criminal conduct of throwing concrete down onto a freeway relieve truck manufacturer's duty to design windshield to protect against such flying objects?

freeway.jpgIn Collins v. Navistar, Inc. (filed March 29, 2013) 2013 DJDAR 4169, a juvenile was throwing chunks of concrete from a freeway overpass onto the freeway, hitting a number of vehicles. One such vehicle was that of plaintiff's deceased spouse, William Collins; a two and a half pound chunk penetrated the windshield and hit William in the forehead, causing severe brain injuries and causing his Navistar truck to crash into a wall. Among those sued was Navistar for product liability on the theory the windshield was defective. Navistar contended it need not anticipate third party criminality when it designed its product. The trial court agreed to the extent that it instructed the jury that, based on a heightened standard of foreseeability, Navistar could be liable only if it foresaw or should have foreseen that a third party would act in this particular manner.

Based on such instruction, the jury reached a verdict on the preclusive issue of duty: the signed verdict form read that Navistar could not "have known or reasonably foreseen that a person would likely take advantage of the situation created by Navistar's conduct to commit" an act like the juvenile's rock throwing. Plaintiff appealed the judgment in favor of Navistar. The Court of Appeal, Third Appellate District reversed.

The appellate court found that language of the instructions and verdict forms given over the objection of plaintiff, even though taken from standard instructions, did not properly adapt from premises negligence law to products liability. As the California Supreme Court stated in Soule v. General Motors ( 1994) 8 Cal.4th 548, 560, in strict products liability cases, truck manufacturers must anticipate that their vehicles will be involved in traffic accidents generally. The foreseeability is of the risk of harm, not of the particular intervening act, even though the manufacturer could not have foreseen the extent of harm or manner in which it occurred. (Torres v. Xomox Corp. (1996) 49 Cal.App.4th 1, 18-19.)

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Can product-design-defect strict liability apply to implanted medical devices? When can expert declaration be excluded on MSJ?

805118_liquid_soap.jpgThe above two questions are presented in Garrett v. Howmedica Osteonics Corp. (filed 3/6/2013) B238304. Plaintiff Garrett was treated for cancer in his left femur by an orthopedic surgeon who implanted a prosthetic device, designed and manufactured by defendants, the surgeon had selected to replace the middle portion of the femur. When plaintiff complained about the pain in his thigh approximately 1½ years after the surgery, the surgeon discovered a fatigue fracture in the prosthesis, which had to be replaced in a second surgery.

Plaintiff sued the device-providing defendants for strict product liability (manufacturing defect, design defect, and failure to warn), breach of express warranty, and negligence. These defendants filed a motion for summary judgment claiming no defect factually, and no duty to warn as a mater of law. The motion was accompanied by a declaration of their expert mechanical engineer who said the prosthesis was not defective and the fracture was caused by an excessive load that the product could not bear over time.

Conceding the failure-to-warn claim could not be established, plaintiff otherwise opposed the motion with its own expert metallurgist's declaration which stated that he tested the prosthesis material and found it failed to meet certain minimum requirements for hardness, making the product defective in manufacture and design in his opinion. Defendants objected to most of the substantive portions of this declaration. The trial court sustained the objections and granted the motion, which caused judgment to be entered in favor of these defendants.

Plaintiff appealed, contending exclusion of major portions of its expert's declaration was error, and that triable issues of fact remained. The Court of Appeal, Second Appellate District, Division Three, reversed, vacating that portion of the summary adjudication concerning manufacturing defect and negligence, but directing summary adjudication of the remaining causes of action. In particular, it held that the trial court failed to liberally construe the plaintiff's expert's declaration, causing the sustaining of the objections to be an abuse of discretion.

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Does the CHP owe any duty of care to the public in promptly responding to highway lane blockage once its 911 operator responds affirmatively to caller?

February 25, 2013

police.bmpIn Greyhound Lines, Inc. v. Department of the California Highway Patrol (filed 1/23/13, pub. ordered 2/14/13) 2013 DJDAR 2169, during the early a.m. hours, an SUV on State Route 99 had crashed, coming to rest on its side blocking at least one lane. A passing motorist called to report the accident and road blockage to the CHP 911 operator, who responded "We'll go ahead and put this out," but failed to enter the code for lane blockage, delaying the CHP response to the scene. Due to this input error, a more distant CHP unit was summoned to the scene, rather than a nearby unit. Within about three minutes of the call, before the more distant unit could arrive, a Greyhound bus collided with the unlit, disabled SUV causing multiple deaths.

Greyhound was sued; its cross-complaint included a cause of action against the CHP alleging negligence based on unnecessary delay after being alerted of the SUV crash and failure to enter the proper code to get a timely response to the scene, thus substantially contributing to the fatal collision that followed. CHP demurred based in part on lack of duty. Greyhound responded that a duty of care arose when the CHP operator responded to the 911 caller that CHP was on the way, thus dissuading the caller from rendering assistance at the scene. Trial court granted demurrer without leave to amend, dismissing CHP from the action. Greyhound appealed.

The Court of Appeal, Fifth Appellate District, affirmed finding that law enforcement officials have no duty to come to the aid of another unless a special relationship exists; such a relationship arises if the agency's act created the peril, or contributes to, increases, or changes the risk that otherwise exists. The court determined that no such relationship existed here between the CHP and the injured bus passengers because there was no express promise inducing reliance or increasing person's risks of harm. The appellate court cited California Supreme Court authority in support of this analysis: Williams v. State of California (1983) 34 Cal.3d 18, and Clemente v. State of California (1985) 40 Cal.3d 202.

The reviewing court found Greyhound's argument fail for several reasons: (1) Greyhound's theory expands the narrow special relationship exception; (2) CHP did not induce the bus passengers to rely on CHP to their detriment or to increase their risk of harm; and (3) Greyhound's claim is replete with speculation and conjecture as a 911 caller would have had no duty to control the SUV accident scene to prevent a further collision, and the three-minute interval between the call and the bus accident was too short to expect that a closer CHP unit would have made a difference. As a final policy caveat, the court notes that to accept Greyhound's argument would make the CHP an "insurer" rather than an "enforcer."

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Bystander recovery for emotional distress barred because sister unaware that defendant's defective scuba-diving product caused brother's death, even though while diving with him she observed him to stop breathing.

scuba-diving.jpgWhen a person stops breathing, a typical reaction by one in that person's company is to think the person has had a heart attack. Of course that may not always be a correct assumption. In Fortman v. Forvaltningsbolaget Insulan AB, B23718 (Court of Appeal, Second Appellate District, Division 3, filed January 10, 2013), the emotionally devastated plaintiff thought her brother had suffered a heart attack as they were at the bottom of the ocean scuba diving together and he was unresponsive. After his death was investigated, she learned that her brother's scuba diving equipment had malfunctioned, depriving him of oxygen.

Plaintiff sued the defendant manufacturer for negligent infliction of emotional distress (NIED). The trial court granted defendants summary judgment finding that the NIED plaintiff must at least have a general sense of what is causing the injury; here, she did not contemporaneously perceive her brother's injuries were caused by the defendant's defective product. On plaintiff's appeal, the appellate court affirmed the summary judgment dismissing the case.

The Court of Appeal essentially states its hands are tied by the following language of the California Supreme Court in Thing v. La Chusa (1989) 48 Cal.3d 644667-668: that the plaintiff must be "present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim." It concludes that recovery is barred as a matter of law because plaintiff here could not experience a contemporary sensory awareness that the company's defective product caused the brother's injuries.

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Bumper car amusement ride is subject to primary assumption of risk doctrine.

Bumper car.jpgThe California Supreme Court has determined that, as a matter of law, the primary assumption of risk doctrine (PAR) relieved the operators of the Great America amusement park from their duty of ordinary care to protect a rider of its Rue le Dodge bumper car ride from injury resulting from cars colliding. The high court concluded PAR applies not only to "sports," but to other recreational activities as well.

In Nalwa v. Cedar Fair, L.P., S195031 (filed December 31, 2012), plaintiff, a ride passenger in a car driven by her son, put her hand on the front dashboard to brace herself as the car was bumped by other cars to its front and back. In doing so, she fractured her wrist. She sued for her injuries, claiming common carrier liability and willful misconduct of the park owners. The trial court granted defendant summary judgment because the injury resulted from bumping, a risk inherent in the activity, one it found covered by neither a duty of ordinary care nor the heightened duty of a common carrier. The Court of Appeal reversed, finding the matter not covered by PAR due to public policy and because the activity was too benign to be considered a "sport." (See blog of July 5, 2011.) Now the Supreme Court has reversed the Court of Appeal decision, and applied PAR ordering the reinstatement of the summary judgment dismissing the matter.

The Supreme Court finds the notion that only "active sports" involve the kind of inherent dangerousness mandating the application of PAR to be misguided. While in Knight v. Jewett (1992) 3Cal.4th 296, the activity in question, touch football, was a sport, PAR as introduced there was aimed at avoiding a chilling effect upon people vigorously participating in the broader grouping of recreational activities that have inherent dangers in their nature, that make them desirable. Under PAR, an operator, instructor or participant in the activity owes other participants only the duty not to act to increase the risk of injury over that inherent in the activity. In other words, the low-speed bumping of bumper cars is the both the inherent risk and thrill of riding the bumper cars; without the "bump," the activity would be fundamentally different.

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In spite of documentation of independent contractor relationship, Auto Club may be liable for acts of road service technician based on agency.

Auto Club.jpgWhen I read this opinion, my first thought was "Oh, oh, there goes my AAA membership fee." An increase in my annual fee may not necessarily occur. But the California Court of Appeal, Second Appellate District (Division Two) opinion in Monarrez v. Automobile Club of Southern California (filed November 20, 2012) 2012 DJDAR 15745, will likely cause some changes in how Auto Club and similar roadside service agencies operate.

Plaintiff, an Auto Club member, suffered catastrophic injuries when he was struck by a hit-and-run driver while receiving roadside assistance for a flat tire. Auto Club had dispatched a road assistance technician employed by one of its contracting companies who agreed to respond to road service calls made to Auto Club from its members. Auto Club vetted these companies before contracting with them, and this particular company had been an Auto Club contractor for more than 20 years; 85 to 90 percent of the company's business was with the Club. Auto Club provided service guidelines, a training manual and seminars, and monitored performance. The Club visited provider companies two to three times a month. This company's agreement, like others, promised to act in a "safe" manner in guaranteeing the provision of proficient service.

In particular, technicians are instructed in the training manual to minimize a member's time standing on the traffic side of the disabled vehicle and, on a tow, to promptly get the member into the tow truck. This technician understood the member's safety was the top priority, but admitted he failed to explain to plaintiff the danger of standing on the freeway. In this instance, the technician advised plaintiff the technician needed to move the disabled vehicle by towing it to a safer location in order to change the tire. He asked him to get into the tow truck, but proceeded first to load the vehicle onto the tow truck realizing plaintiff had not yet gotten into the truck. When he completed loading the vehicle, he observed plaintiff, who had been out of his view during this process, had been struck be a motorist.

The trial court granted the Auto Club's motion for summary judgment finding the agreement between Auto Club and the provider company expressly defined the service provider as an independent contractor with Auto Club, which had no control over the manner of performance by the roadside service. On plaintiff's appeal, the appellate court reversed, determining that the issue of actual or ostensible agency cannot be decided as a matter of law from the submitted evidence. From this evidence, stated the court, it could not conclude that Auto Club had no right of control over the manner and means by which its technicians accomplish their work. In addition to the control the Club exercised in this relationship, there were practical facts that could lead a jury to find ostensible agency, such as the technician's uniform and vehicle bearing the Auto Club logo. (See Civil Code section 2300.) Because there were triable issues of fact regarding agency, the summary judgment was reversed.

This opinion should cause some concern to parties who might feel they are insulated from potential liability for the acts of a party expressly labeled as an "independent contractor." They must always be concerned as to whether their conduct infers the relationship is more that of ostensible agency.