Civil Rights – Proposition 209

By on November 17, 2015 - Comments off

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Baez v. California Public Employees’ Retirement System (Second District, May 8, 2015) 186 Cal.Rptr.3d 781, 15 Cal. Daily Op. Serv. 4519, 2015 Daily Journal D.A.R. 5150

A Latino investment fund manager sued the California Public Employees’ Retirement System (CalPERS) and its chief investment officer, alleging that the defendants had denied him the opportunity to manage an investment fund, in addition to two others he and his partners were already managing, on the basis of racial animus.  In addition to causes of action for negligent and intentional interference with prospective economic advantage, the plaintiff also asserted a cause of action under  article I, section 31 of the California Constitution (Proposition 209) which provides that “[t]he State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education or public contracting.”

The trial court sustained the defendants’ demurrer without leave to amend, but the court of appeal reversed and remanded, holding that although the plaintiff should have been permitted an opportunity to amend his complaint to state a cause of action under State constitution’s general equal protection clause (Art. I, § 7, subd. (a)), the trial court had correctly found that the plaintiff had not stated a claim under section 31 because he was not challenging a preferential treatment program: Read the rest »

Posted in: Negligence


Delayed Discovery — Suspicion of Wrongful Cause

By on October 26, 2015 - Comments off

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Rosas v. BASF Corporation (Second District, May 21, 2015) — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 5042, 2015 Daily Journal D.A.R. 5570

A worker at a food flavoring plant filed an action against several manufacturers of diacetyl, a chemical used in food manufacturing. The plaintiff alleged that as a result of his workplace exposure to the chemical he developed a severe lung disease known as bronchiolitis obliterans. The defendants moved for summary judgment, contending that the two-year statute of limitations had run on the plaintiff’s claim, because even though he had been experiencing symptoms since as early as 2000, and had shared his suspicions with his doctors in 2003 that his exposure to diacetyl had been making him sick, he did not file suit until October of 2008.

The plaintiff opposed the motion on the basis of delayed discovery, arguing that until November of 2006 when his condition was diagnosed as having been caused by diacetyl, he was unaware of the cause of his injury. The plaintiff also contended that because of his physicians’ earlier inability to determine the cause, he was under no duty to further investigate. The trial court granted summary judgment, but the court of appeal reversed, finding that the evidence could support a legitimate inference that a reasonable person in the plaintiff’s situation would not have suspected a wrongful cause for his lung disease:  Read the rest »


Insurance Coverage — Expected Damage Exclusion

By on October 1, 2015 - Comments off

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Gonzalez v. Fire Insurance Exchange (6th Dist., February 2, 2015) 184 Cal.Rptr.3d 394, 15 Cal. Daily Op. Serv. 2240, 2015 Daily Journal D.A.R. 2579 

A woman filed an action against several members of a college baseball team, alleging that they had sexually assaulted her at a party while she was intoxicated and unconscious. The complaint alleged several intentional torts including false imprisonment, as well as negligence based causes of action including negligence for failing to rescue her from the assault, and negligence for inviting her to the party,

One of the defendants, who had sought but was denied coverage for his defense through his parents’ homeowner’s and personal umbrella policies, settled with the plaintiff and assigned his rights against the carrier to the plaintiff.  When the plaintiff filed an action for bad faith against the umbrella carrier, the trial court granted the carrier’s motion for summary judgment, finding that, inter alia, the policy excluded damages “[e]ither expected or intended from the standpoint of an insured.”

The court of appeal reversed and remanded, holding that the carrier had failed to meet its burden to conclusively show that its insured would have expected or intended any damages to flow from his alleged conduct based solely on the allegations of the complaint: Read the rest »

Posted in: Negligence


Summary Judgment — Initial Burden of Proof

By on September 11, 2015 - Comments off

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Fazio v. Fairbanks Ranch Country Club, — Cal.Rptr.3d —-, 2015 WL 367100

A professional musician who was injured when he fell from a stage while setting up equipment for his bass guitar prior to a performance, filed suit against the property owner.  The plaintiff alleged that the defendant was negligent, and that the premises were in a defective and dangerous condition, in that the configuration of the stage had significant gaps at the sides creating an unreasonable risk of harm.  The defendant moved for summary judgment, arguing that it owed no duty to the plaintiff to configure the stage in any particular way, and because the plaintiff assumed the risk of his injuries.

The trial court granted summary judgment, finding that the doctrine of primary assumption of the risk barred the claim, and rejecting the plaintiff’s contention that the gaps at the side of the stage increased the risk of falling. However, the court of appeal reversed, holding that the defendant had not met its initial burden of proof, and that even if it had, disputed issues of material fact remained concerning whether the defendant breached its duty not to increase the inherent risks:  Read the rest »


Liability Releases — Third Party Bystanders

By on August 25, 2015 - Comments off

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Eriksson v. Nunnink, — Cal.Rptr.3d —-, 2015 WL 332278

The parents of a 17-year-old equestrian competitor who was killed when the horse she was riding tripped over a hurdle and fell on her, filed an action for wrongful death and negligent infliction of emotional distress against their daughter’s riding coach. Although the girl and her mother had signed a liability release, assuming all risks and holding the coach harmless from any and all claims, the plaintiffs alleged the coach had unreasonably increased the risk of harm to the decedent by knowingly permitting her to ride a horse which she knew to be unfit because of prior falls and lack of practice.

Following presentation of the plaintiffs’ case-in-chief the trial court granted judgment for the defendant, finding that because the defendant’s negligence did not rise to the “direct, willful and wanton” level of recklessness, the plaintiffs were barred from recovery on both the wrongful death claim and the NIED claims. The court of appeal affirmed, concluding that “where a participant in a sport has expressly assumed the risk of injury from a defendant’s conduct, the defendant no longer owes a duty of care to bystanders with respect to the risk expressly assumed by the participant”: Read the rest »

Posted in: Negligence


Independent Contractors — Non-Delegable Duties

By on August 21, 2015 - Comments off

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Vargas v. FMI, Inc., — Cal.Rptr. —-, 15 Cal. Daily Op. Serv. 861, 2015 Daily Journal D.A.R. 1014

An independent contractor who was part of a two-man team driving a tractor-trailer cross-country was in the truck’s sleeper berth when the driver rolled the vehicle over, causing him to sustain injuries. The injured passenger filed suit against the driver and the motor carrier and trailer owner, as well as the hiring contractor who had hired them, contending that the carrier owed him a nondelegable duty of care and that the defendants were vicariously liable for the driver’s negligence.

The trial court granted summary judgment, finding that because the plaintiff and the driver were independent contractors, and the duty to provide a safe working environment is implicitly and presumptively delegated in all independent contractor agreements, there could be no liability for the negligence of the driver. However, the court of appeal reversed, holding that the Federal Motor Carrier Act (49 United States Code section 13101 et seq.), precludes delegation of the tort law duty that motor carriers owe to independent-contractor drivers: Read the rest »

Posted in: Negligence


Emergency Medical Care – Comparative Fault

By on August 17, 2015 - Comments off

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Harb v. City of Bakersfield, — Cal.Rptr.3d —-, 15 Cal. Daily Op. Serv. 877, 2015 Daily Journal D.A.R. 1001

A doctor who suffered a stroke while driving and then ran his car onto a sidewalk was arrested and handcuffed by a police officer who assumed he was intoxicated.  The first ambulance called to the scene drove away, and it was not until a second ambulance arrived later that the doctor was taken to a hospital for treatment. He then filed suit against the responding officer, the ambulance driver and their employers, alleging that the delay in treatment resulted in permanent brain damage, rendering him unable to care for himself.

At trial the defendants requested an instruction on comparative negligence and argued that the alleged negligent failure of the plaintiff to manage his own high blood pressure was a cause of the accident. Following a jury verdict in favor of the defendants, the plaintiff appealed, asserting inter alia that the trial court erred in instructing the jury on comparative fault, in that any alleged negligence prior to the interaction with the defendants was irrelevant. The appellate court agreed and reversed, holding that, as a matter of first impression in California, the defendants should not have been permitted to argue that the plaintiff’s own alleged neglect of his own high blood pressure rendered him responsible for the harm suffered: Read the rest »


Insurance Adjusters: Negligent Misrepresentation

By on February 2, 2015 - Comments off

Bock v. Hansen, (First District, April 2, 2014) 2014 WL 1315314, — Cal.Rptr.3d —-

Two homeowners who suffered property damage when a 41-foot long, 7,300 pound tree limb crashed onto their house, filed an action against their insurance carrier and the adjuster who was assigned to the claim. The plaintiffs asserted, inter alia, a cause of action for negligent misrepresentation, and alleged that the adjuster falsely told them that their policy did not cover the cost of cleanup; that he either knew the representations were false when he made them, or he made them with reckless disregard of their truth; and that they relied on his false statements and performed the cleanup on their own, to their detriment.

The defendants demurred to the complaint, arguing that a negligent misrepresentation claim cannot lie against an insurance adjuster based on conduct that occurred while adjusting a claim because, as a matter of law, the adjuster does not owe the plaintiffs a legal duty. The adjuster further argued that any liability for an adjuster’s actions lies with the insurer so long as the agency was disclosed to the insured and the conduct took place within the course and scope of such agency.

The trial court sustained the demurrer without leave to amend, but the court of appeal reversed, holding that negligent misrepresentation can be asserted against an insurance adjuster, and that such a claim was adequately pleaded by the plaintiffs:

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Posted in: Negligence


Respondeat Superior: Staffing Companies

By on December 1, 2014 - Comments off

Montague v. AMN Healthcare, Inc., (Fourth District, February 21, 2014) — Cal.Rptr.3d —, 2014 WL 659690

A hospital employee who was injured when a coworker intentionally placed carbolic acid in her water bottle following a dispute at work, filed suit against the coworker and the staffing company which had hired her and assigned her to work at the hospital. The plaintiff alleged causes of action against the staffing company under a theory of respondeat superior for negligence, battery, negligence per se and intentional infliction of emotional distress. She also alleged that the staffing company had negligently hired, retained, supervised and trained the coworker.

The trial court granted the staffing company’s motion for summary judgment, concluding that the claims based on respondeat superior liability failed because the undisputed evidence established that the coworker was a special employee of the hospital. The court also found that the plaintiff could not establish a triable issue of fact regarding negligent hiring, retention or supervision, and that the claim regarding negligent training failed due to lack of causation. The court of appeal affirmed, finding that “the employee acted outside the course and scope of her employment”:

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Posted in: Negligence


Federal Preemption: Negligence Per Se

By on November 17, 2014 - Comments off

Coleman v. Medtronic, Inc., (Second District, January 27, 2014, as modified February 3, 2013) 223 Cal.App.4th 413, 167 Cal.Rptr.3d 300.

A man who suffered painful complications following spinal surgery to implant a bone fusion device, filed suit against the manufacturer, asserting, inter alia, causes of action for strict liability failure to warn and negligence. The plaintiff further alleged that the defendant had violated state common law and parallel federal requirements by (1) failing to report adverse information about the product to the FDA after approval and (2) promoting the off-label use of the product while downplaying the risk of complications.

The trial court sustained the defendant’s demurrer without leave to amend, finding that the claims were preempted by the Medical Device Amendments (MDA) to the Food, Drug, and Cosmetic Act, § 2 et seq., 21 U.S.C.A. § 360c et seq.  However the court of appeal reversed. Although the court held that the failure to warn claim was expressly preempted to the extent it was based on the theory that the defendant should have given warnings different than those approved by the FDA, the court held that the failure to warn claim based upon failure to file adverse events reports was not preempted. The court also held that although the claim was preempted to the extent it was based upon promoting off-label uses, the plaintiff could pursue such a claim under a theory of negligence per se:

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Posted in: Negligence