Personal Injury & Product Liability Blog

Monarrez v. Automobile Club of Southern California, (Second District, December 12, 2012) 149 Cal.Rptr.3d 457, 12 Cal. Daily Op. Serv. 12, 895, 2012 Daily Journal D.A.R. 15,745

A man who suffered catastrophic injuries when he was struck by a hit and run driver while receiving roadside assistance for a flat tire, filed an action against the Automobile Club of Southern California. The complaint alleged that the tow truck driver, who was employed by a dba known as AM/PM Towing and Auto Repair, was inadequately trained and had negligently allowed the plaintiff to remain in a dangerous and vulnerable location of the freeway shoulder, contrary to industry practice.

The Automobile Club moved for summary judgment, contending that it had no duty to the plaintiff, in that the driver was an independent contractor and the contract with his employer expressly defined their relationship as such. The trial court granted summary judgment, finding that the Auto Club had no control of the manner or means by which the driver’s employer performed its emergency roadside service. However, the appellate court reversed, holding that the evidence raised triable issues of fact as to both actual and ostensible agency: Read the rest »

Chaker v. Mateo, (Fourth District, October 4, 2012) — Cal.Rptr.3d —-, 12 Cal. Daily Op. Serv. 11,371, 2012 WL 4711885

A man who owned a forensics business filed an action for defamation against his former girlfriend, her mother and others, alleging that they had posted defamatory material about him on a social networking website and on a website where member of the public can comment on the reliability and honesty of various providers of goods and services. The complaint alleged that the defendants had posted accusations that he was, inter alia, a criminal and a “deadbeat dad” and “is into illegal activities.”

The former girlfriend’s mother filed a motion to strike the complaint under Code of Civil Procedure § 425.15, (the Anti-SLAPP law), contending that the plaintiff’s claims arose from her exercise of the right to free speech. The trial court granted the motion and the court of appeal affirmed, holding that the plaintiff had failed to establish that there was a probability of prevailing on his claim, in that it could not be concluded that the comments would be interpreted as anything more than name-calling: Read the rest »

Ruiz v. Safeway, Inc., (First District, October 12, 2012) — Cal.Rptr.3d —-, 2012 WL 4845615
The parents of a man who was killed when his car was struck by an 18-year-old drunk driver, filed an action against the store where his underage passenger had purchased a 12-pack of beer which they had consumed. The plaintiffs alleged that the store was liable under Business & Professions Code § 25602.1, which provides for liability of a licensed provider “who sells, furnishes, gives or cause to be sold, furnished or given away any alcoholic beverage … to any obviously intoxicated minor. Although the driver was with his passenger when the latter used a false identification to purchase the beer, the plaintiffs contended that the Safeway checker had “furnished” or “caused to be furnished or given” alcohol to the driver.

The trial court granted summary judgment and the court of appeal affirmed, finding that despite the presence of the driver at the time of the purchase, because the person to whom the alcohol was sold was not the driver of the vehicle, the store could not be held liable under § 25602.1: Read the rest »

Chavez v. Glock, Inc., (Second District, July 24, 2012) 144 Cal.Rptr.3d 326, 12 Cal. Daily Op. Serv. 8309, 2012 Daily Journal D.A.R. 10,149

An off-duty police officer who was rendered a paraplegic when his three-year old son shot him in the back with his service weapon, filed a products liability action against the manufacturer and seller of the gun. The plaintiff alleged that he had accidentally left the holstered gun in the back of his car within reach of his son, who was belted in a jump seat, and that the boy had somehow managed to cause the gun to discharge while they were stopped at a red light. The plaintiff further alleged that the gun was defective in that, inter alia, it had a light trigger pull yet lacked a safety mechanism to prevent accidental, unknowing or inadvertent discharge.

The defendants moved for summary judgment, contending that the plaintiff could not prove causation, in that he could not establish the amount of force the boy had exerted on the trigger, nor how the boy’s hands were positioned at the time of discharge. The trial court granted summary judgment, but the court of appeal reversed as to the design defect, negligence and breach of warranty causes of action, holding that the absence of direct evidence as to how the gun was fired did not render proof on the issue of causation speculative: Read the rest »

Mixon v. State of California, (First District, May 29, 2012), 142 Cal.Rptr.3d 633, 12 Cal. Daily Op. Serv. 7187, 2012 Daily Journal D.A.R. 8627

A four-year old boy who was suffered severe brain injuries when he was hit by a car while walking in a crosswalk at an intersection, filed suit against the State of California, contending that the nighttime accident was caused by a dangerous condition of public property under Government Code § 835. The plaintiff, along with his siblings who witnessed the impact, alleged, inter alia, that the lighting at the site of the crosswalk was inadequate, in that the nearest street light was 29 feet from the intersection. The plaintiffs further alleged that the location was made especially dangerous because the poorly lit intersection contrasted sharply with better lit areas surrounding it.

The trial court granted summary judgment, finding that the intersection was not in a dangerous condition and that there was no duty to provide lighting. The court of appeal affirmed, rejecting the plaintiffs’ argument that the State had negligently undertaken to provide lighting in the area: Read the rest »

Landeros v. Torres, (Fifth District, May 24, 2012) — Cal.Rptr.3d —-, 2012 WL 1869682

A woman who suffered severe brain damage when she was involved in an automobile collision, filed an action for personal injuries against the drunk driver who had collided with her vehicle. Prior to trial the defendant moved under Civil Code § 3333.4 to exclude any evidence of noneconomic damages, on the grounds that the plaintiff was an unlicensed driver who was operating her father’s vehicle at the time of the accident. The defendant argued that the plaintiff had never obtained any insurance on her own behalf, had never taken any driver training courses, and did not qualify for insurance.

The trial court denied the motion, holding that because the plaintiff was a permissive user under her father’s policy, § 3333.4 did not apply. The court of appeal affirmed a jury verdict in favor of the plaintiff, rejecting the argument that the plaintiff’s unlicensed status prevented her from recovering noneconomic losses: Read the rest »

Shields v. Hennessy Industries, (First District, April 13, 2012) 205 Cal.App.4th 782, 140 Cal.Rptr.3d 268, 12 Cal. Daily Op. Serv. 4809, 2012 Daily Journal D.A.R. 5595

Several plaintiffs who suffered from diseases allegedly resulting from work-related asbestos exposure brought personal injury actions against the manufacturer of asbestos brake grinding machines, contending that they had been exposed to asbestos dust released into the air from brake linings during the operation of the machines. Asserting causes of action for negligence and strict liability, the plaintiffs alleged that even though the machines themselves contained no asbestos components, the defendant knew that its machines would be used on asbestos-containing brake linings, thereby creating a hazard to users, and that the defendant should have taken precautions to protect users from exposure to and inhalation of asbestos dust.

The trial court granted the defendant’s motion for judgment on the pleadings and denied leave to amend, finding that because the defendant did not manufacture or distribute any product with asbestos, the plaintiffs could not plead a viable cause of action. However, the court of appeal reversed, holding that the plaintiffs had pleaded viable causes of action for negligence and strict liability: Read the rest »

Scharer v. San Luis Equine Hospital, Inc., (Fourth District, February 28, 2012) — Cal.Rptr.3d —- ; 2012 WL 661684

The owner of a show horse which required euthanasia following surgery filed an action for malpractice against a veterinary hospital and three veterinarians. The defendants moved for judgment on the pleadings based upon the fact that the complaint had been filed 17 days beyond the one year statute for veterinary malpractice provided in Code of Civil Procedure § 340(c). The plaintiff opposed the motion, arguing that the because she had sent a pre-lawsuit notice of intent to sue under § 364, which requires such notice in actions against health care providers in certain professional negligence cases, the statute should have been extended an additional 90 days.

The trial court granted the motion, finding that the notice provisions of § 364 are not applicable to property damage claims. The court of appeal affirmed, rejecting the plaintiff’s contention that the statute was equitably tolled by the notice of intent to sue: Read the rest »

Balsam v. Trancos, Inc., (First District, February 24, 2012) 203 Cal.App.4th 1083, 138 Cal.Rptr.3d 108, 12 Cal. Daily Op. Serv. 2303, 2012 Daily Journal D.A.R. 2555

A recipient of a number of unsolicited commercial e-mails filed suit against an internet advertising business, asserting violations of the Anti-spam Law (Business and Professions Code § 17529.5) which makes it unlawful to send e-mail advertisements containing falsified, misrepresented or forged header information, and provides for actual or liquidated damages of $1,000 for each unsolicited commercial e-mail. The plaintiff alleged that the defendant, which charged advertisers for sending out large numbers of promotional e-mails to recipients on various lists, utilized multiple nonsensical “fancifully named domain names” privately registered to the defendant, in order to prevent recipients from readily tracing the senders’ identity.

Following a court trial and judgment for the plaintiff, the defendant appealed, contending that the sending of commercial e-mails from multiple domain names which it owned did not violate the law, in that there was no affirmative misrepresentation or false statement of fact. The court of appeal affirmed, distinguishing the facts from Kleffman Holdings Corp. (2010) 49 Cal.4th 334, 110 Cal. Rptr. 628, and holding that header information in a commercial e-mail is unlawful when it uses a sender domain name that neither identifies the actual sender on its face nor is readily traceable to the sender using a publically available online database:

Read the rest »

C.A. v. William S. Hart Union High School, (Supreme Court of California, March 8, 2012) 54 Cal.4th 861, 270 P.3d 699, 138 Cal.Rptr.3d 1, 276 Ed. Law Rep. 1048, 12 Cal. Daily Op. Serv. 2817, 2012 Daily Journal D.A.R. 3131

A teenage boy who alleged he was sexually molested by his high school guidance counselor filed an action against the school district and the counselor. The complaint alleged that the counselor had “sexually harassed, abused and molested” the plaintiff on a number of occasions over a period of eight months, and asserted causes of action against the school and the district for, inter alia, negligence, negligent supervision, and negligent hiring and/or retention.

The district demurred to the complaint, arguing that it could not be held liable in tort in the absence of an authorizing statute or enactment, that it could not be vicariously liable for the actions of the counselor, and that allegations of negligent hiring, training and supervision do not apply to a public entity. The trial court sustained the district’s demurrer without leave to amend, and the court of appeal affirmed, holding that the facts as alleged did not support a claim for vicarious liability. The court also held that no statute allowed a direct cause of action for negligence against the district, and that no mandatory duty subjected the district to liability.

However, the California Supreme Court reversed, holding that a public school district may be vicariously liable under Government Code § 815.2 for the negligence of administrators or supervisors in hiring, supervising and retaining a school employee who sexually harasses and abuses a student: Read the rest »