Personal Injury & Product Liability Blog

Williamson v. Mazda Motor of America, Inc., (Supreme Court, February 23, 2011) — S. Ct. —-, 2011 WL 611628

The heirs of a woman who was killed in a head-on collision filed suit against the manufacturer of the minivan in which she was riding at the time of the accident, asserting various products liability theories. The plaintiffs alleged that the decedent would have survived the collision if the defendant had equipped her second row aisle seat with a lap and shoulder harness instead of just a lap belt. Under FMVSS 208, (49 C.F.R. § 571.208) the Federal Motor Vehicle Safety Standard in effect at the time the vehicle was manufactured, carmakers were not required to install shoulder harnesses in middle or aisle seats.

The defendant demurred to the complaint, contending that the claims were pre-empted by federal law which prohibits a state from establishing any safety standard applicable to a motor vehicle which is not identical to the federal standard. (15 U.S.C. § 1392(d)). The trial sustained the demurrer without leave to amend, finding that the action was preempted under Geier v. American Honda Motor Company, Inc. (2000) 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914. However, the United States Supreme Court granted certiorari and reversed, holding that the regulation does not pre-empt the claim asserted by the plaintiffs:

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Eriksson v. Nunnink (Fourth District, January 10, 2011) — Cal.Rptr.3d —-, 2011 WL 60516

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 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.

The trial court granted the defendant’s motion on the grounds of primary assumption of the risk, but the court of appeal reversed, holding, inter alia, that triable issues of fact existed as to whether the defendant’s conduct was grossly negligent within the meaning of City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747:

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Stewart v. Union Carbide Corporation (Second District, November 16, 2010) 190 Cal.App.4th 23, 117 Cal.Rptr.3d 791, 10 Cal. Daily Op. Serv. 14,363, 2010 Daily Journal D.A.R. 17,352

A plumber and his wife filed a products liability action against Union Carbide, an asbestos manufacturer, alleging that he had contracted mesothelioma as a result of exposure to asbestos in products used on commercial and residential construction projects. The plaintiffs further alleged that Union Carbide had been aware of the dangers of asbestos but had failed to adequately warn customers who purchased asbestos for use in their products, and had responded to their questions by downplaying concerns.

Following a jury verdict in favor of the plaintiffs, which included an award for punitive damages, the Defendant appealed, contending that the evidence showed that it had an “honest conviction” that the use of its product was safe when appropriate precautions were taken. However, the court of appeal affirmed the verdict, stating: Read the rest »

Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 117 Cal.Rptr.3d 747

A man who was upset over the treatment his son had received from a pediatric dentist posted a number of criticisms of the dentist on Yelp.com, a website which posts consumer reviews of a variety of businesses. The dentist filed suit against the man, asserting causes of action for libel per se and intentional infliction of emotional distress, contending that the defendant’s comments falsely implied the dentist had not warned about mercury in a silver amalgam, that she had misdiagnosed the son’s case, and that she had improperly used a general anesthetic. The postings also included, “I wish there were a “0” star [] rating. Avoid her like a disease!”

When the defendant filed a motion to dismiss the action as a strategic lawsuit against public participation under the Anti-SLAPP statute (C.C.P. 425.16) the trial court denied the motion, finding that although the action arose from protected speech, the plaintiff had established a probability of success on the merits. The court of appeal held that the trial court had properly denied the motion as to the libel cause of action, but found that the causes of action for emotional distress should have been dismissed, in that the plaintiff’s response to the posting was not sufficiently severe or serious: Read the rest »

Perlas v. GMAC Mortgage, LLC, (First District, August 11, 2010) 187 Cal.App.4th 429, 113 Cal.Rptr.3d 790, 10 Cal. Daily Op. Serv. 10,254, 2010 Daily Journal D.A.R. 12,466

A man and a woman whose property was foreclosed upon when they were unable to make the payments on their property loan and a home equity line of credit filed suit against GMAC Mortgage, LLC, a commercial mortgage lender, asserting causes of action for fraudulent misrepresentation and fraudulent concealment. The plaintiffs alleged that at the time the defendant prepared and tendered documents for the loan and credit line, it was not possible for them to make the payments called for, but by preparing and tendering the documents to the plaintiffs, the defendant represented that they could in fact make the payments. The plaintiffs further alleged that the defendants failed to disclose to them that they could not possibly afford the payments called for in the loans, and that the qualification for the loans was based upon a fabricated inflated income.

The trial court sustained the defendants demurrer without leave to amend and the court of appeal affirmed, holding that the plaintiffs could not amend to state a cause of action for fraudulent misrepresentation or fraudulent concealment: Read the rest »

Saller v. Crown Cork & Seal Company, Inc., (Second District, August 27, 2010) 187 Cal.App.4th 1220, 115 Cal.Rptr.3d 151, 10 Cal. Daily Op. Serv. 11,333, 2010 Daily Journal D.A.R. 13,636

The heirs and estate of a man who died of mesothelioma filed an action for wrongful death against several asbestos manufacturers under various theories of products liability. The plaintiffs alleged that the decedent’s disease had been caused by his exposure decades earlier to asbestos-containing products, while at work and while using home repair products.

Following a jury verdict in favor of the defendants the plaintiffs appealed, contending that the trial court had erred in refusing to instruct the jury with CACI 1203, the consumer expectations test. The court of appeal reversed, rejecting the defendants’ contention that the consumer expectations test did not apply because no one knew of the dangers of asbestos at the time the plaintiff was exposed: Read the rest »

Flores v. Enterprise Rent-a-Car Company, (Second District, September 28, 2010) —Cal.Rptr.3d —- 188 Cal.App.4th 1055, 2010 WL 3749502, 10 Cal.Daily Op. Serv. 12,606, 2010 Daily Journal D.A.R. 15,174

The parents of a boy who suffered fatal injuries after he was struck by a rental car brought an action for negligent entrustment against Enterprise Rent-a-Car Company of Los Angeles and Enterprise Rent-a-Car Company. The plaintiffs alleged that the driver of the vehicle was under the influence of marijuana and the drug Ativan at the time of the accident, and that he had been convicted of driving under the influence of August of 2002 and May of 2003. The plaintiffs also alleged that the standard of practice for rental car companies is to screen potential renters for past convictions for driving under the influence of drugs or alcohol, and to refuse to rent vehicles to customers with a conviction within the previous 48 months.

The trial court granted summary judgment, holding that because the driver of the vehicle had a valid driver’s license and had given no indication that he was unfit to drive at the time of the rental, there was no additional duty on the part of the defendants to investigation his DMV records. The court of appeal affirmed, holding that Osborn vs. Hertz Corporation (1988) 205 Cal.App.3d 703, 252 Cal.Rptr. 613, should not be revisited, despite the more recent availability of electronic driver’s license checks: Read the rest »

Perez v. VAS S.p.A., (Second District, August 24, 2010, as Modified September 17, 2010) 188 Cal.App.4th 658, 115 Cal.Rptr.3d 590, 10 Cal. Daily Op. Serv. 12,229, 2010 Daily Journal D.A.R. 14,719

A man whose right hand was crushed while operating a paper rewinding machine for his employer filed suit against the manufacturer of the machine, asserting various products liability theories. The plaintiff alleged that the rewinder was defectively designed because it had an unguarded nip point created by two cylinders which rotated toward each other in the machine, in violation of title 8, section 4002(a) of the California Code of Regulations. The plaintiff further alleged that there was a defect in the design of the machine because during the slow speed operation there was no physical barrier or optical curtain barrier.

In a nonjury trial, the trial court found that the plaintiff had the burden of proving that the rewinding machine was used in a way that was reasonably foreseeable to the manufacturer, and concluded that the plaintiff had failed to prove the absence of unforeseeable misuse. Following a judgment in favor of the defendant the plaintiff appealed, contending that the trial court had erred in assigning the burden of proof to him to prove the absence of unforeseeable misuse.

The court of appeal agreed that the trial court had erred in applicable burden-shifting analysis, holding that the burden of proof had shifted to the manufacturer. However, the court affirmed the judgment, holding that the error was not prejudicial, and that the plaintiff’s use of the machine in an unforeseeable manner constituted a superseding cause of his injury:

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Camp v. State of California, (Second District, May 18, 2010) —Cal.Rptr. 3d —-, 2010 WL 1965878, 10 Cal. Daily Op. Serv. 6037, 2010 Daily Journal D.A.R. 7222

A woman who was rendered quadriplegic as result of injuries sustained in a rollover accident filed suit against a California Highway Patrol officer who had responded to scene, asserting that his negligence contributed to her injuries. The plaintiff alleged that when officers arrived at the scene, she was on the ground outside of the vehicle and able to move her arms and legs, but an officer ordered her and her companions to leave the scene, and that when one of them carried her away, her initial injuries were aggravated, resulting in severe spinal cord damage. The plaintiff further alleged that one of the officers breached a duty of care toward her by failing to conduct a reasonable assessment of her medical condition despite her denial of an injury at the scene, by not ordering an ambulance for her because she was not competent to decline medical care, and by ordering her to leave the accident site.

The jury returned a verdict in favor of the plaintiff against the State of California and against the CHP officer. However, the court of appeal reversed, holding that the officer’s conduct amounted to nonfeasance that did not alter the risk of harm to the plaintiff, and therefore he owed no duty to her: Read the rest »

Huverserian v. Catalina Scuba Luv, Inc., (Second District, May 26, 2010) —Cal.Rptr. 3d —-, 2010 WL 2089663, 10 Cal. Daily Op. Serv. 6573

The heirs of a man who died when he ran out of air while scuba diving near Catalina Island filed an action for wrongful death against the business which had rented the dive equipment to the decedent and his son for the day. The defendant moved for summary judgment, asserting that exculpatory language in the rental agreement provided a full defense. In the form rental agreement signed by the decedent, there was a lengthy liability release which was preceded by bolder underlined print which stated: “Equipment rental agreement, liability release and assumption of risk of scuba & snorkel gear for boat dives or multiple day rentals”.

Although it was undisputed that the decedent and his son did not rent the equipment for a boat dive or multiple day rental, the trial court found the exculpatory language provided a complete defense. However, the court of appeal reversed, holding that a person renting equipment for a single day could have reasonably concluded that the language did not apply:

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