Personal Injury & Product Liability Blog

Doe II v. MySpace Incorporated, (Second District, June 30, 2009) 175 Cal.App.4th 561, 96 Cal.Rptr.3d 148, 09 Cal. Daily Op. Serv. 8401, 2009 Daily Journal D.A.R. 9774

Four minor females filed separate lawsuits against the social networking website, MySpace.com, alleging that they had all been sexually assaulted by adults whom they had met on the website. The plaintiffs alleged that MySpace was aware that its website poses a danger to children by facilitating attempted and actual sexual assault, and that MySpace failed to institute reasonable measures to prevent older users from directly searching out, finding, and/or communicating with minors.

The defendant demurred to complaints based upon the immunity provisions of the Communications Decency Act (47 U.S.C. §230), which immunizes interactive computer services providers who are not information content providers from liability for information originating from third-party users of their service. The trial court sustained the demurrers without leave to amend and the court of appeal affirmed, holding that MySpace is not an information content provider, and is not liable for content provided by third-party users: Read the rest »

Yamaha Motor Corporation, Ltd. v. Superior Court, (4th District, May 26, 2009) —Cal.Rptr.3d—-, 2009 WL 1458270, 09 Cal. Daily Op. Serv. 6433
A boy who was injured while operating a Yamaha Rhino filed a products liability action against Yamaha Motor Company, Ltd. (Yamaha-Japan), the Japanese entity which manufactured the vehicle, as well as Yamaha Motor Corporation, U.S.A. (Yamaha-America), its wholly owned domestic subsidiary and exclusive importer and distributor in the United States. When the plaintiff attempted to serve Yamaha-Japan by serving Yamaha-America through its agent for service of process, Yamaha-Japan filed a motion to quash service, arguing that Yamaha-America is only a subsidiary of Yamaha-Japan, not Yamaha-Japan’s general manager in California, and therefore service should have been made through the Hague Convention.

The trial court denied the motion, reasoning that Yamaha-America is Yamaha-Japan’s general manager in California. Yamaha-Japan filed a petition for writ of mandate but the court of appeal denied the writ, holding that California law allows service on a foreign corporation by serving its domestic subsidiary:

Read the rest »

Sheehan v. San Francisco 49ers, Ltd., (Supreme Court of California, March 2, 2009) 45 Cal.4th 992, 201 P.3d 472, 89 Cal.Rptr.3d 594, 09 Cal. Daily Op. Serv. 2525, 2009 Daily Journal D.A.R. 2977

Two long-time San Francisco 49er’s season ticket holders who were subjected to patdown searches before they were allowed to enter the stadium for an NFL game, filed suit against the team. The plaintiffs alleged that the 49ers had implemented the patdown policy pursuant to a policy the NFL promulgated by which stadium screeners are supposed to conduct physical searches by touching, patting or lightly rubbing all ticket holders entering every NFL stadium for each NFL game. Contending that the searches violated their state constitutional right to privacy, the plaintiffs sought a declaration that the searches were unconstitutional, as well as an injunction prohibiting any further such searches.

The 49ers demurred to the complaint, contending that it did not state a cause of action, and the trial court agreed, sustaining the demurrer without leave to amend. The court of appeal affirmed, concluding that the plaintiffs could not demonstrate that they had a reasonable expectation of privacy under the circumstances, and that rather than submitting to the patdown, the plaintiffs had the choice of walking away. The California Supreme Court reversed, and remanded the case to the trial court, finding that the 49ers had not demonstrated that the allegations of the complaint failed to state a cause of action: Read the rest »

In a conference call with a group of reporters this morning the FDA announced it is warning users of Zicam, a popular cold-relief nasal spray, to stop using the product because it has been associated with approximately 130 reported cases of people losing their sense of smell.

The FDA stated that it had sent Matrixx Initiatives, Inc., the manufacturer of Zicam, a warning letter directing the company to stop marketing the internasal products. The agency also instructed Matrixx that it must seek FDA approval if it wishes to continue selling zinc-containing versions of Zicam administered through the nose.

No recall has been ordered because the FDA’s authority is limited for regulation of over-the-counter homeopathic remedies such as Zicam. Although Matrixx denies that the product can cause a loss of smell, the company indicated that it will consider withdrawing the products from the market.

Several lawsuits have already been filed against Matrixx, asserting that Zicam nasal gel has caused permanent loss of smell (anosmia) and taste in users, some after a single application of the product. Zicam contains soluble zinc gluconate, a substance known to be linked to olfactory nerve damage when applied through the nose, which has been associated with anosmia since the 1930’s.

Shares of Matrixx Initiatives Inc. (MTXX) dropped 56% to $8.56 in recent trading after hitting a 52-week low of $8.41 earlier in the day.

Moreno v. Hanford Sentinel, Inc., (5th District, April 2, 2009) — Cal.Rptr.3d —-, 2009 WL 866795

A woman who posted an article on myspace.com, a social networking website, expressing negative comments about her hometown and its inhabitants, filed suit against a local high school principal and his employer for invasion of privacy and intentional infliction of emotional distress based upon a republication of the article. The plaintiff alleged that even though she had removed the article from the website, the high school principal had forwarded it along with her name to a local newspaper, whereupon it was republished in a letters to the editor section. The plaintiff further alleged that the community reacted violently to the publication, that she and her family had received death threats, and that a shot was fired at the family home.

The trial court sustained the defendant’s demurrer without leave to amend, but the court of appeal affirmed in part and reversed in part. In a non-published portion of the opinion the court held that the trial court should have overruled the demurrer to the intentional infliction of emotional distress cause of action, and permit a jury to determine whether the alleged conduct was outrageous. However, in the published portion of the opinion, the court held that the plaintiff did not state a cause of action for invasion of privacy: Read the rest »

Phillips v. TLC Plumbing, Inc., (4th District, April 3, 2009) — Cal.Rptr.3d. —-, 2009 WL 884938, 09 Cal. Daily Op. Serv. 4215

A woman whose mother was murdered by a former plumbing repairman, filed an action for wrongful death against the plumbing service which had employed him. The plaintiff alleged that her mother met the repairman when he had been dispatched to her home by the defendants, and that they had started a relationship following his termination. The plaintiff further alleged that although the murder occurred two years after the repairman had been terminated, the defendants were aware at the time he was hired that he was on parole, and that he had been convicted of domestic violence and/or arson involving his former wife.

The trial court granted the defendants’ motion for summary judgment, finding that they could not be held vicariously liable for the plaintiff’s injuries because there was no employer-employee relationship at the time of the killing. The court also found that it was not reasonably foreseeable that the repairman would enter into a personal relationship with the victim which would later lead to a shooting and killing two years later. The court of appeal affirmed, holding that an employer does not owe a plaintiff a duty of care in a negligent hiring and retention action for an injury inflicted by a former employee: Read the rest »

In re Tobacco II Cases,— Cal.Rptr.3d —-, 2009 WL 1362556, 09 Cal. Daily Op. Serv. 5993, Cal., May 18, 2009 (NO. S147345)

In a major victory for California consumers victimized by fraudulent advertising and business practices, the California Supreme Court ruled on May 18, 2009 that Proposition 64 does not impose new procedural and substantive proof requirements on consumer class actions. The long-awaited decision, In Re Tobacco Cases II, reversed a holding by a lower court which interpreted Prop. 64 as requiring that all absent class members affirmatively demonstrate injury caused by an unfair practice in order to proceed as a class action. This would have severely hindered lawsuits under California’s Unfair Competition Law (UCL) and False Advertising Law (FAL), which are designed to protect against unfair, unlawful and fraudulent business practices. Robinson Calcagnie Robinson Shapiro Davis, Inc. senior partner Mark P. Robinson Jr., who argued the case before the Supreme Court on behalf of the Plaintiffs in the case, called the decision “a huge victory for the consumers of California.” “This gives the consumers rights to protect themselves from fraudulent advertising,” said Robinson, former president of the Consumer Attorneys of California, who was named California Trial Lawyer of the Year by the American Board of Trial Advocates in 2008.

The suit was brought by smokers alleging that the tobacco industry defendants violated the UCL and FAL by conducting a decades-long campaign of deceptive advertising and misleading statements about the addictive nature of nicotine and the relationship between tobacco use and disease. However, the ruling will potentially impact all consumer class actions in California involving unfair competition, fraudulent and unlawful business practices, and false advertising. Justice Carlos Moreno, writing for the majority, found that interpreting the statutes amended under Proposition 64 to require all unnamed members of a class action to individually establish standing would “effectively eliminate the class action lawsuit as a vehicle for the vindication of such rights.” The decision was immediately hailed by attorneys representing injured consumers.”We want to congratulate the fine work done by attorney Mark Robinson, a renowned fellow trial lawyer, for his excellent work in arguing the case before the California Supreme Court” noted Audet & Partners, LLP founder William M. Audet. “Without a doubt, Mark Robinson’s advocacy carried the day.”

Tverberg v. Fillner Construction, Inc. (2008) 168 Cal. App. 4th 1278, 2008 WL 5102860

A man who was injured when he fell into a hole while installing a canopy at a construction site filed an action against the general contractor alleging causes of action and premises liability. The defendant moved for summary judgment based upon Privette v. Superior Court (1993) 5 Cal.4th 689, contending that it owed no duty of care to the plaintiff. In opposition to the motion, the plaintiff argued that he was not an employee of the subcontractor which had hired him, but rather, an independent contractor, and therefore Privette did not apply.

Even though both sides agreed that the plaintiff had been hired as an independent contractor, the trial court granted summary judgment. However, the court of appeal reversed, disagreeing with a contrary decision in Michael v. Denbeste Transportation, Inc. (2006) 137 Cal.App.4th 1082, 1093-1096: Read the rest »

Van Horn v. Watson, (Supreme Court of California, December 18, 2008) 197 P.3d 164, 45 Cal.4th 322, 197 P.3d 164, 86 Cal.Rptr. 3d 350, 08 Cal. Daily Op. Serv. 15,199, 2008 Daily Journal D.A.R. 18,512

A woman who was injured in a motor vehicle collision filed suit against an acquaintance who had pulled her from the vehicle following the collision. The plaintiff alleged that she had only suffered an injury to her vertebrae, but that by dragging her out of the vehicle the defendant had caused permanent damage to her spinal cord, rendering her a paraplegic.

The defendant moved for summary judgment based upon Health & Safety Code section 1799.102, which provides that no person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. The trial court granted summary judgment but the Court of Appeal reversed, finding that the defendant’s actions at the scene did not amount to the rendering of emergency care within the meaning of the statute.

The California Supreme Court affirmed the judgment of the Court of Appeal, holding that the Legislature intended for section 1799.102 to immunize only those persons who in good faith render emergency medical care: Read the rest »

Taylor v. Elliott Turbomachinery Co., Inc., (1st District, February 25, 2009), 171 Cal.App.4th 564, 90 Cal.Rptr.3d 414, 09 Cal. Daily Op. Serv. 2395, 2009 Daily Journal D.A.R. 2930

A former U.S. Navy sailor who had worked aboard the U.S.S. Hornet in the mid-1960s, filed an action against several manufacturers of equipment used in the ship’s propulsion system. The plaintiff contended that he had contracted mesothelioma as a result of his exposure to asbestos-containing parts contained within various metal valves and other components which he had serviced. Although the equipment had been installed in 1943 and all the asbestos-containing parts had been removed and replaced with parts made by manufacturers other than the defendants, the plaintiff contended that the original manufacturers had a duty to warn of the hazards arising from the foreseeable use of their products, as well as hazards arising from the combination of their product and products manufactured by others.

The trial court granted the manufacturers motion for summary judgment and the court of appeal affirmed, holding that the defendants owed the plaintiff no duty to warn of the dangers inherent in asbestos-containing products supplied by other manufacturers:

Read the rest »