Personal Injury & Product Liability Blog

Jennifer C. v. Los Angeles Unified School District, (2nd District, December 8, 2008) 168 Cal. App. 4th 1320, 86 Cal.Rptr.3d 274, 2008 WL 5122998

A 14-year-old special needs student who was sexually assaulted on school grounds during a lunch break filed an action against the school district, alleging negligent supervision and maintenance of a dangerous condition of public property. The plaintiff contended that while “mainstreamed” and allowed to interact with the general education student body, she was assaulted by another special needs student who took her to a hidden alcove underneath a stairway.

The school district moved for summary judgment, arguing that as a matter of law the plaintiff would have to demonstrate that the same type of conduct or victimization had previously occurred on the campus before there could be a finding of foreseeability. The trial court granted summary judgment, but the court of appeal reversed, holding that the absence of prior similar incidents was not a bar to a finding of liability: Read the rest »

Padilla v. Pomona College, (2nd District, September 3, 2008) 166 Cal.App.4th 661, 82 Cal.Rptr.3d 869

An employee of a subcontractor who was demolishing water pipes in a dormitory basement was injured when a gusher or water from a broken pipe knocked him off a ladder. The plaintiff filed suit against the property owner as well as the general contractor, alleging that the defendants had violated common law and statutory duties to insure that there was no water pressure in the pipes in the area he was working. The plaintiff also contended that the defendants had failed to follow a Cal-OSHA regulation which required utilities to be shut off, capped, or otherwise controlled during demolition, or protected if use was necessary. (Cal.Code Regs. Title 8, section 1735)

The trial court granted the defendants’ motion for summary judgment under Privette v. Superior Court (1993) 5 Cal.4th 689, 21 Cal.Rptr.2d 72, finding that the defendants had fully delegated the task of providing a safe work environment to the plaintiff’s employer, and that the regulation did not impose a duty on the defendants independent of the retained control theory of liability.

The court of appeal affirmed, holding that regulation 1735(a) did not impose a non-delegable duty on the defendants:

Read the rest »

McKenney v. Purepac Pharmaceutical Company, (5th District, September 25, 2008) 83 Cal.Rptr.3d 810, 08 Cal. Daily Op. Serv. 12,747

A woman who alleged she suffered injuries as a result of using the prescription generic drug metoclopramide filed an action against the manufacturer. The plaintiff alleged that there were false and/or misleading statements in the labeling of the drug which downplayed the risk of tardive dyskinesia, which the plaintiff had contracted while taking the drug.

The trial court sustained the manufacturer’s demurrer to the complaint, finding that because a generic manufacturer of a drug must obtain approval by the FDA before issuing any label which deviates from the labeling previously approved by the FDA, all of the plaintiff’s claims were pre-empted by federal law. However, the court of appeal reversed, holding that the federal requirement that a generic drug have the same labeling as a reference drug does not necessarily pre-empt a state tort action against a generic manufacturer for failure to adequately warn of the dangers of the drug:

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This week top executives of the ‘Big Three’ automakers are on Capitol Hill asking Congress for $25 billion in government bailout money. Even before the recent economic crisis things were not going well for American automotive giants. Sales had been sliding along with their market share, and the downturn of the last few months has only made matters worse. Ford Motor Company’s share price has dropped 74% this year. General Motors revenue was down 45% in October alone, and its stock price has dropped down to where it was half a century ago. Now industry analysts, as well as the unions, are saying that without a bailout GM may be driven into bankruptcy, and others speculate that Ford and Chrysler could eventually follow.

If one or more of these automakers files for bankruptcy, how will this affect claims brought by individuals alleging injuries caused by automotive design or manufacturing defects? It is reasonable to assume that at any given moment there are hundreds of automotive crashworthiness lawsuits being actively litigated across the country, involving everything from SUV rollovers, to fuel system fires, to seatbelt and occupant restraint system defects, to roof crush and door latch failures. While the long term impact on the ability of the manufacturers to pay a judgment against them or to settle a claim is difficult to predict, there may be an immediate impact by the filing of bankrupty proceedings. All pending civil actions could be stayed pursuant to an automatic stay under Section 362 of the Bankruptcy Code, which provides in relevant part:

“[A] petition filed … under this title … operates as a stay, applicable to all entities, of-
(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title …. ”
[11 U.S.C. § 362(a)(1) (1993)]”

The scope of the automatic stay is broad. Maritime Elec. Co. v. United Jersey Bank, 959 F.2d 1194, 1203 (3d Cir.1991)(citing Assoc. of St. Croix Condo., Owners v. St. Croix Hotel Corp., 682 F.2d 446, 448 (3d Cir.1982)). “All proceedings are stayed, including judicial proceedings. Proceeding in this sense encompasses civil actions ….” Id

If a stay is put into effect it could not only cause all pending litigation to gring to a halt, but also prevent new cases from being filed until the bankruptcy court determines the stay should be lifted. A court may grant relief from such a stay to allow a party to proceed in an action in another forum under certain limited circumstances. In determining whether to lift the stay courts take into account a number of factors:

1) whether relief would result in a partial or complete resolution of the issues; 2) lack of any connection with or interference with the bankruptcy case; 3) whether the other proceeding involves the debtor as a fiduciary; 4) whether a specialized tribunal with the necessary expertise has been established to hear the cause of action; 5) whether the debtor’s insurer has assumed ful responsibility for defending it; 6) whether the action primarily involves third parties; 7) whether litigation in another forum would prejudice the interests of other creditors; 8) whether the judgment claim arising from the other action is subject to equitable subordination; 9) whether the moving party’s success in the other proceeding would result in a judicial lien avoidable by the debtor; 10) the interests of judicial economy and the expeditious and economical resolution of litigation; 11) whether the parties are ready for trial in the other proceeding; and 12) impact of the stay on the parties and the balance of the harms. In re Mid-Atlantic Handling Sys., LL C, 304 B.R. at 130 (citing In re Ice Cream Liquidation, Inc., 281 B .R. 154, 165 (Bankr.D.Conn.2002)). See also In re Curtis, 40 B.R. 795, 799-800 (Bankr.D.Utah 1984) (utilizing same factors). All twelve factors are not necessarily present in a particular case, and a court need not rely on any plurality of factors in deciding whether to lift the automatic stay. In re Mid-Atlantic Handling Sys., LLC, 304 B.R. at 130 (citing In re Ice Cream Liquidation, Inc., 281 B.R. at 165).

Should one of the Big Three file for bankruptcy, products liability litigants may be forced to petition the bankruptcy court in order to obtain permission to initiate new actions against a bankrupt automaker, or to allow them to continue proceedings already in progress in another court.

Ontiveros v. DHL Express (USA), Inc., 164 Cal.App.4th 494, 79 Cal.Rptr.3d 471, 103 Fair Empl.Prac.Cas. (BNA) 1300, 08 Cal. Daily Op. Serv. 8379, 2008 Daily Journal D.A.R. 10,045

An aircraft operations supervisor who left her employment after taking a short-term disability leave filed an action against her former employer, alleging sex/gender discrimination and harassment and retaliation for opposing forbidden practices. The plaintiff further alleged that the defendant had failed to prevent her from being subjected to ongoing severe sexual harassment and retaliation following her promotion, and that the employer had aided and abetted in the harassment.

The employer moved to compel arbitration based upon an arbitration agreement the plaintiff had signed upon being hired, which provided that any disputes relating to the applicability, enforceability or formation of the agreement would be decided by the arbitrator.

The trial court denied the motion to compel arbitration and the court of appeal affirmed, holding that the provision was unconscionable:

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Winfred D. v. Michelin North America, Inc., (2nd District, August 7, 2008) — Cal.Rptr.3d —-, 2008 WL 3115802

A man who sustained a severe brain injury when the right rear tire on his cargo van delaminated and caused the vehicle to roll over, filed suit against the tire manufacturer. At trial, over objection, the trial court permitted defense counsel to introduce evidence that while the plaintiff was married to his first wife, he had an affair with and later married his business partner’s wife, that he falsely told his second wife before marrying her that he had divorced his first wife, and that after divorcing his second wife he had an affair with a third woman with whom he had two children. The trial court reasoned that the evidence was relevant to credibility and to the cause of the accident.

Following the jury verdict in favor of the defendants the plaintiff appealed, arguing that the disputed evidence should have been excluded under Evidence Code Section 352. The court of appeal agreed, reversed the judgment and ordered the case remanded for a new trial, holding that the disputed evidence was so inflammatory that it appeared reasonably probable that had it been excluded, the plaintiff could have obtained a verdict in his favor: Read the rest »

Coronado v. Cobblestone Village Community Rentals (2008) 163 Cal.App.4th 831, 77 Cal.Rptr.3d 883

A disabled man who was confined to a wheelchair sustained injuries when his wheelchair tipped over while his wife was attempting to help him over a curb at the apartment complex where they resided. He filed suit against the property owner alleging violations of the Unruh Civil Rights Act (California Civil Code section 51) and the Disabled Persons Act (section 54.1), and for injunctive relief under section 55.1, alleging that the defendants had a statutory duty to install a wheelchair ramp at the location of the raised curb, so that the plaintiff would have access on the only path of travel between the apartment building and the parking area. He also asserted causes of action for premises liability and constructive eviction.

The trial court granted a non-suit as to the statutory causes of action, rejecting the plaintiff’s argument that because the defendant’s leasing office was a public accommodation and subject to structural access standards, the entirety of the apartment complex, including residential areas, would require public accommodation for purposes of the relevant statutes. The court of appeal affirmed, holding that the statutes were not intended to apply to portions of a multi-use facility which are residential in character: Read the rest »

Ericson v. Federal Express Corporation (2008) 162 Cal.App.4th 1291, 77 Cal.Rptr.3d 1

An independent contractor who was working late at night at a FedEx terminal was severely injured when he was assaulted in a dimly lit parking lot while returning to his car at the end of his shift. The man sued FedEx for premises liability, alleging that the assault was reasonably foreseeable because the defendant required him to park in an isolated area, and did not include the non-employee parking area in its security inspections. The plaintiff also alleged that the defendant had notice of transients living in nearby canyons and that it should have allowed contractor’s employees to park where its own employees parked.

The defendant moved for summary judgment, arguing that it owed no duty to prevent the assault because there were no prior assaults on the property. The trial court granted the motion and the court of appeal affirmed, holding that the security measures proposed by the plaintiff were minimally burdensome, but that the third-party assault was not foreseeable under the “regular reasonable foreseeabilty” test:

Read the rest »

Little Company of Mary Hospital v. Superior Court (2008) 162 Cal.App.4th 261, 75 Cal.Rptr.3d 519

A man whose mother died while in the care and custody of a hospital owned by a tax-exempt religious corporation, filed an action for elder abuse against the hospital, seeking punitive damages. The hospital moved to strike the punitive damage, citing Code of Civil Procedure section 425.14, which provides that no claim for punitive damages may be made against a religious corporation unless a trial court first concludes that the plaintiff has evidence which “substantiates that he or she will meet the clear and convincing standard of proof” under Civil Code section 3294.

The plaintiff opposed the motion, relying upon the California Supreme Court’s ruling in Covenant Care, Inc. v. Superior Court (2004), 32 Cal.4th 771, which held that C.C.P. section 425.13, a statute imposing similar requirements in actions against health care providers, was inapplicable in elder abuse cases. The trial court denied the motion, finding that the rationale articulated in Covenant Care to exclude elder abuse-related punitive damages claims from the requirements of section 425.13 applied equally to claims against religious organizations. However, the court of appeal issued a writ of mandate directing the court to strike the punitive damage claim, holding that section 424.14 applies to claims for punitive damages against religious health care providers, even in the context of elder abuse actions: Read the rest »

Unruh-Haxton v. Regents of the University of California (2008) 162 Cal.App.4th 343, 76 Cal.Rptr.3d 146

Several patients who received fertility treatments filed an action against a medical center and the University of California, alleging that their physicians had been stealing and selling human genetic material including eggs and pre-embryos. Asserting causes of action for fraud, conversion and intentional infliction of emotional distress, the plaintiffs alleged that they were unaware they were potential victims until several years after receiving the treatments.

The trial court sustained the defendants’ demurrers, taking upon judicial notice of approximately 100 news articles and press releases regarding the scandal, determining that the plaintiffs should have suspected wrongdoing, (i.e., constructive suspicion), much sooner than alleged in the complaints. However, the court of appeal reversed, holding that the media coverage alone did not, as a matter of law, establish constructive suspicion on the part of the plaintiffs: Read the rest »