Personal Injury & Product Liability Blog

Uriarte v. Scott Sales Co., (Second District, June 13, 2014) 226 Cal.App.4th 1396, 172 Cal.Rptr.3d 886, 14 Cal. Daily Op. Serv. 6588, 2014 Daily Journal D.A.R. 7553

A man who worked as a sandblaster filed suit against the manufacturers and suppliers of silica sand purchased by his employer, contending that the airborne toxins produced by sandblasting with their product caused him to develop interstitial pulmonary fibrosis and other illnesses. The plaintiff alleged that the sandblasting media supplied by the defendants, when used in the manner intended by the manufacturers and suppliers, resulted in the generation and release of toxicologically significant amounts of toxic airborne fumes and dust.
 
The defendants moved for judgment on the pleadings on the basis of the component parts doctrine, which provides that the manufacturer of a component part is not liable for injuries caused by the finished product into which the component has been incorporated unless the component itself was defective and caused harm.  The trial court granted the motions but the court of appeal reversed, concluding that because the plaintiff’s injuries were allegedly caused by the use of the silica sand during the manufacturing process, rather than by the finished product, the component parts doctrine did not apply, disagreeing with the interpretation and application of the component parts doctrine articulated in Maxton v. Western States Metals (2012) 203 Cal.App.4th 81, 136 Cal.Rptr.3d 630:  Read the rest »

Haver v. BNSF Railway Co., (Second District, June 3, 2014 | As Modified June 23, 2014) 226 Cal.App.4th 1104, 172 Cal.Rptr.3d 771.

The heirs of a woman who died after contracting mesothelioma, throat cancer and progressive lung disease, filed a wrongful death action against her husband’s former employer, contending that she had contracted the disease as a result of secondary exposure to asbestos. The plaintiffs alleged that asbestos from products and equipment on the employer’s premises had adhered to the decedent’s husband’s clothing, tools and vehicles, and that the decedent had inhaled asbestos fibers which had been transferred to the couple’s home.

The defendant demurred to the complaint, contending that under Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, 141 Cal.Rptr.3d 390, it owed no duty to protect family members from take-home exposure. The trial court sustained the demurrer without leave to amend and the court of appeal affirmed, rejecting the plaintiffs’ argument that the holding in Campbell applied only to relatives of independent contractors and not employees. The court also distinguished the case from the recent decision in Kesner v. Superior Court (May 15, 2014, No. A136378, 2014 WL 1962217) 226 Cal.App.4th 251, 171 Cal.Rptr.3d 811, which had permitted a take-home exposure claim under products liability principles: Read the rest »

Allen v. Liberman, (Third District, June 18, 2014) 227 Cal.App.4th 46, 173 Cal.Rptr.3d 463, 14 Cal. Daily Op. Serv. 6675, 2014 Daily Journal D.A.R. 7751

The parents of a 17-year old girl who was found dead from acute ethanol intoxication the morning after sleeping over at a girlfriend’s home, filed an action for wrongful death against the other girl and her parents. The plaintiffs alleged that the decedent had obtained and consumed 15 shots of vodka from the defendants’ bar and that when she began vomiting and passed out, her friend propped her head against toilet, took her cell phone, closed the bathroom door and went to bed. The plaintiffs further alleged that the girl’s father did not check on the decedent the following morning because his daughter had told him she had become sick from drinking but that she was okay.

The defendants moved for summary judgment, contending that the action was barred by Civ. Code, § 1714, subd. (c), which provides that “no social host who furnishes alcoholic beverages to any person may be held legally accountable for damages suffered by that person … resulting from the consumption of those beverages.” (In 2010 the Legislature created an exception to social host immunity, where a parent or other adult knowingly furnishes alcoholic beverages at his or her residence to a person whom he or she knows, or should have known, to be under 21 years of age. (§ 1714, subd. (d)(1).) However, the plaintiffs did not contend the new exception applied retroactively.) The plaintiffs opposed the motion, contending that the immunity was inapplicable because the defendants did not actually furnish the alcohol to the decedent. The Plaintiffs also contended that irrespective of the immunity, the defendants breached an independent duty of care to the decedent, failed to exercise reasonable care in rendering aid to her and increased her risk of harm.

The trial court granted summary judgment and the court of appeal affirmed, finding that the action was barred by the statutory immunity, and that the plaintiffs had not established a special relationship under which the defendants had a duty to render such assistance: Read the rest »

Verdugo v. Target Corp., (Supreme Court of California, June 23, 2014) — P.3d —-, 59 Cal.4th 312, — P.3d —-, 2014 Daily Journal D.A.R. 8060

The heirs of a 49-year-old woman who died after suffering sudden cardiac arrest while shopping at a Target department store filed a wrongful death action against Target Corp., contending that the defendant breached the duty of care that it owed to the decedent by failing to have on hand an automated (or automatic) external defibrillator (AED) for use in a medical emergency. The plaintiffs alleged that it took the paramedics several minutes to reach the store and a few additional minutes to reach the victim inside the store, and that the paramedics attempted to revive her but were unable to do so.

The Plaintiffs alleged that an AED was an essential element of the life-saving first aid that Target was obligated to provide to its patrons, in view of the large number of persons (300,000) in the U.S. who suffer an unanticipated sudden cardiac arrest each year, and the large number of customers who shop in Target’s department stores. They further alleged that it was reasonably foreseeable that a patron might suffer such an attack in its store, and that because of the size of the store Target should have known that it would take emergency medical personnel many minutes to reach a sudden cardiac arrest victim, making an onsite AED a medical necessity.

The federal district court granted Target’s motion, concluding that Target had no duty to acquire and make available an AED for the use of its customers. The Ninth Circuit Court of Appeals certified the question to the California Supreme Court, which concluded that under California law, Target’s common law duty of care to its customers does not include a duty to acquire and make available an AED for use in a medical emergency: Read the rest »

Rosenfeld v. Abraham Joshua Heschel Day School, (Second District, May 28, 2014) 2014 WL 2200910, — Cal.Rptr.3d —-

A 60 year-old teacher at a private elementary and middle school whose hours were cut by her employer filed an action against the school, asserting causes of action for discrimination on the basis of age under the California Fair Employment and Housing Act (FEHA) ( Gov.Code, § 12940); constructive wrongful termination; failure to prevent discrimination; constructive wrongful termination in violation of public policy; intentional infliction of emotional distress; and negligent infliction of emotional distress. The plaintiff alleged that the defendant had repeatedly and systematically reduced her teaching hours in an effort to force her out of her position because of her age, and replace her with workers under 40. She also alleged that she was forced to resign her employment because her work environment had become intolerable.

Following a verdict in favor of the defendant, the plaintiff appealed, contending that the trial court had erred in precluding her from proceeding with her disparate impact claim in addition to a disparate treatment theory. The court of appeal affirmed, holding that because the plaintiff’s pleadings solely alleged a theory of disparate treatment, based upon intentional discrimination, the trial court properly barred her from pursuing a disparate impact claim at trial: Read the rest »

Hopkins v. Kedzierski, (Fourth District, April 16, 2014) 225 Cal.App.4th 736, 170 Cal.Rptr.3d 551, 14 Cal. Daily Op. Serv. 4108, 2014 Daily Journal D.A.R. 4770

A woman who suffered injuries when she fell from an outdoor balcony at her place of employment filed a claim with the Worker’s Compensation Appeals Board eleven months later. Over two years after her fall she filed a premises liability action against the owners of the building, who also owned the dental business which employed her. In a bifurcated bench trial on the defense of statute of limitations, the plaintiff contended that the statute was equitably tolled by her filing of the workers’ compensation claims.

The trial court ruled in favor of the defendants, finding that equitable tolling did not apply because the workers’ compensation claim had not been rejected, and there had been no determination that the plaintiff was ineligible for benefits. The court also held that the fact the defendants in the action were different from those in the workers’ compensation proceeding precluded application of the doctrine. However, the court of appeal concluded that neither ground was legally sufficient to prevent the application of equitable tolling: Read the rest »

Tiri v. Lucky Chances, Inc., (Fourth District, May 15, 2014) 2014 WL 1961845, — Cal.Rptr.3d. —-, 14 Cal.Daily Op. Serv. 5380, 2014 Daily Journal D.A.R. 6103

A woman who was fired from her job as a cook at a card-club casino while on medical leave after undergoing heart surgery, filed an action against her employer for wrongful discharge. The employer filed a petition to compel arbitration based upon an arbitration agreement the woman had been asked to sign three years after she had been hired, which contained a provision delegating questions about the enforceability of the agreement to the arbitrator instead of a court. The plaintiff opposed the petition, contending that the arbitration agreement was unconscionable and that its unconscionability was an issue properly resolved by the trial court.

The trial court denied the petition, finding that the arbitration agreement was both substantively and procedurally unconscionable and therefore unenforceable because the employer had presented the agreement to the plaintiff on a ‘take it or leave it basis’ and the employer had failed to attach AAA employment dispute resolution rules to the arbitration agreement.

The court of appeal reversed, holding that although the trial court’s implied finding that the delegation clause was procedurally unconscionable was correct, its implied finding that the delegation clause was substantively unconscionable was incorrect. The court held that despite the fact the clause was part of a contract of adhesion, it was nevertheless valid, and the question whether the arbitration agreement as a whole or any of its other severable provisions was unconscionable, should be left to the arbitrator: Read the rest »

Kesner v. Superior Court, (First District, May 15, 2014) 2014 WL 1962217, — Cal.Rptr.3d —-, 14 Cal.Daily Op. Serv. 5376, 2014 Daily Journal D.A.R. 6110

A man who contracted mesothelioma filed suit against his uncle’s employer, a brake lining manufacturer, alleging that his disease was caused by exposure to asbestos which his uncle brought home from work on his clothing. Asserting theories of products liability, including negligence, breach of express and implied warranties, and strict products liability, the plaintiff alleged that over a period of several years he was a frequent guest in his uncle’s home, and often spent the night there, and that the uncle would come home in his work clothes covered in asbestos dust. The plaintiff further alleged that his uncle would often play with him and sometimes sleep near him while still in his work clothes, and that his exposure to the asbestos dust was a contributing cause of his disease.

Relying on Campbell v. Ford Motor Co. (2012) 206 Cal.App.4th 15, the trial court granted the manufacturer’s motion for a nonsuit,  finding that there was no duty to the plaintiff for any exposure to asbestos through contact with an employee, as none of the exposures took place at or inside the defendant’s plant.  However, the court of appeal reversed, holding that under the circumstances a duty of care did extend to members of the employee’s household who were likely to be affected by toxic materials brought home on the worker’s clothing: Read the rest »

Worsham v. O’Connor Hospital, (Sixth District, April 23, 2014) 2014 WL 2085555, — Cal.Rptr.3d —-, 14 Cal. Daily Op. Serv. 5525

An elderly woman who suffered a broken arm and broken hip as a result of a post-surgery fall at a hospital transitional care unit, filed an action against the hospital, alleging violation of the Elder Abuse Act (Wel. & Inst.Code, §§ 15600, et seq.). The plaintiff alleged that the unit was chronically understaffed, and did not adequately train the staff it did have. The plaintiff also alleged that the defendant was aware that she had a risk of falling, and that the defendant should have provided a “sitter” as recommended by the patient’s physician.

The trial court sustained the defendant’s demurrer to a second amended complaint without leave to amend, and the court of appeal affirmed, holding that absent facts indicating recklessness, the failure to provide adequate supervision would constitute professional negligence but not elder abuse: Read the rest »

Martinez v. County of Ventura, (Second District, April 8, 2014) 225 Cal.App.4th 364, 169 Cal.Rptr.3d 880, 14 Cal. Daily Op. Serv. 3825, 2014 Daily Journal D.A.R. 4418

A man who was rendered paraplegic when his motorcycle struck an asphalt berm abutting a raised drain on the shoulder of a county road, filed an action against the County.  The plaintiff contended that the defendant’s “top-hat drain system,” a heavy steel cover on three legs elevated eight to ten inches off the ground with a sloped asphalt berm to channel water into the drain, constituted a dangerous condition of public property under Government Code  § 835. The County asserted a number of defenses, including design immunity under § 830.6, which provides that a public entity is not liable for an injury “caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval.”

A jury found that the drain system was a dangerous condition that caused the plaintiff’s injuries, but also found for the County on its design immunity claim and rendered a verdict for the defendant.  However, the court of appeal reversed, holding that the evidence was insufficient as a matter of law to support the jury’s finding of design immunity, and that the jury’s finding of a dangerous condition would be binding on retrial:

Read the rest »