Products Liability and Injury Lawyer Blog

Agustus Vogt v. Herron Construction, --- Cal.Rptr.3d ----, 2011 WL 5142986, 11 Cal. Daily Op. Serv. 13,556

A concrete subcontractor was injured at a construction site when he was run over by a personal vehicle owned and driven by an employee of another contractor. He then filed an action against the driver's employer under the doctrine of respondeat superior, alleging that the employee had accidentally run him over while moving his own pickup truck in order to allow the concrete subcontractor’s employees to begin pouring cement nearby.

The defendant moved for summary judgment, contending that its employee was not acting in the course and scope of his employment at the time of the accident, because he was moving his personal vehicle, which was not required for his job, and was doing so for a non-work-related purpose of preventing damage to the truck from splashing of wet concrete.

The trial court granted summary judgment but the court of appeal reversed, holding that by moving his truck, the worker was furthering the employer’s overall enterprise, and that moving the truck was necessary to “his comfort, convenience and welfare while on the job”:

Continue reading "RESPONDEAT SUPERIOR: COURSE AND SCOPE OF EMPLOYMENT" »

Diaz v. Carcamo, (California Supreme Court, June 23, 2011) --- P.3d ----, 2011 WL 2473597

A woman who was injured in a freeway collision filed an action for negligence against the driver of a truck which collided with her vehicle. The plaintiff also sued the driver’s employer under a theory of negligent hiring and retention. The defendant employer offered to admit vicarious liability, arguing that, under Armenta v. Churchill (1954) 42 Cal.2d 448, its admission should preclude a cause of action for negligent hiring, retention and entrustment. However, at trial the court permitted the plaintiff to proceed on the negligent hiring and retention theory, and over objection of the defendants, allowed evidence of the driver’s prior accidents and employment history.

The court of appeal affirmed a jury verdict in favor of the plaintiff, holding that Armenta was distinguishable because it involved entrustment instead of hiring, and did not involve an allocation of comparative fault. However, the California Supreme Court reversed, holding that where an employer admits vicarious liability for any negligent driving by its employees, a plaintiff may not pursue a negligent entrustment, hiring or retention claim:

Continue reading "NEGLIGENT ENTRUSTMENT: TRUCKING ACCIDENT" »

Nalwa v. Cedar Fair, L.P., (Sixth District, June 10, 2011) --- Cal.Rptr.3d ----, 2011 WL 2279049, 11 Cal. Daily Op. Serv. 7167, 2011 Daily Journal D.A.R. 8575

A physician who suffered a fractured wrist while riding in a bumper car at an amusement park filed an action against the owner of the park, asserting claims for negligence and common carrier liability. The plaintiff alleged that her car was hit head-on by another bumper car, and then immediately hit from behind, causing her to be injured when she attempted to brace herself. The plaintiff further alleged that while the defendant’s four other parks were configured so that cars could only be driven in one direction, the only steps to prevent head-on collisions at the subject park were post-collision admonitions to riders from park employees.

The trial court granted summary judgment, finding that the doctrine of primary assumption of the risk barred recovery both as to regular negligence and common carrier claims, and that the defendant did not have a duty to reduce risks that are inherent to bumper car riding. The court of appeal reversed, holding that amusement park rides are not the type of sport or activity susceptible to the primary assumption of risk analysis:

Continue reading "PRIMARY ASSUMPTION OF THE RISK: AMUSEMENT PARK RIDES" »

Iversen v. California Village Homeowners Association, (Second District, March 23, 2011) --- Cal.Rptr.3d ----, 193 Cal.App.4th 951, 2011 WL 1034261, 11 Cal. Daily Op. Serv. 3584, 2011 Daily Journal D.A.R. 4282

A heating and refrigeration contractor who was injured in a fall from a ladder while servicing air conditioners at a condominium complex, filed suit against the homeowner’s association which had hired him. The plaintiff asserted a negligence per se cause of action, contending that the defendant had violated Cal-OSHA regulations which require a cage or other safety device for ladders taller than 20 feet, such as the one being used at the time of the accident.

The defendant moved for summary judgment, arguing that because the plaintiff was an independent contractor, and not an employee, it was not required to comply with Cal-OSHA regulations and did not owe him a duty of care. The trial court granted the motion and the court of appeal affirmed, holding that Cal-OSHA regulations do not apply to an independent contractor, and therefore could not be used by the plaintiff to establish negligence per se:

Continue reading "NEGLIGENCE PER SE: CAL-OSHA REGULATIONS" »

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:

Continue reading "LIABILITY RELEASES: GROSS NEGLIGENCE" »

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:

Continue reading "EMOTIONAL DISTRESS: CONSUMER REVIEW WEBSITES" »

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:

Continue reading "NEGLIGENT ENTRUSTMENT: CAR RENTALS" »