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" »

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" »

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:

Continue reading "NEGLIGENT HIRING: POST-TERMINATION MISCONDUCT" »