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" »

Cadam v. Somerset Gardens Townhouse HOA, (Second District, September 28, 2011, as modified October 28, 2011) --- Cal.Rptr.3d ----, 2011 WL 5110249, 11 Cal. Daily Op. Serv. 13,305

A 63 year old woman who was injured when she fell after tripping on a separation in a concrete walkway next to the townhome she was leasing, filed an action against a homeowner’s association and its management firm. Asserting causes of action for premises liability and negligence, the plaintiff alleged that the walkway had shifted and adjacent sections had separated such that they differed in height by three-fourths to seven-eighths of an inch, creating a dangerous condition.

Following a jury verdict in favor of the plaintiff, the trial court granted the defendants' motion for judgment notwithstanding the verdict. Although the HOA association president had testified that a defect of one-half inch or more is “probably” dangerous, the court found that no reasonable person could find that the condition was not a trivial defect under the circumstances.

The court of appeal affirmed, holding that “[a] trivial defect is no less trivial when it exists on a walkway in a privately owned townhome development”:

Continue reading "PREMISES LIABILITY: TRIVIAL DEFECTS" »

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" »

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:

Continue reading "SCHOOL DISTRICT LIABILITY: SPECIAL NEEDS STUDENTS" »

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:

Continue reading "PREMISES LIABILITY: NON-DELEGABLE STATUTORY DUTIES" »

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:

Continue reading "PREMISES LIABILTY: NEGLIGENT SECURITY" »