The following are cases and awards that address various issues that may be encountered in a personal injury claim.
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Personal Injury Issues
Personal injury issues are the various types of injuries you may experience resulting from an accident. Personal injury issues are also the various ways you could become injured. Remember to immediately seek medical help should you be involved in an accident and suffer bodily injury.
Back Injury at Work
Delton R. Fair v. BNSF Railway Company
Plaintiff Delton R. Fair was working on the railroad. After he injured his back and knee while trying to throw a switch, he brought this action against BNSF Railway Company (BNSF) under the Federal Employer’s Liability Act (FELA) (45 U.S.C. Â§ 51 et seq.), alleging that he was injured as a result of BNSF’s negligence. A jury found in Fair’s favor and awarded him a total of $3,216,000 in damages.
BNSF’s primary argument on appeal is that the Federal Railroad Safety Act (FRSA) (49 U.S.C. § 20101 et seq.), and the regulations promulgated thereunder, preclude Fair’s FELA claim in its entirety. In support of its argument, BNSF relies on the authority of several federal appellate courts. Guided by recent court decisions that have reanalyzed the preclusion issue in light of the United States Supreme Court’s recent decision in POM Wonderful v. Coca-Cola Co. (2014) U.S., 134 S.Ct. 2228 (POM Wonderful), we reject BNSF’s argument, and instead conclude that FRSA and its regulations do not preclude federal claims under FELA. We reject BNSF’s other contentions in the unpublished portion of the opinion.
Gym Treadmill Injury
Etelvina Jimenez v. 24 Hour Fitness USA, Inc.
Plaintiffs Etelvina and Pedro Jimenez appeal from summary judgment in favor of defendant 24 Hour Fitness USA, Inc. (24 Hour) in plaintiff’s negligence action stemming from a catastrophic injury sustained by Etelvina while using a treadmill at 24 Hour. Plaintiffs asserted that 24 Hour was grossly negligent in setting up the treadmill in a manner that violated the manufacturer’s safety instructions. 24 Hour moved for summary judgment, contending that it was not liable as a matter of law because Etelvina signed a liability release when she joined the gym. The trial court agreed and granted summary judgment.
On appeal, plaintiff contends that the trial court erred in granting summary judgment in 24 Hour’s favor because: (1) the liability release is not enforceable against plaintiff’s claim of gross negligence; (2) the release was obtained by fraud and misrepresentation; and (3) the release only encompasses reasonably foreseeable risks and Etelvin’s injury was not reasonably foreseeable at the time she signed the release.
The third contention is forfeited for purposes of this appeal, but we agree with the first two contentions. Accordingly, we reverse.
Statute of Limitations and Medical Providers
Asma Pouzbaris v. Prime Healthcare Services-Anaheim, L.L.P.
Plaintiff Asama Pouzbaris appeals from the summary judgment entered in favor of defendant Prime Healthcare Services-Anaheim LLP dba West Anaheim Medical Center. Plaintiff’s complaint alleged that while she was a patient at defendant’s hospital, she slipped and fell on a recently mopped floor that lacked any warning signs. Defendant obtained summary judgment on the ground plaintiff’s action was barred by the one-year statute of limitations period imposed by the Medical Injury Compensation Reform Act of 1975 (MICRA) (Stats. 1975, 2d Ex. Sess., ch. 1, § 25, pp. 3969-3970, § 1.192, pp. 3991-3992) under Code of Civil Procedure section 340.5 (all further undesignated statutory references are to this code).
The question on appeal is whether a hospital’s purported conduct in mopping a floor and failing to provide warning signs constitutes a professional negligence within the meaning of section 340.5 rather than ordinary negligence subject to the two-year limitations period under section 335.1. The California Supreme Court recently granted review of a case involving the similar issue concerning a hospital’s alleged negligence in allowing a patient’s bed rail to collapse. (Flores v. Presbyterian Intercommunity Hospital (2013) 213 Cal.App.4th 1386, review granted May 22, 2013, S209836.) We conclude the current action falls within the two-year statute.
Negligent Supervision by School District
J.P. v. Carlsbad Unified School District
A jury found defendant Carlsbad Unified School District (CUSD) liable for negligently supervising an elementary school teacher, Raymond Firth, who sexually molested plaintiffs J. P. and E. B. (together, the minors). The jury awarded the minors economic and non-economic damages. After entering judgment on the jury’s verdict, the trial court denied CUSD’s motions for judgment notwithstanding the verdict and for a new trial. Firth was a defendant in the trial court but is not a party to this appeal.
CUSD contends the court erred in denying its motion for judgment notwithstanding the verdict (and its earlier motion for nonsuit) because (1) the minors did not file a government claim with the CUSD within the required six-month period (Gov. Code, § 911.2) and (2) the evidence did not support the minors’ argument that CUSD was equitably estopped from enforcing this limitation. CUSD also contends the court erred by providing incorrect jury instructions, and an insufficient special verdict form, on the issue of equitable estoppel. CUSD further contends the court erred in denying its motion for a new trial because the evidence did not support the jury’s award of future economic damages to the minors. We conclude the evidence supported the application of equitable estoppel and the trial court did not otherwise err. We therefore affirm.
Gross Negligence required Under Assumption of the Risk
Tanya Honeycutt v. Meridian Sports Club, L.L.C.
Plaintiff and appellant Tonya Honeycutt suffered a knee injury during a kickboxing class, while being assisted by an instructor at defendant and respondent Meridian Sports Club, LLC dba Meridian’s Bodies in Motion (Meridian). The trial court granted Meridian’s motion for summary judgment, ruling that Honeycutt had signed a valid waiver of liability, Meridian did not act with gross negligence, and the doctrine of primary assumption of the risk barred relief. In her appeal, Honeycutt argues there are triable issues of material facts regarding whether the instructor’s conduct (1) increased the risk inherent in kick boxing and (2) constituted gross negligence. We affirm.
Trip and Fall on Public Property Requires Constructive Notice
Menahem Heskel v. City of San Diego
Description: Menahem Heskel (Heskel) sued the City of San Diego (City), claiming he suffered personal injury from a dangerous condition of public property, when he tripped over a protruding base of a hollows metal post (condition) cemented into a city sidewalk. (Gov. Code, Â§ 835); all statutory references are to the Government Code unless otherwise noted.) The trial court granted the City’s motion for summary judgment, finding, as a matter of law, the City lacked constructive notice of a dangerous condition. (Code Civ. Proc., § 437c.).
On appeal, Heskel contends the trial court erred because triable issues of fact remain about whether the City had constructive notice of the condition, based solely on the length of time it was present. We disagree. Because Heskel failed to present any evidence that the condition was obvious such that the City, in the exercise of due care, should have become aware of it, his claim must fail as a matter of law, notwithstanding his evidence that the condition was present for over one year before his accident. (§ 835.2, subd. (b).) We affirm the summary judgment.
Insurance Company Negligent Misrepresentation
Michael Bock v. Craig Hansen
A 41-foot long, 7,300 pound tree limb crashed onto the home of appellants Michael and Lorie Bock, an incident they reported to their homeowner’s insurer, Travelers Property and Casualty Insurance Company (Travelers). Travelers assigned respondent Craig Hansen to adjust the loss, whose behavior, as alleged by the Bocks, can best be described as appalling. On Hansen’s first visit to the scene (which lasted no more than 15 minutes), he altered the scene before taking pictures, spoke derogatorily to Mr. Bock, and misrepresented the policy coverage, causing the Bocks to begin the clean up themselves, in the course of which Mrs. Bock was injured. Travelers refused the Bock’s request to replace Hansen, who in the course of adjusting the loss is alleged to have revised an estimate to include a false statement by the Bocks, conspired with an unlicensed contractor to create a false report, and engaged in various other misconduct.
The Bocks sued Travelers and Hansen, their claims against Hansen alleging negligent misrepresentation and intentional infliction of emotional distress. The trial court sustained Hansen’s demurrer without leave to amend, concluding that the Bocks have presented no convincing argument for allowing these claims to stand against defendant Hansen in what is a contract based action. We conclude otherwise and reverse, holding first that negligent misrepresentation can be asserted against an insurance adjuster, and that such claim was adequately pleaded here. We also hold that the intentional infliction of emotional distress claim was not adequately pleaded, but that the trial court abused its discretion in denying leave to amend.
Liability for the Sale of Alcohol
Faiez Ennabe v. Carlos Manosa
Beginning in 1971 this court decided three cases that together reversed decades of previous law and recognized, for the first time, that sellers or furnishers of alcoholic beverages could be liable for injuries proximately caused by those who imbibed. (Vesely v. Sager (1971) 5 Cal.3d 153; Bernhard v. Harrah’s Club (1976) 16 Cal.3d 313; Coulter v. Superior Court (1978) 21 Cal.3d 144.) In 1978, the Legislature abrogated the holdings of those cases, largely reinstating the prior common law rule that the consumption of alcohol, not the service of alcohol, is the proximate cause of any resulting injury. (Bus. & Prof. Code, § 25602, subd. (c); Civ. Code, § 1714, subd. (b).) The Legislature’s action in essence created civil immunity for sellers and furnishers of alcohol in most situations. The Legislature also enacted section 25602.1, which created some narrow exceptions to this broad immunity, and we find one such exception relevant to this case. In addition to permitting liability in some circumstances for the provision of alcohol (i.e., the sale, furnishing or giving away of alcoholic beverages) by those licensed to sell alcohol (or who are required to be licensed), section 25602.1 also states that another person who sells alcoholic beverages (or causes them to be sold) to an obviously intoxicated minor loses his or her civil immunity and can be liable for resulting injuries or death. Liability of such another person[s] is limited to those who sell alcohol; civil immunity is still the rule for nonlicensees who merely furnish or give drinks away.
We consider in this case whether defendant Jessica Manosa can be liable under the foregoing exception when, at her party, an underage, intoxicated guest who was charged a fee to enter consumed alcoholic beverages defendant supplied and subsequently, in a drunken state, killed someone in an automobile accident. To assist in resolving the issues in this case, we solicited and obtained the views of the Department of Alcoholic Beverage Control, the state agency charged by our state Constitution with enforcement of the laws relating to the consumption of alcoholic beverages in this state. (Cal. Const., art. XX, § 22, fifth par. Plaintiffs do not challenge the lower court’s ruling in favor of codefendants Carlos and Mary Manosa, Jessica’s parents. Accordingly, we refer to defendant Jessica Manosa only.
After considering the views of the parties and the Department of ABC, we conclude the pleaded facts, which allege defendant charged an entrance fee to some guests (including the minor who caused the death), payment of which entitled guests to drink the provided alcoholic beverages, raise a triable issue of fact whether defendant sold alcoholic beverages, or caused them to be sold, within the meaning of section 25602.1, rendering her potentially liable under the terms of that statute as a person who sold alcohol to an obviously intoxicated minor. Having reached this decision, we need not, and thus do not, address the further question whether defendant might also be liable on the ground she was a person who was required to be licensed who furnished alcohol to an obviously intoxicated minor.
Because the Court of Appeal affirmed the trial court’s grant of summary judgment in defendant’s favor, we reverse.
Motor Vehicle Accident
Ed Aguilar v. Larry Gostischef
This personal injury lawsuit following a motor vehicle accident has spawned years of litigation. In the first appeal, we reversed the entry of a judgment notwithstanding the verdict and ordered the trial court to reinstate the $2.3 million verdict in favor of respondent Ed Aguilar. The trial court reinstated the verdict and then ordered appellant Farmers Insurance Exchange (Farmers) to pay Aguilar’s costs. The costs were substantial because Aguilar had made an offer pursuant to Code of Civil Procedure section 998 (section 998), which Farmers had rejected. In this appeal, Farmers cites no case suggesting it was improper for the trial court to consider whether an insurer may be liable for an excess judgment when evaluating whether a section 998 offer was reasonable, and we decline to be the first court to so hold. We affirm the cost award.
Neighbor Recovers for Injury to Pet
David Plotnik v. John Meihaus, Jr.
Plaintiffs David and Joyce Plotnik sued their neighbor, defendant John Meihaus, Jr. (Meihaus), and two of his sons, defendants Greg Meihaus and John Meihaus III, alleging both contract and tort claims. In part, plaintiffs sought recovery for the emotional distress they suffered when Meihaus injured their dog. The superior court entered a judgment on jury verdicts that awarded David Plotnik over $175,000 against all defendants and Joyce Plotnik over $255,000 against Meihaus. The awards included emotional distress damages resulting from the dog’s injury. In response to defendant’s motion for new trial, the superior court entered an amended judgment after plaintiffs accepted a remittitur reducing the damage awards to $146,600 for David Plotnik and $205,209.53 for Joyce Plotnik. The court also granted plaintiffs $93,780 in attorney fees against Meihaus on the breach of contract claim.
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