This ruling by this California appellate court is an unpublished opinion, meaning it is only binding on the case which they ruled. Although the ruling is unpublished, it does illustrate the rules when suing the employer of an employee.

Members of the religion engage in field service, which involves preaching door-to-door and distributing religious literature. While performing field service, members don’t ask for donations, although they can accept them. The congregation was made up of elders, ministerial servants, pioneers, and publishers. The last were rank and file members. Pioneers were an appointed volunteer position with slightly more hours in preaching work than publishers. Watchtower was the publisher of the religion’s written materials and, prior to the Christian Congregation of Jehovah’s Witnesses overseeing the governing body, was the managing entity.

On the date of the collision, the driver and three female members of the Bancroft Congregation met with a plan to perform field service. They went to the territory where they would preach. Other congregation members were also doing field service. The driver drove to the neighborhood. At around 9:45, they started preaching. After 90 minutes, they were done for the day. They chatted for a while, and the driver offered to take the others to Burger King for lunch and drive them home afterward. While on their way to Burger King, the car collided with the bicyclist. They waited for a police officer and then went to eat.

The bike rider settled with the driver and then sued two Jehovah’s Witness entities: Watchtower Bible and Las Lomas Spanish Congregation of Jehovah’s Witnesses. He argued that the two entities were liable for the driver’s negligence under a theory of respondeat superior. Under this doctrine, a principal can be held liable for an agent’s negligence as long as the negligence happens in the course and scope of the agency. It is most often used in an employment context, whereby an employer is held liable for an employee’s negligence.

A third religious entity appeared by consent. Together, the defendants moved for summary judgment. The motion was granted on the grounds that the driver was not the defendant’s agent and that she wasn’t acting in the course and scope of agency at the time of the collision. The plaintiff appealed.

The appellate court explained that, even assuming there was an agency relationship, the driver in this case was acting outside the course and scope of her agency. A principal cannot be held liable for an agent’s negligence once the work is completed, except in certain circumstances. Under the going and coming rule, when an agent is traveling to or from the workplace, the agency relationship is suspended, and the agent’s actions are not conducted within the scope of agency as a matter of law. In this case, the accident happened after she was done working for the day.

The plaintiff argued that the case wasn’t barred by the going and coming rule because the driver’s actions came within the required vehicle exception. This exception applies when the use of a personal vehicle is an express or implied condition of working at a particular place.

The plaintiff relied on a wrongful death case in which a Catholic priest was temporarily living in California to serve the needs of Basque Catholics. While driving back to Fresno after ministering to a family in a nearby city, he crashed into another vehicle, resulting in the death of those in the other vehicle. The heirs won in a wrongful death suit against the Bishop, since the priest had been acting in the course and scope of his agency with the Bishop. His work on the date of the accident was of incidental benefit to the Bishop, and he had to use his car to accomplish the ministerial work.

The appellate court explained that in contrast to the wrongful death action, in this case, the driver’s vehicle wasn’t an express or an implied condition of doing field service, and most members of the congregation didn’t own a motor vehicle. The judgment was affirmed.

Whether you are bringing a lawsuit for injuries you’ve suffered or because you’ve lost a loved one in a wrongful death, it is important to retain an attorney that understands all possible theories of recovery. If you’ve suffered injuries or a loved one has died due to someone else’s negligence in Modesto, the Bogan Law Firm may be able to represent you in a personal injury lawsuit for damages. Contact us at (209) 565-3425 or via our online form.

Blog posts

Modesto Area Car Accident: Negligence to Blame for Death of a Child, January 12, 2014
Dog Bite Liability and Halloween, October 28, 2012

These numbers show us that more and more adults are riding bicycles than ever before. This is particularly true in urban areas such as Modesto, California, which boasts many impressive bicycle trails. In addition, the summertime brings upon more bicyclists which can lead to more fatalities or injuries.

If one is injured in a bicycle accident, what limitations are placed on an uninsured California bicyclist’s rights to recover damages, if he or she is hit by a car and severely injured? The calculation of damages can be complex, especially when an accident victim is an uninsured bicyclist who has not been able to pay his or her own substantial medical bills after a serious accident.

In Bermudez v. Ciolek, a bicyclist was struck in Fountain Valley, California (350 miles south of Modesto) by a car during a traffic light transition from green to red. A first driver going westbound began a left turn as a second driver traveling eastbound entered an intersection. The second driver’s car veered to the southeast corner of the intersection, striking Omar Bermudez, who was standing on the sidewalk astride his bicycle. At the time of the crash, Bermudez didn’t posses medical insurance.

The jury found both defendants had acted with negligence, but it concluded that only the westbound driver caused the bicyclist’s harm. The westbound driver was found 100% responsible for the $3,751,969 in damages.

On appeal, the driver argued this verdict was inconsistent because the jury did find the other driver negligent but didn’t assign him a percentage of fault. Alternatively, she claimed she was entitled to a new trial on damages because there was not enough evidence of the bicyclist’s reasonable medical damages. She faulted the bicyclist for relying on expenses already incurred and expert testimony, and she argued that the plaintiff’s experts needed to do more to show their testimony was based on the market value of the services.

The appellate court explained that multiple witnesses, including three accident reconstruction experts, testified at trial. The westbound driver was negligent due to factors such as the color of the light as she started to turn left, her attentiveness to traffic conditions before her, her reaction when observing the approaching vehicle, and the position of the vehicle at impact.

The appellate court reasoned that the jury credited evidence that tended to show she started her turn before the light turned red, but she wasn’t adequately monitoring the traffic approaching and then braked when she saw the eastbound driver, blocking the traffic lanes.

The appellate court also explained that eyewitnesses had offered different estimates of the eastbound driver’s speed. While the accident reconstruction experts all agreed that he was going 45-48 miles per hour, they agreed his stated speed of 50 mph fit. Only the westbound driver’s expert was of the opinion that the other driver was going more than 60 mph. In general, there was no showing at trial that the eastbound driver’s car wouldn’t have ricocheted into the bicyclist had he been going slower.

The court explained that the jurors had found the eastbound driver negligent but didn’t find it a substantial factor in causing the bicyclist harm. To understand this better, the elements of negligence are (1) duty, (2) breach of duty, (3) actual and proximate cause, and (4) damages. The jury found that the eastbound driver had a duty and breached that duty, but it didn’t find element 3, which is that the breach of duty caused the accident. Since all four elements must exist to hold a defendant responsible for negligence, the appellate court didn’t consider a finding that element 2 existed inconsistent with a finding that element 3 did not exist.

With regard to the amount of damages, the court noted the bicyclist had no medical insurance and sustained multiple injuries. The bicyclist testified the amount of his bills was about $450,000 and that he couldn’t pay any of his bills. Multiple experts testified as to the future medical treatment he would need in the future, and the costs.

The court explained that there is no bright line rule in case law on how to determine the reasonable value of medical bills that uninsured plaintiffs have incurred by not paying medical bills. However, the court concluded that, contrary to the defendant’s argument, the plaintiff’s uninsured status meant that the billed amounts were relevant to what he actually incurred, unlike insured plaintiffs who only really incur the lower amount negotiated by an insurer. These amounts were also relevant and admissible with regard to the reasonable value of his medical expenses.

The court also explained that damages for past medical expenses are the lesser of: (1) what has been paid or incurred for past medical expenses or (2) the reasonable value of the services. In this case, nobody had paid for the plaintiff’s medical expenses, so the operative measure of damages was the jury’s sense of the reasonable value of the services. The court found the jury’s award slightly too high and reduced it, but otherwise it affirmed the judgment.

When a car hits a bicyclist in California and elsewhere, the results can be catastrophic for the bicyclist, while the driver of the car walks away unscathed. If you’ve suffered a bicycle accident in Modesto, the Bogan Law Firm may be able to represent you in a lawsuit for damages. Contact us at (209) 565-3425 or via our online form.

Blog posts

Modesto Area Car Accident: Negligence to Blame for Death of a Child, January 12, 2014
Dog Bite Liability and Halloween, October 28, 2012

Family Raising Money To Pay For Her Death And Medical Expenses

Notwithstanding any legal remedies the family might have, they are being proactive with trying to offset the costs associated with her death and medical intervention. If you would like to donate you can find the link here to GoFundMe. The typical funeral cost between $8,000 and $10,000 in California. In addition we have seen medical bill running into the hundreds of thousands of dollars in cases not leading to death. Depending on what type of medical intervention was done here will dictate the amount of the bills. But promise you this, they are not cheap.

Wrongful Death and Negligence In California

In California civil law, the term of art we use for a lawsuit for a death of a loved one is called a Wrongful Death Lawsuit. Wrongful Death can be based in many theories of law, but int his case it appears to be based in a Negligence Theory. Civil law dictates that the a negligent party can be held liable for Wrongful Death. In order to prove Negligence, a plaintiff must show that a duty owed by the defendant was breached, and that the breach was both an actual as well as the proximate cause of their loss. The purpose of a wrongful death action is to compensate survivors of the departed, deter future wrongful conduct, and to define which damages are recoverable. In other words, if negligence is proven by preponderance of the evidence in a civil suit for Wrongful Death, then the survivors who bring the lawsuit can be compensated for such loss. The amount of compensation depends on the value of such life as determined by the parties or the jury. The problem is that a child’s life is much more difficult to put a value on and therefore generally receive less recovery than an adult whose life value is much more easily calculated.

Calculating Damages For Death Of Child In California For Wrongful Death

It is easier to calculate the monetary loss of an adult whose death was caused by the negligence of another in California. The family of an adult who has died and bring suit for Wrongful Death, the family can calculate how much economic benefit the of that now deceased member. They know how much money that person made from their job and potentially how much that person could bring over their lifetime. A child who sues for the wrongful death of their parent can allege loss of support, guidance, care, love and income of the deceased parent.

Compare this to the loss of a child. The parents of a child who had died at the result of the negligence of another is limited in their recovery for a wrongful death lawsuit. The law does not leave the potential negligent party unaccountable. The parents of a child can bring a Wrongful Death lawsuit against a negligent party who causes the death of their child. In a wrongful death action involving the death of a minor child, there are two categories of damages which may be recoverable. The first of those two categories is 1) economic damages which include loss of future financial support, loss or benefits or gifts from the departed, funeral and burial expenses, as well as the value of household services the departed would have provided. The second category is 2) non-economic damages which account for the loss of the child’s love, companionship, comfort, care, assistance, protection, affection, society and moral support. As illustrated in the Modesto Bee’s story about Mariah’s life and tragic death, the value of her existence was priceless to her family.

The law provides no recourse for the deep pain that the Izzo’s are undoubtedly feeling. Yet, this beautiful and vibrant soul has left a legacy, not only in the hearts and memories of her loved ones, but also for recipients of organs donated by her family.

Mariah may ultimately save the lives of several children blessed to receive her final gift. Her father calls her his “little hero”. Let’s hope that our Justice System will be the champion of her legal rights, as well as that of her family’s. Justice must be done so that we can rest assured, that those mistakes which take but a second to make with effects that ripple across generations’, will not be forgotten.

If you or someone you know is looking for a Modesto Wrongful Death Attorney, contact the The Bogan Law Firm, A Professional Corporation.

As the spring weather heats up, more and more Modesto and Stockton families and ‘weekend warriors’ will be ‘hitting the road’ to their respective recreational destinations. Unfortunately, some of these families will be injured in an car accident. As traffic increases along with the seasonal temperatures, so too does the risk of being involved in vehicle collisions which may cause personal injury. These circumstances necessitate enhanced vigilance with regard to road safety by those behind the wheel or otherwise on the road. Driving defensively and maintaining constant awareness of one’s surroundings while driving greatly decreases the risk of being involved in an accident. The following tips should prove helpful:

• Maintaining an appropriate distance from the car ahead
• Ensuring that lane changes and turns are made only when it is completely safe
• Avoiding driving while under the influence of alcohol, drugs or heavy medication
• No driving when suffering from exhaustion or fatigue
• Eliminating driving distractions such as eating smoking and cell phone use.

Tips like these and more can be found at the National Highway Traffic and Safety Administration (NHTSA)

Your Rights as a Victim of Negligence

However, in the event that a person does find themselves in such an unfortunate circumstance, they may have means of recourse in a Personal Injury Attorney (through Civil Litigation). In vehicle collisions, as well as other accidents (incidents) involving negligence, wrongdoers and negligent parties may be held accountable through the Civil Justice System. Negligence involves the breach of a duty which causes damages or injuries to innocent parties. In the following case, The Modesto Bee reports that a 31 year old Murphy’s Woman crashed head-on into a tree in an attempt to avoid a deer. At a glance, any negligence would appear to be absent from the case, yet, upon further investigation or discovery as it is called in Civil Litigation, facts may be revealed to show not only that the driver was not at fault, but that another entity (aside from the deer, of course) may be at fault.

Hypothetically, the area surrounding French Gulch Road in Sonora, a rural and moderately forested area, may have a dense deer population, which arguably presents a hazard to drivers. Such a hazard could be considered a dangerous condition, and a failure to warn drivers on the part of the entity with domain over it, could impute liability.

Governmental Liability

In all likelihood, the road in the case mentioned above is maintained by a government entity, an issue which presents its own legal hurdles. There is a possibility that the road was not maintained correctly or the government failed to warn drivers of known hazards. For example a deer crossing waring sign is an example of when the government properly warns drivers of dangerous conditions.A person with a potential civil claim against a local government entity, for instance, must comply with the California Government Tort Claims Act (Government Code §814, et Seq.) or The Federal Tort Claims Act. The time limits and procedural requirements under which a lawsuit subject to these regulations are very strict. For example, in order to sue Stanislaus County or Modesto, or one of their employees, the complainant must first file a claim with the local government entity concerned. Under California Law, such local claims must be filed within 6 months of the harm to the complainant, without fail. In the event the claim is not filed under these deadlines, the injured party may not proceed to file a civil lawsuit. Once the government entity has received the claim, it has 45 days to either honor or deny the claim, and in the event of a denial the injured party must adhere to another 6 month time constraint within which the civil claim must be filed with the Superior Court. Again, failure to adhere to the time limitations at this juncture eliminates the complainant’s ability to recover through litigation.

Loyal Advocacy

Unforeseen circumstances and legal intricacies’ with which most laypersons are unfamiliar make consultation with a personal injury attorney a prudent decision. Nearly all personal injury attorneys, including the author of this article, offer free personal injury consultations, and upon an agreement to render legal services, will take such cases on a contingency fee basis. This means the injured party, or plaintiff as such a person is called in civil litigation, pays nothing up front, leaving the attorney without compensation until he is successful in obtaining a settlement or judgment in his client’s favor.

As an advocate for individual and consumer rights, I take pride in helping injured persons recover their losses by holding responsible parties accountable.

If you or a loved one has been injured or killed in an incident where negligence may have been a factor, please do not hesitate to contact the The Bogan Law Firm, A Professional Corporation for a free consultation.

As a Modesto personal injury lawyer, this writer was all ears when he was informed that Toyota was settling a class action lawsuit for 1.1 billion dollars. The settlement may be the largest ever against an automaker according to attorneys representing some of the plaintiff’s. A U.S. judge in Santa Ana, California granted preliminary approval on December 28, 2012 to Toyota’s $1.1 billion settlement of a class-action lawsuit. The lawsuit was brought by Toyota owners who claimed they lost value on their cars due to unexpected, sudden and unintended acceleration. U.S. District Judge James Selna has scheduled a hearing in June of 2013 regarding the final approval of this settlement.

Millions Of Automobiles Covered
According to class action court papers there are over millions of Toyota brand automobiles covered by the settlement, including Toyota, Lexus and Scion vehicles sold in the United States between 1998 to 2010. Toyota has maintained in press releases previously and continue to maintain that actual gas pedal electronics are not at fault, but blame poor fitting floor mats. In addition, a study commissioned by National Highway Traffic Safety Administration and NASA found no link between alleged reports of unintended acceleration and Toyota’s gas peddle electronics.

Wrongful Death and Personal Injury Cases Not Included

This settlement does not affect the over 300 wrongful death and personal injury claims stemming from allegations of sudden acceleration which caused injury or death to persons. This writer of this blog although fascinated by the billion dollar settlement by Toyota is more interested in the outcome of the 300 plus personal injury lawsuits against Toyota.

The lawsuits against Toyota were consolidated in federal court and put into one of two categories (1) economic loss from falling car value and (2) wrongful death or personal injury claims. The settlement deals only with the first category and not the wrongful death or personal injury claims. Those other claims are still moving forward through the court system.

Since Toyota is not making an admissions of wrongdoing related to this issue, these lawsuits are likely to proceed, unless Toyota settles the personal injury suits, which this writer is doubtful. Toyota will most likely want a jury to decide actual liability related to the wrongful death and personal injury portions of the lawsuits.

As readers of this blog are familiar, in the California Supreme Court case of Greenman v. Yuba Power Products, Inc. (1963) 59 Cal. 2d 57, made it easier for injured parties to recover for products that cause injury to them. Previous to this case, the plaintiff had to prove that the product was negligently produced in order to recover for damages caused by a product. This case makes manufacturer’s of products strictly liable for injuries cased by their products. Plaintiff’s who are residents of California will be arguing for the strict liability rules for products should be applied to their lawsuits against Toyota.

It’s not going to be an easy win for plaintiff’s in the personal injury lawsuits. The plaintiff’s still have the burden of proof to prove that the product is in fact defective which in turn caused the injury or death. This writer assumes there will be experts from both sides, the plaintiff and Toyota regarding the defect or lack of defect in the Toyota gas pedal. In addition, Toyota will surely argue that their product did not cause the injury at all and that it was caused by human error or other cause which the jury could find Toyota not liable.

If found liable, it could prove to be very costly for Toyota. If not found liable, the Toyota can put this issue behind them and move forward. The problem is the legal battle is far from over and the issue of liability will not be settled anytime soon.

If the gas pedal gets stuck or unexpectedly accelerates you should

• Shift the transmission to neutral
• Turn off the ignition switch
• Apply the brakes and pull over

If you, a family member or a loved one has been injured due to an defective product or car, you can contact the The Bogan Law Firm, A Professional Corporation for a confidential consultation.

The name of the child was not released nor would it be blogged here anyhow. In any event, local news outlets such as the Stockton Record and News 10 in Sacramento have reported two children were in the back seat of a Ford Fusion which was hit from behind by a two truck traveling the same direction on Eastbound Highway 4. Once child, a toddler was killed and the other was placed in critical condition as of Friday night. The California Highway Patrol has also reported that the tow truck driver was not under the influence of drugs or alcohol. The tow truck company is out of Manteca, California, which is located between Modesto and Stockton.

This accident will surely lead to a civil liability on behalf of the two truck driver and the company for whom he works. In light of this tragic event, it is still important to review the legal principles behind accidents such as this.

Negligence

Again as written in previous blog entries, negligence is the failure to exercise the care that a reasonably person would under the same circumstances. The question is whether the driver of the tow truck acted as other drivers would under the same circumstances. To prove the tow truck driver civilly liable under a negligence theory the plaintiff must prove (1) The driver owed a duty to other drivers (2) The driver breached this duty (3) The case of the accident was the driver’s breach of this duty and (4) The plaintiff sustained injury.

Under the facts known here, there was some type of traffic jam on Highway 4 in Stockton. The tow truck driver although traveling under the speed limit, still ran into the back of the Ford Fusion, containing the two children. An ordinary prudent driver would have slowed in time to avoid a collision. This is especially true since the driver was from a local company and should have been away of the frequent traffic jams on this particular stretch of highway. Even if he or she was unaware of the usual traffic jams on this highway, a prudent driver would not hit someone from the rear anyhow. The driver of a car who hits another car from behind is almost certainly held civilly liable for damages. This theory of rear end collisions is almost common knowledge.

Vicarious Liability

If readers remember from previous blog entries, then they will remember that vicarious liability is when one person is held civilly liable for the wrongs that are done by people who they direct or control. The most common example of vicarious liability is with the employer-employee relationship.

Under this theory of liability, employers can be held liable for their employee’s wrongdoing when the employee is acting “within the scope of employment.” There are several questions the law tries to answer when determining whether the person acting was acting as an employee or as an individual. (1) Did the conduct occur during the time limits of the employment? (2) Did the conduct occur within the space limits of the employment? (3) Was the individual serving the needs of the employer? (4) Was the conduct which caused the harm something that the employer hired the employee to do?.

Here, the tow truck driver was driving a tow truck on a highway near the location of his company. It would be assumed that Manteca tow trucks would be driving in this area as it is within a 10 minute drive of Manteca. In addition, the driver was driving during the day time on a highway, which suggests the driver was doing exactly what he was hired for. Although the company may have a different version of events, it is going to be difficult for them to wiggle out of being liable for their employees action.

News Sources
Stockton Record
News 10 – Sacramento

For any questions or comments contact The Bogan Law Firm, A Professional Corporation

NEGLIGENCE

The law does not require that older persons refrain from driving. What is required though is that each driver exercise care when operating a motor vehicle. In order for the people to recover for damages sustained by this 100 year old driver, they have to prove the driver acted with negligence when the car ran out of control injuring them. It’s not a question of whether the person is old who is behind the wheel, it is a question of whether the driver acted negligently.

As explained to readers in previous blog posts negligence is simply the failure to exercise the care that a reasonably prudent person would in the same situation. In other words, did the driver proceed the same way other drivers would under the same set of facts? Readers are likely to remember that there are five elements to negligence (1) Duty (2) Breach of Duty (3) Cause in Fact (4) Proximate Cause (5) Harm or Damages.

Assuming Mr. Carter failed to stop as he backed he car onto the sidewalk where pedestrians were located, the question becomes, would a ordinary driver act the same way that Mr. Carter acted under those circumstances? The answer is a resounding no. An ordinary driver in those same circumstances would have not continued to back his car into pedestrians, plain and simple. Mr. Carter owed a duty of care while operating his vehicle and he did not exercise care. In other words he breached the duty he owed the community. 11 people where injured, including children that would not have been caused unless they were ran into by the car driving by Mr. Carter. Lastly, those who were hit were absolutely injured and many were put into the hospital. Therefore the argument can be made that Mr. Carter acted with negligence and could be held liable for such.

PRODUCTS LIABILITY

Mr. Carter is claiming that his brakes in his car had failed. As reported in the Huffington Post, Mr. Carter told KCAL, “My brakes failed. It was out of control.” For the sake of argument assume that Mr. Carter is correct and his brakes did fail. Under that theory the people injured could potentially sue the car manufacturer or brake manufacture if the accident was caused by some manufacturing defect. An injured person is likely to see a greater recovery if successful by suing a big company because companies have much more money than Mr. Carter would have under his insurance company. That is an assumption but is true for most people driving today. A failure of brakes under this scenario is very unlikely. For the sake of this discussion we will revisit the principals of product liability.

If the readers remember from my earlier posts I have explained that under the California Supreme Court ruling in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal. 2d 57, a plaintiff alleging manufacturing defect only has to show that there is a product that was manufactured and that product failed causing injury. This is known as “strict liability”, meaning that a manufacturer is liable for any damages cause by the failure of their product even if the manufacturer took extraordinary care in producing the product.

Mr. Carter claims his brakes failed. This could be a situation where the injured sue the brake or car company directly or Mr. Carter would file his own lawsuit against the brake or car company to recover any damages from them in order to pay the victims that were injured. Either way, the pedestrians here are not at fault and they will most certainly recover for their losses.

If you have any questions about car accidents, negligence or products liability feel free to contact the The Bogan Law Firm, A Professional Corporation for a confidential consultation.

Although self-driving Google cars are very exciting, our Modesto car accident law offices are more concerned about the liability aspects of such a car. This article focuses on the legal issues of this technology. Who is liable for an accident involving a self driving car?

Negligence
Self driving cars will still have the ability of having the operator take over the controls. So if the other driver was negligent, for example there was human error as the cause of the accident, then clearly the injured party can recover for their injury. Human error is the number one cause for auto accidents in California and the rest of the United States. But what if the accident in one of these self-driving cars was not human error, but manufacture defect? Who is liable then?

Products Liability

Negligence Theory (OLD)

Many years ago the law was that you had to have privity of contract to sue for a defect in a product. For example if you were in Modesto, California and you purchased a ACME lawnmower from the local hardware store and that lawnmower exploded and injured to you, then you could not sue ACME lawnmower company. Why? Because you did not contract directly with ACME to buy the mower, you bought it from a third party. Interesting right? Well now you can forget that concept because it is no longer the way things are done.

The first change in the law came with the famous New York case n the case MacPherson v. Buick Motor Co. (1916) 217 N.Y. 382, 111 N.E. 1050. In MacPherson, the plaintiff bought a Buick car from the local dealer. When driving the car’s wood wheel broke and obvioulsy made the car wreck. MacPherson sued the manufacter of the car, Buick. Buick argued that there was no privity of contract directly with MacPherson and therefore they could not be sued. That argument was rejected not only did the court rule that Buick had a duty to inspect the wheel, which they didn’t, but they were liable for the damages caused by their defective product, i.e the Buick car. Because of this case you can sue a manufacture of a product even though you did not buy it directly from the manufacturer. In fact, if you are a third party injured because of a defective product you can sue as well.

Strict Liability

Under MacPherson the plaintiff (the injured person) still had to prove negligence on the part of the manufacturer in order to recover damages. Fast forward from 1916 to 1963 and travel from New York to California. The California Supreme Court, in the case Greenman v. Yuba Power Products, Inc. (1963) 59 Cal. 2d 57, removed the requirement that the plaintiff prove negligence in order to recover damages from a manufacturer of a defective product. This case welcomed the theory of strict liability for products produced. That means that if someone is injured by a defective product the manufacturer can be found liable even if the manufacturer was not negligent in producing the product.

Liability Exceptions

The California legislature has not decided whether to exempt manufacturers of liability for cars produced that are self-driving cars. The most recent legislation at the time of this article is California Senate Bill 1298, introduced by Sen. Alex Padilla (D-Pacoima). The bill authorizes testing of the self-driving vehicle. Our neighbor to the east, Nevada has issued such an exemption of manufacturer liability. In Nevada for example the “operator” of the car is liable for damages caused by the self-driving car. The “operator” is liable even when it was not operator error that caused the accident. The “operator” is the person who commands or tells the car to drive.

Conclusion

It is still an open question as to whether the manufacturer of a self-driving car would be liable for an accident caused by product liability. It is almost certain that an exclusion to liability will be debated by the California Legislature, but it is unsure how the legislature will vote on that issue. Even if strict liability remains the products liability standard in California, Google or other companies will continue to develop this technology because the good from the technology will outweigh the bad. Human error will virtually be eliminated from the equation, which contribute for almost all car accidents currently. This technology will cut down on accidents and on balance it is better than what we have now.

Vicarious Liability

Vicarious liability makes one person liable for another persons actions. There are many times when this type liability applies. One common example is the employer-employee situation. In terms of the law this is called the doctrine of respondeat superior.

Under the doctrine of respondeat superior, employers are liable for their employee’s wrongdoing and their torts when the employee is acting “within the scope of employment” To prove that the employee was acting withing the scope of their employment the moving party must establish (1) the conduct occurred within the time and space limits of their employment (2) the employee must have been serving the needs of the employer and (3) the act must have been for what the employer was hired to do.

Government Employees

The government is not liable for their employees actions under the common law theory of respondeat superior, but are liable because the government has passed legislation that allows a person to sue them. In order to sue the government or one of their employees you have to comply with the California Government Tort Claims Act (Government Code § 814, et seq.) or the Federal Tort Claims Act. There are very strict time limits in which to bring a lawsuit under these provisions. For example to sue a Stanislaus County, Modesto employee or any government employee, there must first be a claim made with the local government. In California, that claim must be made with the local governmental entity within 6 months of the harm. There is no flexibility with this rule. If it is not adhered to, then there cannot be a lawsuit filed in court. The local governmental entity has 45 days to accept or deny the claim. Once the claim is denied you have 6 months to file suit in a California court.

California Tort Claims Act & Federal Tort Claims Act

Under the California Tort Claims Act, a public employee is liable for injury caused by his act or omission to the same extent as a private person. (Cal.Gov. Code, § 820(a).) There are some exceptions, but that is for another discussion. The point here is that if the government employee could have been sued in a private capacity, then they can be sued for their negligence while working on behalf of the government. If found liable, then the government would be required to pay the verdict amount. (pending any appeals)

Negligence

This article is not going to explain in depth the principles of negligence. However it is important to note that negligence is actions that are carelessness, not intentional. Sometimes it is said that negligence is a failure to exercise the care that a reasonably prudent person would in the same or similar circumstances.

There are five elements to negligence (1) Duty (2) Breach of Duty (3) Cause in Fact (4) Proximate Cause (5) Harm or Damages

It is imperative that a California personal injury attorney be consulted immediately for the types of claims mentioned in this article. Modesto personal injury lawyer, Tai C. Bogan is available via email or phone if you have any questions about this article or any personal injury case. Our Modesto personal injury law firm handles claims against government employees and their employer (the government) for the negligence of the government employee.

PASSENGERS can still collect money for pain and suffering.

Pain and suffering damages are important. Injury from a car accident can be as little as a sore neck to paralysis or death. How much is the pain and suffering from a broken neck worth, may you ask? Well, if you were the driver of a car and you were uninsured, then zero according to California law. The reason you cannot collect non economic damages as an uninsured motorist is because in 1996 California voters passed Proposition 213 which was aimed at making more California drivers get insurance. This proposition which bars uninsured motorist from collecting non-economic was codified in California Civil Code § 3333.4(a)(2).

Not only have appellate courts continued to uphold this provision in the law and deny people from seeking non-economic damages, an appellate court recently extending denial of non-economic damages further. In Chude v. Jack in the Box, Inc. (2010) 185 Cal. App. 4th 37, is illustrative of this extension. In that case Teckla Chude suffered major burns on her body because of a scolding hot coffee from a coffee purchased in the Jack in the Box drive through had spilled from the cup from the unsecured lid into the seat of her pants.

The question is not whether Jack in the Box was negligent, but whether Chude could seek damages for pain and suffering. Chude was uninsured as she went through the drive through at Jack in the Box and was subsequently burned. This trial court granted Jack in the Box’s motion for summary adjudication on Chude’s non-economic damages claim. The Second District Court of Appeals in this above case upheld the ruling that non-economic damages are not allowed where the driver of the car is uninsured, even where there is no car accident.

The good news is that about 85 percent of motorists carry insurance. That means if you were in an auto accident and you were not at fault, then you can have your lost wages paid to you, your hospital bills paid and receive money for pain and suffering.

The The Bogan Law Firm, A Professional Corporation based in Modesto, California, can help protect your right to damages for pain and suffering. If you have been injured in an accident do not wait to consult with an auto accident attorney. In California you only have 2 years to file a lawsuit against a private citizen and only 6 months to begin your claim with the government.