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.

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.

RECENT MAJOR CALIFORNIA ACCIDENTS

The first accident that comes to mind is in San Francisco, where a crew on a boat that was in a yacht race in the San Francisco Bay was lost at sea. Only 3 of the 8 persons on that boat made it to safety. This yacht race recently resumed. As reported in the San Francisco Examiner “Bay Area yacht racing to resume a month after fatal Farallon Islands accident”.

The next accident is eerily similar, occurring soon after the first, but in Southern California. That accident involved yacht that was in a race from Newport to Ensenada. Although that death is the first in that race’s history, it is certainly not the only death in boating recently.

CAUSE OF ACCIDENTS

The issue in both of those boating accidents is the cause of the accident. US Sailing is working with the U.S. Coast Guard to figure out what went wrong during these boating accidents. Whether the accidents were caused by operator error (negligence), by a poorly built boat (product liability) or by mother nature, the boating community is demanding answers.

If this blogger had to guess, the cause would be mother nature combined with some operator mistakes. But the main cause would be the large waves that sometimes envelope boats in the ocean. But this blog’s entry’s purpose is to discuss how boating accidents apply to the average person.

STATISTICS

Boating deaths shot up by 12.8 percent in 2011. Boat deaths are at the highest level since 1998, according the a report released by the U.S. Coast Guard. (US Coast Guard Report) According to that same report, in 2011, the Coast Guard counted 4588 accidents that involved 758 deaths, 3081 injuries and approximately $52 million dollars of damage to property as a result of recreational boating accidents. The most common types of vessels involved in reported accidents were open motorboats (47%), personal watercraft (19%), and cabin motorboats (14%). That means that by far the majority of accidents involve the boats that everyday people bring out to the lake and reservoir every summer.

SAFETY

Safety is very important when boating. Although the majority of boating accidents are caused by a boating operators negligence, death from that accident is usually because the victim of the accident was not wearing a life jacket. Although this blog focuses on the legal principals involved with boating, it is important to remember to always wear a life jacket when on the water.

NEGLIGENCE STANDARD

Just like in a car or truck, the operator of a boat has a duty to use reasonable care when operating. That means that the general principals of negligence apply. The operator has a duty to act like a reasonable person would in the same or similar circumstances. Most people comply with this general principal. Local reservoirs have rules to remind people how to behave when they are operating the boat. For example, one rule at the reservoir is having all the boats move in the same general direction on the lake. That is like driving on the correct side of the road in a car. Another rule is slow down when coming to shore, like slowing for an intersection in a car.If you have been in a boat accident it is important to contact a Central Valley boating accident attorney like the The Bogan Law Firm, A Professional Corporation. A review of your case is important to determine if there may be someone at fault in the accident. Also a review is needed to see if there may have been a defect in the boat which was being operated that caused the accident

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.