This ruling by this California appellate court is an unpublished opinion, meaning it is only binding on the case which they ruled. Although the ruling is unpublished, it does illustrate the rules when suing the employer of an employee.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

California Code of Civil Procedure § 437c read in relevant part, “Any party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding…”

Essentially, if a motion for summary judgment is granted the trial court is dismissing the case and not allowing the parties to proceed in court. The trial court does not always make the final decisions on these types of issues. A party to an action can appeal or seek a ruling of a higher court, known as an appellate court.

A party to an action can appeal or seek a ruling of a higher court, known as an appellate court. For example a recent ruling by the The Court Of Appeal Of The State Of California Second Appellate District Division Five reversed a lower trial court’s ruling regarding a Motion For Summary Judgement. In Jacinto v. Caruso Management Company, the plaintiff sued a property management company for negligence and premises liability after tripping on a wheel stop concrete block in a disabled parking area next to the pedestrian walkway. The wheel stop was five inches high and painted blue with the words “CHASE” on it. The ramp next to it was made of white concrete, the pavement was black, and the accessible walkway was blue.

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 shed light on the summary judgement rules when applied to premises liability.

On the day of the plaintiff’s fall, her daughter parked to the left of the wheel stop. The plaintiff got out of the passenger side and walked into the bank, looking at the bank doors. When she came out of the bank, she walked down the ramp and tripped at the bottom of the ramp by the wheel stop.

The defendant argued that it owed her no duty because the hazard was open and obvious and because it didn’t know about the possible danger. It also argued that there was no triable issue of material fact about whether the wheel stop had caused the fall. In response, the plaintiff argued that the dangerousness and the open and obvious nature of the hazard as well as the defendant’s knowledge were triable issues of fact. She argued the wheel stop caused the fall.

The trial court granted summary judgment on the grounds there was no issue of fact as to causation. The plaintiff appealed. The appellate court explained that there were several disputed facts. For example, a state-licensed contractor submitted a declaration stating that the wheel stop was readily noted by an ordinary person, the plaintiff could have avoided it, and its placement didn’t violate any laws or regulations. The blue color was standard. A civil engineer retained by the plaintiff argued that the placement violated the ADA accessibility guidelines and the American Society of Testing and Materials‘ standard practice for safe walking conditions, among other things. He declared that the closeness of the blue walkway and wheel stop made it hard to see the wheel stop.

The appellate court explained that premises liability is a type of negligence. An owner of property in California owes a duty to use ordinary care in managing the property in order to avoid placing people at an unreasonable risk of harm. In this case, the defendant argued that it owed no legal duty to the plaintiff because it had no notice of the danger.

The court pointed out that the defendant inspected the lot twice a day, and the plaintiff’s expert had stated the wheel stop in the lot was a dangerous condition. Therefore, the defendant would have constructive notice, at least for purposes of a summary judgment motion. The appellate court also explained that the plaintiff’s expert had called the area visually confusing because of the blue paint. Since there was conflicting evidence, the defendant didn’t meet its burden on summary judgment of proving the plaintiff couldn’t satisfy the element of duty.

The appellate court also found the defendant’s causation arguments had no merit. A plaintiff needs to show a substantial link between an action or omission and her injury. However, whether the defendant’s actions actually caused the plaintiff’s injury is a factual question. The plaintiff had testified she either tripped or caught her foot on the wheel stop. The defendant tried to show an inconsistency in her testimony, but the appellate court found none. The order granting summary judgment was reversed.

If you’ve suffered injuries due to a slip and fall on somebody else’s Modesto property, The Bogan Law Firm, A Professional Corporation may be able to represent you in a premises liability 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

Busiåness and Professions Code section 25602.1 reads, “a cause of action may be brought by or on behalf of any person who has suffered injury or death against any person licensed, or required to be licensed, pursuant to Section 23300,. . . who sells, furnishes, gives or causes to be sold, furnished or given away any alcoholic beverage . . . to any obviously intoxicated minor (emphasis added) where the furnishing, sale or giving of that beverage to the minor is the proximate cause of the personal injury or death sustained by that person.” (Bus. & Prof. Code, § 25602.1.)

This means that the provider of alcohol must use reasonable care to ensure the person receiving the alcohol is not an “obviously intoxicated” minor. (Schaffield v.Abboud (1993) 15 Cal.App.4th 1133, 1141.) Under this section the term “minor” means someone under 21. (Rogers v. Alvas (1984) 160 Cal.App.3d 997, 1004.)

Recently, a jury in Southern California awarded $40 million in damages to the parents of a 33-year-old man who was stabbed to death in an argument at a Riverside TGI Friday’s. The man was at the restaurant with his girlfriend when the girlfriend’s son, a 20-year-old, approached with his friend, who was 27. The man and the girlfriend’s son got into a fight, and the man was stabbed. Officers arrested the girlfriend’s son and his friend. The man died after the fight at Riverside Community Hospital.

This is one of Riverside County’s biggest civil court verdicts ever. In the criminal case, the 27-year-old was charged with murder but pled guilty to assault with a deadly weapon. The girlfriend’s son was charged with assault with a deadly weapon and also pled guilty.

The decedent’s parents filed suit against both TGI Friday’s and the restaurant operator in civil court. They argued that the restaurant purposely didn’t check the ID of the underage assailant and kept providing him with alcohol after he was obviously drunk.

The jurors found the restaurant operator 55% responsible for the death, while the attackers were found 45% responsible. The verdict form shows that the award was for the loss of their son’s “love, companionship, comfort, and care,” among other things.

Remember generally, the bar owners cannot be held liable, but here, because there were minors involved, other rules apply. Liability is possible when the bar serves minors alcohol who are visibly drunk already. In those cases, someone who is injured because the business served an obviously drunk minor can sue the business for compensation for a number of losses. In this case, the plaintiffs were able to show that the minor was visibly drunk because he ordered the equivalent of 12 servings of alcohol in 30 minutes.

Losses that can be claimed from the restaurant in a situation similar to this include medical bills, emergency care, lost wages, permanent disability, the cost to repair or replace property, and pain and suffering. In the context of wrongful death, parents or children can recover for loss of love or companionship. There are strict statute of limitations for filing a claim, so it is always best to consult with an attorney regarding these types of claims.

Additionally, another theory relevant to this lawsuit was negligent security. Under California law, when there is a heightened foreseeability of third-party criminal activity, a business proprietor owes an obligation to provide guards or other security measures to protect the safety of patrons.

A duty of affirmative action only applies to a restaurant, however, if the criminal action can be reasonably anticipated. For example, if the restaurant was regularly the site of violent bar fights, it might have had a duty to protect against the stabbing of the decedent, separate from its duty not to serve an obviously drunk minor. In this case, the lawsuit alleged a pattern of assaults at the restaurant and a lack of security cameras.

If you’ve suffered the unexpected loss of a loved one due to someone else’s negligence or reprehensible conduct in Modesto, The Bogan Law Firm, A Professional Corporation may be able to represent you in a wrongful death 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

Where the other party is negligent in causing such injury, the plaintiff can be awarded money damages after a trial. Most cases do not go to trial but are settled after negotiating with insurance or other companies. However, when John Hendrickson had his leg crushed on August 27, 2009. He was hit by while riding his motorcycle while riding in a remote area of California’s San Diego area. A Border Patrol Officer in a truck came around a sharp turn at an unreasonably high rate of speed. The officer did not see Hendrickson and the truck collided with the motorcycle.

Hendrickson suffered severe fractures and had one of his legs amputated below the knee, forever changing his life. As a recording artist and motorcycle enthusiast, his lingering pain and the emotional trauma keep him from working and partaking in the same activities he always enjoyed. He went through 6 months of post open treatment for a comminuted distal femur fracture and dealt with several other injuries. Hendrickson filed a negligence lawsuit against the United States government and on June 20, 2014, the court awarded him 5.4 million dollars. This large verdict was reported by ABC New 10 in San Diego.

Federal Tort Claims Act

One may think that the almighty government is an ironclad battleship, impenetrable to lawsuits, but that is not true. Although it is not as simple to sue the government as it is to sue a citizen, it can be done, as Hendrickson demonstrated.

Under the 11th Amendment, sovereign immunity prohibits citizens from suing a state. However, in 1948 when the Federal Tort Claims Act was enacted, it allowed citizens to sue the United States in federal court for torts committed by persons acting on behalf of the government. A tort is a civil wrong for which no criminal punishment will remedy the harm.

In this case, the Border Patrol Officer was acting on behalf of the government because his duty was to patrol areas around the U.S. border and prevent illegal entry into the country. Furthermore, he was driving a Border Patrol issued Chevrolet Silverado truck around the Otay Mountain Truck Trail, which demonstrates he was under the color of the government at the time and place of this incident.

Failure To Negotiate Backfires

The defendant in this case was the federal government and their agent, the driver of the other vehicle who injured Hendrickson. The defendant in the case refused to negotiate with Hendrickson or his lawyers, offering no money damages for the case. If this were a normal case where an insurance company was involved, the defendant might bring a bad faith denial claim against the insurance company for opening the defendant open to serious liability because the insurance company failed to negotiate in good faith. However, this was not the case here, and that discussion will need to wait to another blog entry.

Federal Courts

The federal judiciary comprises the United States Supreme Court, United States Court of Appeals, and United States District Courts. Hendrickson’s case was heard in the Untied States District Court for Southern California. So, although it was in a federal court (federal law), California tort law (negligence) applied because the case was brought under the Federal Tort Claims Act.

Limitations

The Federal Tort Claims Act does not open the floodgates for endless suits against the government every time a police officer or postal worker is rude to you. Rather, it provides a platform to recover for harm suffered at the hand of the government due to egregious behavior. Several constraints are listed below:

• Liability will not include interest prior to judgment or for punitive damages. This means that the Hendrickson’s judgment did not include interest from the time of his injury to the time of the judgment. Punitive damages are designed to punish the tortfeasor and deter such conduct.
• The law of the state where the act or omission occurred will apply. This means that although the case was heard in a federal court, the law of California will apply because that is where the act of negligence by the Border Patrol Officer occurred.
• Claims based upon performance or failure to perform a discretionary function or duty are exempt. This means that a citizen cannot sue the government for a government agent making a discretionary judgment that is part of their job.
• A number of intentional torts are exempt. Intentional torts require the element of either specific or general intent. Under the common law of torts, an intentional tort is typically deemed to be a substantial deviation from the scope of employment, and therefore the superior is not usually held liable.
• Intentional torts of investigative or law enforcement officers are not exempt. This means that if a government agent with authority to enforce the law commits an intentional tort then the limitation will not apply

Negligence

In this case, the Border Patrol Officer was found liable for negligence. Since we already established that the officer was acting on behalf of the government, the government is liable for the damages award.

Negligence requires (1) A Duty Owed To Someone (2) Breach Of Duty Owed (3) Actual Causation; (4) Proximate Causation; and (5) Damages.

The court in this case found that the Border Patrol Officer had a duty to the plaintiff to exercise ordinary caution as a fellow driver on the road. The officer breached that duty by driving at excessive speed and failing to adhere to his training of driving as slowly as possible around blind turns. He was the actual cause of Hendrickson’s injuries because but for speeding around the corner he would not have collided with Hendrickson; he may have had time to swerve around him or apply the breaks. The officer was a proximate cause because it was foreseeable that speeding around the mountains on rough terrain with blind turns and drop-offs could result in a sudden collision and major injuries.

Damages

Actual damages must be proven in a negligence case. Here, Hendrickson had a lengthy list of injuries and medical bills. The court also found specials in evidence of almost $590,000, which contributed to the total award.

Comparative Negligence

California adheres to the pure comparative negligence theory. Under this principle, if the plaintiff is at fault to some degree, he may still recover damages minus his degree of fault. Here, it was found that the officer was 85 percent liable and Hendrickson was 15 percent liable. Therefore, Hendrickson’s net award of about $5.4 million was calculated by reducing the $6.3 million sum of damages by 15% (Hendrickson’s degree of fault), leaving him with 85 percent of that amount.

In sum, the Hendrickson decision revealed that the government can be sued for tortious acts committed by their agents and that all drivers need to be aware of motorcyclists. Those who have been or know somebody is has been injured in a motorcycle accident should contact the The Bogan Law Firm, A Professional Corporation immediately.

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.

Dog Statistics

According to a 2011-2012 APPA National Pet Owners Survey 62% of U.S. households own a pet. Of those homes with pets, there are 46.3 million homes in the United States with a least one dog. The Centers for Disease Control reports that more than 4.7 million people are bitten by dogs each year. The CDC also reveals that of those 4.7 million people, 800,000 of them seek medical treatment for those bites and half of those seeking treatment are children. There are more than 386,000 people that require medical treatment in an emergency room from dog bite injuries. Sadly, 16 people die each year from dog bites in the United States. Children are the most at risk for injury, specifically those children between the ages of 5 to 9. About 2/3 of the injuries to children ages 4 and younger are to the head and neck region.

Insurance Payouts

According to a press release by State Farm Insurance, one of the nation’s largest home insurers, they paid more than $109 million on about 3,800 dog bite claims nationwide in 2011. The Insurance Information Institute (III) estimates that nearly $479 million in dog bite claims were paid by all insurance companies in 2011. In California alone there were 527 State Farm dog bite claims and 20.3 million dollars in payouts.

California Strict Liability Law

Under the scenario where the child is bitten by a dog while trick or treating, the dog owner is liable for any injuries caused by the dog. Under California Civil Code § 3342 a dog owner is strictly liable for injuries caused by their dog. That means that even when the dog is normally gentle and calm, when that calm easy going dog bites someone, the owner is on the hook for the damages caused by their dog. There are few exeptions and limited defenses. But at the end of the day, the dog owner would be liable if their dog bit a trick or treater, and that is the point of this blog post.

Halloween Tips For Dog Owners

• Keep dogs indoors and away from the front door where trick or treaters knock
• If you want to have your dog near the door to greet visitors, keep them on leash
• Keep a firm grip on the leash; many dogs are frightened by people in costumes
• Many dogs will run after trick-or-treaters so be sure to put up a gate to prevent escape
• Place your dog in a quiet room especially if you dog is aggressive or is anxious
• If the animal is very high-strung, consult your vet about tranquilizing for the night
• Give the dog a new chew toy to keep them occupied
• Play music or leave a TV or radio playing in the dog’s room to help mask Halloween sounds
• Close drapes so that the dog does not see people coming and going through the window
• Try to watch and anticipate trick or treaters so they don’t ring your door bell or knock on the door

Tips For Trick or Treaters

In addition from taking precautions at home to prevent your dog from biting trick or treaters, it is equally important that you take precautions to prevent dogs from biting your own children. The main thing to remember is that Halloween can make dogs unpredictable so children should be aware of that fact. Here are some additional tips:

• Teach children never to run from a dog who approaches them, especially when they have a Halloween costume on
• Carry both a flashlight and pepper spray while out with children trick or treating
• Never let children trick or treat without a responsible adult
• Teach children never to walk into someone’s home on Halloween no matter how inviting

Following the tips listed in the article are helpful hints that can keep your dog and your children safe. If you or someone you know is bitten by a dog, whether on Halloween or not, the bite victim should immediately seek medical attention. After seeking medical treatment the bite victim or their family should contact Modesto dog bite attorney Tai C. Bogan at The Bogan Law Firm, A Professional Corporation for aggressive representation.

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.

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.

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.