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

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.