Oakland Personal Injury Lawyer Blog

An Alameda man was arrested following a hit and run auto accident in which one man was killed in Hayward on January 28, 2011. Juan Nunez was charged with two counts of hit and run and vehicular manslaughter charges. Mr. Nunez is accused of driving his Land Cruiser into the side of a Toyota Tundra causing the driver of that vehicle to loose control and strike a light pole.

Drunk drivers are civilly liable for compensatory damages for personal injuries and wrongful deaths caused by their negligent driving. These damages would include compensation for medical expenses, loss of earnings, loss of earning capacity, and non-economic damages for pain, suffering, loss of enjoyment of life, and other non-monetary losses. Drunk drivers may also be held liable for punitive or exemplary damages. These are money damages which are meant to punish the drunk driver. The amount of the punitive damages is not set by law, but is related to the recklessness of the conduct of the drunk driver, and the wealth of the drunk driver.

As an Alameda personal injury lawyer, I have represented many victims of drunk driving. I am also a lawyer on MADD's panel of attorneys who represent those who are injured or killed by drunk drivers. Over the past several years I have seen that the amount of drunk driving and fatal accidents has gone up and down. Studies have shown that alcohol related fatalities were highest in California in 1982. There was then a steady decline in both the total number of drunk driving deaths and injuries until 1998. After that the trend started upwards again. In 2006, 30% of all auto related deaths involved drunk drivers. As a society, we must do all we can by way of education, and appropriate legal penalties, both civil and criminal, to reduce the numbers of these alcohol related deaths and injuries.

Resources:

Oakland Tribune, Manslaughter, DUI charges sought in fatal Hayward crash, January 28, 2011

Alcohol Alert, California Drunk Driving Statistics

As a father of four children, it seems that I am constantly having releases of liability thrown in my face when my kids participate in activities as mundane as playing basketball, or going on school activities, etc. You have probably seen the releases: In big bold print (or sometimes not such big print) they will state something like "This is a Release/Waiver of Liability" The activity your child is participating in has inherent dangers. If he or she is injured, you promise not to sue us, etc. The question often arises whether these releases are enforceable.

A recent California case addressed this in the case of an equestrian accident resulting in the death of a 17 year old girl. The girl, according to the wrongful death suit, was permitted to participate in a competition with an unfit horse, which had recently suffered serious injuries, that were not reported to the parents. The court held that concealing this information and allowing the child to ride an unfit horse in the competition could equate to gross negligence. As a matter of public policy, waivers will not prevent lawsuits where there is gross negligence and therefore the court allowed the matter to go to trial.

As an Oakland personal injury lawyer, I see more and more of these waiver agreements where there have been personal injury accidents. You often see them in contracts for gym and fitness memberships, for sporting events, or children's activities. Each case involving a signed waiver or release of liability must be carefully scrutinized. There is a trend among the courts to enforce these agreements, but they can be defeated if the agreements violate public policy, are vague and ambiguous, or are not clear and conspicuous in the paperwork.

Resource

Eriksson v Nunnink, January 10, 2011

When you send out an email to a friend, your spouse, or even your lawyer, who has the right to see those emails? These emails may not be as confidential as you think.

In a recent California appellate case, Holmes v Petrovich Development Co., an employee sued her employer for sexual harassment and a hostile work environment. While working for the employer, she sent email to her attorney about the circumstances of her case. Normally, communications with your lawyer are protected by the attorney client privilege. That is what the employee claimed in this case. However, since her emails were from the company's computer, and the company had an express policy that such emails were not confidential, the court ruled that the emails to her attorney were not protected. It noted that if the same emails had been sent from her home computer, the communications would have been protected.

In another case, a corporation was held to waive its attorney client privilege when it distributed its emails intended for its attorneys to many different sources who were not attorneys (Muro v Target, 2007).

As an attorney representing personal injury victims in the Oakland and Alameda area, I am concerned about privacy issues such as this and the use of the internet in general. We seem to be losing our privacy bite by bite, and as the internet expands it will only worsen. The teaching point here, however, is to never communicate with your lawyer by email unless it is from your own personal computer, and certainly not the computer at work.

Resource:

California Court of Appeal Decision, Holmes v Petrovich Development Co., January 13, 2011

Muro v Target, November, 2007

An Alameda doctor is being charged with sexual battery after one of his patients reported that he had touched her inappropriately during a medical examination at an Alameda Medical clinic, AIA Health Services. The doctor had been working for the clinic for the past six years. The police indicate that other complaints may have been made against the doctor.

As an Alameda person injury litigation lawyer, I have seen the devastating effects that sexual attacks can have on their victims. I have represented individuals who like this Alameda woman have been sexually molested during routine medical examinations. It has always bothered me that the law protects employers of medical personnel who assault patients and are not held civilly liable for these attacks.

Normally, an employer is legally responsible for the personal injuries caused by their employees in the course and scope of their employment. But long ago, the California courts decided that it would not hold hospitals and other employers responsible for intentional sexual attacks by their employees even if done while performing hospital business. In Lisa M v Henry Mayo Newhall Memorial Hospital, the California Supreme court held that a hospital was not liable under the doctrine of respondeat superior for an ultra sound technician's sexual assault of a patient done during a routine examination.

From a public policy point of view, I feel these cases which absolve the employer from responsibility are wrongly decided. Who hires these individuals who commit sexual attacks? Who has the resources to investigate the employee's background? Who can monitor the individual's behavior? Who can best compensate the victim for the tremendous emotional harm done to the patient? The employer has the ability to do all of this, while the unfortunate patient can do none of this and puts all of her trust into her doctor's hands when she enters the examination room.

Resource:

Oakland Tribune, Alameda: Doctor accused of sexual battery, January 11, 2011

On January 11, 2011, a fifth grader was walking down the street in Vallejo when he was attacked by a pit bull. The pit bull had been under the control of a friend of the owner when he went after the young boy. The dog bite took a large piece of flesh out of the young boy's arm. Police are investigating whether the dog was intentionally let go, as claimed by the boy, or whether it escaped accidentally.

As an Alameda personal injury lawyer, the question arose in my mind, whether pit bulls are any more likely to bite and harm individuals than other breeds of dogs. It turns out the Center for Disease Control did a twenty year study to specifically address that question. The study covered the years 1979 through 1998. It looked at 25 different breeds of dog. The pit bull and the rottweiler were responsible for 67% of the dog bite related fatalities investigated, with the pit bull causing the most deaths.

The study seems to vindicate what we already intuitively know--Some breeds including the pit bull are simply more dangerous than others. Knowing this, shouldn't owners of such animals be required to take special precautions to protect the public from their dogs to prevent attacks like those against the young Vallejo boy? Shouldn't landlords and other property owners be held accountable for personal injuries when they let their tenants keep dangerous dogs on their premises, knowing they are more likely than other dogs to cause serious, and sometimes fatal injuries?

Victims of dog bites should know their legal rights. They may have legal recourse against the owner of the dog, and others such as landlords and property owners where the dog resides.

Resources:

ABC News, Pit bull attacks 5th grader, police won't treat as crime, January 12, 2011

CDC Special Report, Breeds of dogs involved in fatal human attacks in the United States between 1979 and 1998, September 15, 2000

Our California First District Court of Appeal recently decided that a professional truck driver may be responsible for personal injuries caused by the way he parked his truck. This is true even if the truck was legally parked. The case is Lawson v Safeway Inc.

The facts of the case are as follows: A large Safeway tractor trailer truck was parked legally at the side of the road on Highway 101 close to an intersection near Crescent City. The trailer blocked the view of drivers attempting to cross the intersection and turn onto the highway. The court held that the Safeway truck driver owed a duty of care to park his trailer in such an manner as to not increase the risk of harm caused by motorists using the highway. Since the driver was employed by Alameda based, Safeway Inc. at the time, Safeway was responsible under the legal doctrine of vicarious liability.

As an Oakland personal injury lawyer, I have represented many personal injury clients who were victims of truck accidents over the years. These cases are particularly interesting and challenging as there are many safety standards and regulations which apply to truck drivers which do not apply to ordinary motorists. Usually we must retain truck driving experts to testify about the standard of care with respect to driver's activities and what was reasonable under the circumstances. For example in the Lawson case, expert testimony was necessary to show that a professionally trained truck driver would not have parked his trailer in such a manner as to effect the sight distance of those using the nearby intersection.

Frequently, I see professional truck drivers double parking, parking with their trailers blocking drive ways and interfering with my ability to see the roadway clearly. I am glad that the appellate court has recognized that when these drivers do interfere with driver's safe use of the road, the can be held legally responsible for the injuries they cause.

Resource:

Lawson v Safeway Inc. December 30, 2010

As an Oakland personal injury lawyer, I am constantly representing folks in car accidents and motorcycle accidents. The California legislature has passed new laws affecting drivers of motorcycles and regular vehicles that go into effect this year.

Effective January 2, 2011, the following laws become effective:

Motorcycle drivers under the age of twenty-one will be required to complete a special motorcycle safety course before receiving their driving permit.

There are changes for drivers of hybrids and other fuel efficient cars. The prior law that permitted certain fuel efficient vehicles to display HOV stickers will be extened until July 1, 2011. Fully electric and natural gas vehicles will have white stickers which will be valid until July 1, 2015.

Effective July 1, 2011, in an effort of ensuring that traffic convictions are recorded by the Department of Motor Vehicles, local authorities may not enact or enforce a local ordinance on any matter covered by the California Vehicle Code. In Alameda, the local traffic court often charged a traffic violation under a local ordinance so the ticket would not go on the driver's record. This law will eliminate that practice.

Effective January 1, 2012, any drunk driver convicted of a third DUI can receive a ten year revocation of his license with possible reinstatement if certain conditions are met.

Hopefully, these new laws will make driving on our California roads a safer experience for all California drivers.

Resource:

California Department of Motor Vehicles, California DMV Announces New 2011 Laws

In 1963, Martin Luther King, Jr. wrote his famous letter from a Birmingham jail. In that letter he proclaimed: "Injustice anywhere is a threat to justice everywhere."

As an Oakland personal injury lawyer, I have tried many cases in front of many juries and I have often reminded juries of these important words written by Dr. King in 1963. The words are as true today as they were when originally written. While Dr. King was writing primarily about racial discrimination, he realized that these words that applied to all kinds of injustices. It applies to those stemming from political abuses of power, and corporate greed as well.

In my law practice I fight against corporate greed when I see insurance companies try to take advantage of my clients by denying and delaying payment of legitimate claims for personal injuries suffered in car accidents, and work place injuries, among others. I see corporate greed when insurance companies deny my client's claims for health insurance benefits after having paid premiums for years only to be told that the claims are for excessive or experimental treatment. I see abuse of political power when the government limits the claims of medical malpractice victims as it bows to the powers of the medical malpractice insurance lobbies and passes laws that severely restrict the rights of those injured by medical negligence.

As we commemorate Martin Luther King, Jr. today, let's remember the courage he had in fighting the great injustices of his time, which continue today. Let those words be an inspiration for lawyers such as myself who fight for justice for our clients. Let these words be a call to all American to never be complacent about any injustice in any form.

Resource:

Letter from a Birmingham Jail, April 16, 1963

2010 ended with the tragedy of 3 people dying in an apartment fire. The reports indicate that one of the tenants had her electricity shut off by PG & E. In order to help her out, one of the other residents allowed her to string an extension cord to her unit and draw power off of that. Unfortunately, this overloaded the circuit and caused a fire to break out.

The building was bank owned having been taken it over in a foreclosure. There were no operating smoke alarms in the units. Having properly installed and working smoke detectors could have save three innocent lives.

California law is very clear. The owner of an apartment building must keep its units in a habitable condition. It is considered "uninhabitable" if the premises fail to meet building codes, including working smoke detectors in units and common stairwells (Health & Safety Code section 13113.7).

When the owner of an apartment unit breaks the law by failing to have properly installed smoke alarms, it is responsible for personal injuries and wrongful deaths caused by the failure to comply with the law. As a personal injury lawyer in Oakland and the surrounding cities, we are seeing more and more properties being taken over by financial interests in foreclosures. These large institutions must be held to the same standards as individual apartment owners and keep their buildings safe for their tenants.

Resources:

SFGate.com, 7-year-old survivor of Oakland fire in legal limbo, January 1, 2011

California Department of Consumer Affairs, Landlord/Tenant Handbook

As an Alameda personal injury lawyer, I have written several posts about the dangers of texting while driving and how this activity can cause auto accidents resulting in serious personal injuries and death. A new video has been put out by AT&T, which shows the real consequences of this deadly habit. The video is entitled, "Dangers of Text Messaging and Driving."

The video dramatically tells the story of how lives were changed because of texting. In one instance, a driver looked away from the road momentarily and his car struck a bicyclist and killed him. In another story, a young girl was texting to her sister when the sister took her eyes off the road and ran into a highway embarkment, killing herself. In another, a young man ended up with permanent brain damage.

The dangers of texting are obvious. We take our eyes off the road while driving--It's like driving blindfolded. Studies now show that 28% of all accidents involve cell phone use. Texting while driving has been shown to be more dangerous than driving under the influence of alcohol. I have four children of driving age. I am making them all watch this video to show them the real dangers and consequences of driving while texting. I encourage all drivers, especially our young drivers, to watch this video and learn from the tragic mistakes of others.

Resource:

AT & T, Dangers of Text Messaging and Driving

On January 7, 2011, residents of the Marriott Hotel in San Francisco reported flu like symptoms from carbon monoxide exposure. The residents became ill after the odorless gas got into the ventilation system at the hotel. The San Francisco fire department is investigating the source of the gas leak, but feel it may have come from a nearby restaurant which recently had repairs done to its water heater.

Carbon monoxide, known as "CO" is an odorless, colorless, poisonous gas. Every year more than 150 people in the United States die as a result of non-fire related exposure to the deadly gas which can escape from incorrectly vented fuel burning appliances such as water heaters, furnaces, fireplaces, and stoves.

Hotel owners, like all business owners, have a legal obligation to keep their premises safe for their patrons. This means it must take all reasonably prudent steps to make sure unsafe conditions such as carbon monoxide do not threaten the safety of their patrons.

As a personal injury lawyer in the San Francisco area, I have personally handled cases against hotels where dangerous conditions led to serious personal injuries. I recall one personal injury case against the Kimco Hotel, in which their failure to properly maintain their chimney flue, cause a fire resulting in serious injuries to my clients.

As of January 1, 2011 I am pleased to see that the legislature has passed a law that requires all new building where people will be sleeping to be equipped with CO monitoring devices. For personal tips on CO safety, see the Consumer Product Safety Commissions publication "Protect your Family from Carbon Monoxide Poisoning."

Resource:

San Francisco Chronicle, Carbon monoxide sickens S.F. hotel guests, January 8, 2011

Last June, a taxi cab operator was driving two passengers from the San Francisco Airport to San Francisco when his cab began smoking. He pulled off Highway 280 at Mariposa Street. At that point the cab's brakes failed and he collided with a highway column at about 40 m.p.h. The cab burst into flames and both of his passengers died from burns at the hospital.

The police have not recommended what criminal charges, if any, should be filed against the taxi cab driver. The police presented a foot high stack of documents to the district attorney's office to decide what specific charges should be brought.

The cab company could also be liable for civil damages for the wrongful death of the two passengers. A cab company is considered a common carrier. Therefore, it is under the highest duty of care to protect its passengers from even the slightest degree of negligence (Civil Codes section 2100). In this case, there will be an inquiry into the maintenance of the brakes, the actions of the cab driver when the smoke began entering the cab, and the driver's conduct after the collision.

Common carriers are also required to maintain their vehicles in a safe condition so that they are fit for the purposes to which they are used (Civil Code Section 2101).

As an Oakland personal injury lawyer, I have fought several cases against cab companies over the years. I am aware that taxi cab companies are often self-insured and frequently present obstacles to quick and fair settlements of personal injury and wrongful death claims. Persons involved in auto accidents involving cabs should know their legal rights before attempting to deal directly with such companies.

Resource:

San Francisco News, CHP concludes probe into taxi crash that killed two, January 4, 2011

A recent report shows that San Francisco is one of the most dangerous cities in the country for pedestrians. The City averages 800 pedestrian accidents per year--an average of over two pedestrian accidents per day! The total number of accidents per year exceeds that of larger cities such as New York, London, and Tokyo.

The study shows that the primary cause of these accidents was driver inattentiveness and failure to yield the right of way. The design of the roadway, crosswalk, and site distances can also be contributing factors to pedestrian accidents (See Alameda Pedestrian Accident Raises Questions About Safety of Crosswalk).

The Federal Highway Safety Administration has adopted measures to help reduce pedestrian injuries and deaths. Over the past six years the Safety office has been working with states and cities to design safer pedestrian facilities and pedestrian safety action plans. It has produced a program entitled "Pedestrian Safety Strategic Plan." The program has helped reduce the number of pedestrian injuries and fatalities where it has been implemented.

As a personal injury lawyer, working in the San Francisco Bay Area, I am glad to see our federal government is taking steps to help reduce these serious injury cases. When local or state governments fail to take appropriate safety steps, their failure may create dangerous conditions. In those instances the government will be liable along with the negligent driver for the personal injuries caused in the accident. If the a city or state has created or maintained a dangerous pedestrian crosswalk, you should know your rights against the government and take appropriate steps to make a timely claim.

Resources:

SF Gate, San Francisco Streets Particularly Mean for Pedestrians, December 20, 2010