Oakland Personal Injury Lawyer Blog

The constitution says we are entitled to a jury of our peers. In the case of Elisa Miramontes vs James Ford Inc. one of her peers apparently is the fifth wealthiest man in the world, Larry Ellison. His wealth has been estimated at 39 billion dollars. As an Alameda personal injury lawyer, who has represented many accident victims in court, I wonder whether I would want Mr. Ellison sitting on one of my client's juries. What do you think? Would you want Mr. Ellison on your jury if you were in Ms. Miramontes' position?

Here's the facts. Ms. Miramontes slipped and fell at a Ford dealership in Half Moon Bay. She alleges that she fell when she slipped on diesel fuel which leaked out from the service center at the dealership. As a result of her fall, she suffered injuries and unspecific damages.

In a slip and fall case, the person suing, known as the plaintiff, must prove the following: the plaintiff must show that the fuel was on the ground, that the dealership was negligent in allowing the fuel to be on the ground and that the dealership had notice of the dangerous condition. Notice can be either constructive or actual. Notice is actual if one of the employees knew of the fuel on the ground but did not clean the area. Notice is constructive if the fuel was on the ground for a long enough time period that the dealership should have known of its existence if it did reasonable inspections of the premises. If she can establish all of the above, she must then prove by medical testimony that the fall was the legal cause of her injuries and other damages.

In California, Code of Civil Procedure section 222.5 guarantees the right of each side to ask prospective jurors questions for the purpose of determining potential bias. The process is known as voir dire. In a civil case, each side can exercise six peremptory challenges and an unlimited number of challenges for cause. A challenge for cause is exercised when it is demonstrated that the potential juror is biased in the case and could not be a fair juror. A peremptory challenge is a challenge for any reason whatsoever, except for race, gender or creed. Each side is entitled to six peremptory challenges in a civil case.

So I don't know anything about Mr. Ellison or the particular facts of this case other than what is stated above. But do you think Mr. Ellison drives his Ford to the dealership and gets his own car serviced? Do you think Mr. Ellison who owns a billion dollar company relates more to the Ford Dealership or to Ms. Miramontes? Do you think Mr. Ellison believes in the right of injured persons to sue large corporations or do you think he believes such rights should be limited? Do you think Mr. Ellison who spent over a 100 million dollars to bring the America's Cup to San Francisco has any clue what it is like to live in the ordinary circumstances of everyday life in Half Moon Bay?

What's your opinion? Do you exercise the peremptory challenge or not? Ms. Miramontes did not, so Mr. Ellison sits on her jury. She'll find out in the next few days the propriety of that decision.

Resource:

The Oakland Tribune, Oracle CEO Larry Ellison serving on Redwood City jury in personal injury case, March 28, 2011

Pogo Sticks manufactured by a Chinese company and distributed in the United States by Bravo Sports of Santa Fe Springs, California have been recalled. The hazard identified by the Consumer Product Safety Commission involves a defect in the frame of the stick. The bottom of the pogo Stick's frame tube may break and a pin holding the spring in place can also break. The manufacturer has received numerous reports of the pogo sticks breaking and causing personal injuries.

The products being recalled include the Rocket Stick Pogo, Pop Stick Pogo, Monster Stick Pogo and Twin Stick Pogo. Only sticks with manufacturing dates between April 1, 2010 and October 31, 2010 are involved in the recall. The manufacturing date code can be found on a white label underneath the foot pedal or on the stem of the pogo by the foot pedals. Retailers and on-line web sites sold the pogo sticks nationwide.

Anyone owning one of these pogo sticks should stop using it immediately. Consumers may contact Bravo at (877) 992-9905 for a full refund.

If you know of anyone injured as a result of the frame breaking they should report the injury to the CPSC at 800-638-2772. Injured parties may also have a claim for personal injuries under California's product liability laws. A manufacturer, wholesaler or retailer of a defective product is strictly liable for damages caused by the defects in its products. This is true whether the product was defectively designed or defectively manufactured. A product may be deemed defectively designed if it fails to meet ordinary consumers' expectations as to safety or if the risk of harm inherent in the design outweighs the potential benefits of the design.

Sellers of defective products are responsible for personal injuries caused by defects in their products even if they were not negligent in the manufacture or design of the product. This reasoning behind this was first expressed by our Supreme Court in the case of Escola v Coca Cola Bottling Co over fifty years ago. Justice Traynor at that time stated that public policy demands that sellers of products be responsible for the quality of their products regardless of whether negligence is involved.

As a California product liability lawyer, I have seen the curative affect that product liability claims have on industry. For example, product liability lawyers led the way in the early 70's against manufacturers of asbestos products. Now the dangers of these products are well known and have been removed from the marketplace. Similarly, we have taken on the drug industry where it knowingly sold medications to consumers that it knew were unsafe. Product liability laws not only compensate those who have been injured by dangerous products but protect the public against the dangers of unsafe products being placed on the market.

Resource:

News from CPSC, Pogo Sticks Recalled by Bravo Sports Due to Risk of Serious Injury, March 16, 2011

A recent San Jose auto accident points out the importance of kids using proper car seats. On March 16, three people were ejected from a SUV when the vehicle had a flat tire and rolled over on Highway 101 near Blossom Hill Road. One of those ejected was a one year old boy who was in a car seat which had been catapulted to the side of the road. Fortunately, the boy received only minor injuries. However, the accident points out the necessity of not only using car seats, but having them properly installed.

Car accidents are the leading cause of death and personal injury for children under the age of 14. In 2009, the State of California issued over 16,000 tickets to parents, and others who failed to properly secure children inside their vehicles.

California law requires that children under the age of six or weighs less than sixty pounds must ride in a federally approved child car seat. A child may not ride in the front seat if he is under the age of one, weighs less than 20 pounds or is riding in a rear facing child passenger restraint system.

In April 2011, the American Academy of Pediatrics promulgated new guidelines for the use of car seats. They advocate that parents keep their children in rear-facing car seats until age two or until they exceed the weight or age limit for the particular type car seat which is being used. A 2007 study showed that children under the age of 2 were 75% less likely to die or be severely injured in a car crash if they were in a rear-facing car seat.

The rear-facing car seats are more effective in preventing personal injuries to children in car accidents because of the way the forces on the body are distributed. This type of seat supports the head, neck, and spine of the children. Therefore, in a car crash the forces tend to be evenly distributed throughout the body, reducing the likelihood of injury.

In order to be effective in preventing personal injuries, the car seats must be properly installed. This will prevent the seat from malfunctioning as in this San Jose auto accident. According to Dr. Alisa Baer, 95% of car seats are being misused. Common mistakes include routing the seatbelts incorrectly; not putting the seatbelts in lock mode, using both the lower anchors of the LATCH system and the seatbelt, forgetting to use the tether, not putting enough weight on the seat as it is being installed. Parenting.com lists 11 other common safety seat mistakes.

In addition to being properly installed, the seats should be routinely inspected for defects. There are numerous child safety seat inspection stations. The National Highway Traffic Safety Administration has a listing of locations of inspection stations. Parent may also call any CHP office to set up a free appointment with a car seat technician to make sure the seats are properly installed and inspected.

As a San Jose personal injury lawyer, I have personally seen how the proper use of car seats has reduced the severity of injury to young children. Conversely, I have seen how young children have been seriously injured when the car seats and booster seats for children are not used or are used improperly. In order to keep our children safe, it is imperative that we are aware of the risks of serious injury to our kids if they are not placed in properly installed car safety seats.

Resources:

San Jose Mercury News, Injury to toddler in San Jose prompts CHP reminder about car seat safety, March 22, 2011

Recent actions by former Alameda city employees point out the necessity of filing a proper government claim before filing a lawsuit. The former city manager, Ann Marie Gallant, and former city attorney for the city of Alameda filed claims against the city on March 10, 2011. The claims arise out of both of them being put on administrative leave in December of 2010. They claim that the action was taken as an illegal retaliation for their roles last year in investigating the conduct of Council woman Lena Tam, who allegedly leaked confidential information to a developer. Neither has filed a lawsuit yet.

Many members of the public are unaware that before suing the government in California, one must file a proper government claim. Government Code section 905 requires that before suing a public entity for any money damages, subject to enumerated exceptions, a government claim must be filed within six months of the alleged wrongdoing. This section applies to any type of personal injury claim as well as other types of claims for money damages.

Whenever a person is suing a public entity, a claim in proper form must be filed. What is a public entity may not always be obvious. We all know that a city or State is a public entity. But you may not know that your local hospital is within a hospital district and is therefore considered a public entity. Locally, our Alameda Hospital is within a public hospital district and would be considered a public entity for the purposes of claims filing. Another not so obvious example would be a school district. Therefore, whenever considering filing a personal injury action against a school district for a child's injuries occurring at school, one should make sure a proper claim is filed. Transit districts, such as AC Transit, or BART are also public entities against whom claims must be filed.

There are strict time limits which apply to when the claim must be filed. Any claim against a California public entity must be filed within six months of the date of the injury or loss (subject to very limited exceptions). This rule applies to minors as well. They cannot wait until their eighteenth birthday to file the claim. If the claim is not filed within the six months, all rights to sue will be lost (again subject to very limited exceptions).

The claims process can be complex. The initial step starts with filing the claim itself. The city of Alameda has its own forms which can be used, but the law does not require that these forms be utilized. One can submit their own claim on their own paper. The claim must include the following: 1. The name and address of the claimant; 2. The name and address to which the claimant wants notices sent; 3. The date, place, and other circumstances of the occurrence which gives rise to the claim; 4. A general description of the indebtedss, obligation, injury or loss; 5. The identity of the public employee responsible for the injury or loss, if known; and 6. The amount claimed which may be stated in general terms whether the claim would be in the jurisdiction of the limited civil court (less than $25,000.00) or within the jurisdiction of the unlimited civil court (greater $25,000.00).

Once the claim has been filed the City has forty-five days to accept or reject the claim. If no action is taken within forty-five days, one may deem that the claim has been rejected as a matter of law and then file their lawsuit. If the claim is formally rejected by the public entity, one has only six months to file a lawsuit from the date of the rejection of the claim. If the lawsuit is not filed within the six months, the claim will be barred by law.

As a personal injury lawyer in Alameda for the past twenty-seven years, I have seen occasions where unsuspecting members of the public were unaware of these claims filing procedures. Accordingly, they came into my office after the six month statute had expired and there was nothing they could do against the public entity to recover for the personal injury damages that they suffered. If you have been injured as a result of negligence of any public entity, including the State of California, a City, a public hospital, school district, or a transit district you must be acutely aware of the government claims procedures or your may lose all of your legal rights. For more information, see "6 Things you Should Know if You Want to Sue the Government."

Resources:

Oakland Tribune, Gallant, Highsmith file claims against the city, March 17, 2011

Last night the driver of a stolen car caused a serious personal injury accident. The accident occurred at 60th and Camden Street in Oakland. The driver of a stolen Toyota slammed into the side of another vehicle driven by a mother who had her four daughters in the car. All four children were taken by ambulance to a nearby hospital. The driver of the stolen car fled the scene on foot.

Stolen cars are generally not covered by liability insurance. The reason for this is that only the named insured and persons whom the owner of the vehicle gives permission to drive the car are covered by the insurance. In this accident, since the car was stolen, the owner did not give the driver permission to use the car and therefore, there will be no insurance coverage for the negligence of this driver. However, the mother and her children will be covered for their personal injury damages under their own insurance plan if there is adequate uninsured motorist coverage on her vehicle.

Uninsured motorist protection will protect people who are hit by uninsured drivers, hit and run drivers, and stolen vehicles. As long as there is an actual contact between the uninsured vehicle and the insured vehicle the coverage will apply. In other words, it will not apply to a hit and run situation where someone is run off the road, but there is no actual contact between the fleeing driver and the insured.

The uninsured motorist will be able to recover against their own policies for all personal injury damages that they would have been able to recover against the uninsured hit and run driver, had that person had insurance. Therefore, a person who is injured in an auto accident by a hit and run driver can recover compensation for pain and suffering, for their medical bills, both past and those likely to occur in the future, and lost wages and loss of earning capacity. The claim is only limited by the amount of the uninsured motorist coverage purchased.

Uninsured motorist coverage is required by law in every policy of automobile insurance that is sold in the State of California (Insurance Code Section 11580). However, the insurance can be waived, if the insured does not want the coverage and signs a written waiver. Some people make the mistake of waiving this coverage in an effort to lower their insurance premiums. I see this frequently with minimum coverage policies and insurance companies that write insurance for high risk drivers. However, this is always the wrong decision to make.

The California Department of Motor Vehicles reports that there are over 1.3 million uninsured drivers in the state. As auto insurance becomes more expensive, the number of uninsured drivers will only increase. Therefore, I strongly recommend that you carry uninsured motorist limits in an amount as high as your own liability limits. If you are unaware of what your limits are, you can refer to the declaration page of your automobile insurance liability policy.

As an Oakland uninsured motorist lawyer, I see in my daily practice of representing personal injury victims, the importance of having adequate uninsured motorist coverage. For more information on the do's and don'ts of uninsured motorist claims, see my articles on uninsured motorist and underinsured motorist claims.

Resources:

The Oakland Tribune, Driver of stolen Toyota broadsides car carrying mother, four daughters in East Oakland, March 17, 2011

As a personal injury lawyer for the past 27 years, I have helped a lot of clients who have been injured in car accidents. Many of them have come to me after they have spoken with an insurance adjuster. In fact, many of them have come to me because of the way they have been treated by insurance adjusters. Unfortunately, often times people make serious mistakes when dealing directly with adjusters. Often these mistakes hurt their person injury case.

In order to help those injured in California auto accidents, I wrote an article entitled "8 Common Mistakes That Can Cost You Thousands Of Dollars When Dealing With Insurance Adjusters." The most common mistake is giving the adjuster a written or recorded statement which I wrote about in a previous blog. The second biggest error is signing medical authorizations.

The main problem with signing a medical authorization is the scope of the authorization. The releases frequently permit the insurer to obtain any and all records, whether the records relate to the accident or not. Thus, people are divulging their entire medical history, often times, without their knowledge. This should never be done as sometimes previous, unrelated medical treatment is used as a pretense by insurance companies to argue that those unrelated problems are the cause of the current symptoms, and not the car crash.

As a personal injury attorney in the Alameda Oakland area, part of my job when a client comes in is to obtain the relevant and appropriate medical records. Only these records are provided to the insurance company at the time of the settlement of any claim. In this way, the client's privacy is always protected, and the insurance company is still provided with all of the necessary documentation to show the nature and extent of the injuries suffered in the accident.

The next time you are out driving, see how far you can go before you have to make a left turn. Better yet, see if you can avoid left turns altogether. If you drive for UPS, that's just what you would be doing.

A few years ago, UPS initiated a system where their drivers avoid left turns. The company started using a computerized system called "package flow" which maps out the drivers' routes to avoid left hand turns whenever possible. The company found that their drivers were wasting lots of time, and therefore burning lots of fuel while waiting for traffic to clear before making left hand turns. So they decided to route around them. The company found that by reducing the number of left hand turns, they reduced their driving miles by over 28.5 million and saved roughly 3.5 million gallons of gasoline!

It is well known that one of the most common types of auto accidents is the left turn collision occurring at an intersection. It is estimated that 27% of all intersection accidents in the United States are related to left hand turn crashes. As an Oakland personal injury attorney, I would add that these left hand turn accidents also tend to cause severe injuries. This is due to the fact that the impacts are virtually head on, or in some cases to the side of the vehicle where there is far less protection.

So do yourself a favor. Avoid left hand turns at intersections whenever possible. You'll be saving gas, reducing polluting emissions, and reducing your risk of personal injury accidents all at the same time. What a deal!

Resources:

New York Times, Left-Hand-Turn Elimination, December 9, 2007

United States Department of Transportation, FHWA, Permissive/Protected Left Turn Phasing

A common bike accident involves getting "doored." This happens as the bicyclist is riding down the right side of the road, and a motorist in a parked car, suddenly opens his door causing the cyclist to run into it. As an Oakland personal injury attorney, I have represented numerous clients who have had this unfortunate experience.

The injuries can be serious, even life threatening. Recently, an Oakland bicyclist was killed when a driver on McArthur Blvd. opened her door causing the cyclist to pull suddenly to the left where he was hit by an AC Transit Bus.

I am an avid cyclist myself. I recently found a website devoted to bike safety. It outlines ways to avoid this type of bike accident, as well as several other types. Regarding what it calls the "Door Prize" it recommends the following: Ride far enough to the left of the parked vehicles so that an opened door will not interfere with your line of travel. I would add to that my own personal approach. I always keep an eye open to see if there is a driver in the car as I approach from the rear. If there is, I always assume that the driver is going to suddenly open his door or pull out into traffic.

Although the law requires drivers to make sure it is safe before opening their doors, as bike riders we need to drive defensively for our own safety to avoid these type accidents. If you are injured in such a bike accident, it is important to know your legal rights before contacting an insurance company or adjuster.

Resource:

How Not To Get Hit By Cars, bicyclesafe.com

A recent poll conducted by Consumer Reports shows that 63% of drivers under the age of 30 admitted using a cell phone while driving. Perhaps even more frightening, 30% of these younger drivers admitted to texting while driving. 70% of those polled felt that it was not dangerous to drive while using a cell phone. Car crashes are the leading cause of teenage deaths.

As an Alameda father of four kids, and a personal injury lawyer who frequently sees the consequences of negligent driving, this poll scares me. We must take steps to educate our younger drivers of these dangers.

Clearly, drivers are distracted by using a cell phone or texting while driving. Studies show that texting while driving has proven to be more dangerous than driving under the influence of alcohol. The National Safety Council found that 28% of all auto accidents involved mobile phones and or texting.

What can we do to prevent serious personal injuries resulting from this dangerous habit? First, we can lead by example. The same poll showed that 41% of drivers over the age of 30 admitted using a cell phone while driving and 9% admitted to texting. So if we want our kids to drive safe, we should avoid using the cell phone while driving. Second, we can educate them about the dangers. If they don't believe us, they will believe what they see on youtube.com. Have them view this moving video about teenagers who have lost friends and caused serious injuries and deaths in auto accidents. For further information the U.S. Department of Transportation has a website on distracted driving. If all parents had this conversation with their teenagers, I know it would make the road safer for all of us.

Resource:

San Francisco Chronicle, 63 percent under 30 admit driving while on phone, March 7, 2011

A Fresno jury recently awarded 5.7 million dollars to Manuel Orenelas, a man who was seriously injured in an auto accident in 2009. The accident occurred on Highway 168 near Shaver Lake. The man had stopped to put snow chains on his vehicle. He was legally parked on the side of the road completely out of the traffic lane. A utility vehicle, driven by a Southern California Edison employee, was driving without chains and too fast for the conditions when he lost control of his vehicle and ran into the man's van.

Mr. Ornelas seriously hurt his back and pelvis in the accident. The former marathon runner now needs a cane to walk. He can't control his bowels, and cannot sit for long periods of time. He can't pick up his children, mow his lawn, or even push a grocery cart. He incurred medical bills of nearly $160,000.00. Due to his personal injuries, he can't work and he lost $1.2 million in past and future earnings.

Before the trial, Southern Edison only offered him $1.7 million, barely enough to cover his medical bills and lost wages. Then during the trial they raised their offer to $5 million, which was rejected by the injured man. The Southern Edison lawyer told the jury that with therapy Mr. Ornelas could return to work. He told the jury "it was an unfortunate accident."

What is "unfortunate" is the way that Mr. Ornelas was treated by this utility company. They made a minimal offer to settle his case considering the serious injuries to his back and pelvis, and the enormous financial losses he sustained and then forced him through a grueling jury trial. In the trial, they brought in their experts to talk about how he could return to work with proper therapy. Then, when they knew their ship was sinking, they finally offered the man 5 million dollars during the middle of the trial. Why wasn't this sum offered much earlier, long before a jury trial?

As a personal injury lawyer in Alameda for over 27 years, I have seen this pattern repeated over and over. Large companies and insurance companies drag the injured person through stressful litigation, make a low ball offer, and then when all is said and done, throw up their hands, and tell the jury, what an "unfortunate accident" it was. The jury never knows what happened behind the scenes and how the company tried to shirk its financial responsibility by making unfair, low offers, putting extreme financial pressure on the injured party to settle. I am glad to see that justice was done for Mr. Ornelas.

Resource:

Fresno Bee, Clovis couple gets $5.7m in utility-truck crash suit, March 1, 2011

New studies by the Insurance Institute for Highway Safety (IIHS) show the importance of strengthening underride guards on the rear of tractor trailers. Underride guards are the iron bars that you see coming down from the back of tractor trailers. They are the main safety measure to prevent personal injuries caused by cars sliding under the rear of tractor trailers in rear end type car accidents.

The study showed that in roughly 1,000 truck accidents studied by the Institute, 78% of the rear end crashes with trucks involved underride. When this occurs there is a heightened risk of head trauma, traumatic brain injury, or even decapitation. According to the National Highway Traffic Safety Administration (NHTSA) 423 people die annually, and 5,000 people are seriously injured when the front end of the car slides beneath a truck trailer in a rear end type accident.

Improvements in the safety of the underride guard can and should be made. One study showed that 11% of fatalities and 30% of serious personal injuries could be prevented if trucks were equipped with an energy absorbing system, instead of a rigid type system. Canada has stricter requirements than the United States with regard to the strength and energy absorption of these guards. According to the Institute's studies these stronger requirements help prevent underride and the serious injuries that result from that.

As a Alameda personal injury lawyer, I represented a woman who ran into the back of a truck in the late 80's near Castro Valley on Highway 580. As a result of her car underriding the trailer, she suffered severe permanent brain damage and has been in a skilled nursing facility with full time care since that time. I think of her every time I drive past that spot on Highway 580 where the collision occurred. Stronger standards, such as those already promulgated in Canada, are needed to help prevent injuries like those suffered by my client. I am glad to see that the IIHS is studying the issue and making appropriate recommendations to NHTSA.

Resource:

Insurance Institute for Highway Safeway, Underride guards on big rigs often fail in crashes; Institute petitions government for new standard, March 1, 2011