Oakland Personal Injury Lawyer Blog

When a married person is seriously injured, the non-injured spouse often pays a large toll as well. While the couple may still love each other just as much, there is no doubt that the marital relationship has been harmed. In the law, this is what as known as a loss of consortium claim. A recent California appellate court decision reaffirms this important legal right of the uninjured party to sue for loss of consortium.

In the case of Mealy v B-Mobie, Inc., the Mealys had been married for over fifty years. Mrs. Mealy was afflicted with polio in 1952 and was confined to a wheelchair after that. Nevertheless, she was able to drive a car and work outside the home. She and Mr. Mealy had five children together and she worked over thirty years as a counselor for Catholic Social Services. After she retired, she began to lose strength in her arms and her mobility worsened. In order to get in and out of bed, the Mealy's used a Guldman lift system. In 2008, while using the system, a belt broke causing Mrs. Mealy to fall to the floor and break her hip.

Following the fall, Mrs. Mealy filed a products liability lawsuit against the manufacturer of the lift for her personal injuries. Mr. Mealy joined in the suit claiming a loss of consortium. The evidence at trial showed that after the fall Mrs. Mealy required help with almost every aspect of her daily living. She was unable to groom herself as she could before her injury; she was now incontinent, and she was unable to do other household chores and participate in leisure activities that she could do before. Her husband now became her round the clock caretaker.

At trial Mr. Mealy testified that his relationship with his wife was as strong as ever. In fact he testified he loved his wife more than ever. Incredibly, the defense in this case tried to use this testimony to argue that there were no damages to Mr. Mealy and therefore no basis for a loss of consortium claim. The defendant argued that since the loss of consortium was not complete, but only partial there should be no recovery at all for Mr. Mealy's loss.

The Second District of the California Appellate court soundly rejected this argument. The court wrote that "consortium" refers to the non-economic aspects of the marriage relation, including conjugal society, comfort, affection, and companionship. It includes sexual relations, moral support and household services. The court noted that moral support is an important part of the claim. In this case, the evidence clearly showed that Mrs. Mealy suffered a serious hip fracture that completely changed her life, and thus impacted her husband as well. The fact that he still loved his wife as much as he did before the injury should not, and did not bar his claim.

As an Alameda lawyer specializing in personal injury and wrongful death claims, I see claims where spouses have suffered life changing injuries such as traumatic brain injury injuries or spinal cord injuries. In these difficult cases, the marriage is often tested. The impact on the relationship is real, and as this California case holds, it is compensable--even if the parties still love each other!!!

Resources:

Mealy v B-Mobile, California Court of Appeal, Second

In 2008, the federal government passed the Virginia Graeme Baker Pool and Spa Safety Act. The bill was named after the granddaughter of the former Secretary of State James A. Baker, III. The seven year old girl died when she was entrapped by the suction of a spa drain.

The law was made to prevent drowning deaths and serious injuries caused by swimming pool drain entrapment. It required that commercial, city, and or club pools be fitted with approved anti-entrapment safety drain covers and entrapment avoidance systems to meet national standards.

The Consumer Product Safety Commission announced yesterday the recall of over one million pool and spa safety drain covers. The commission found that labs used faulty standards to certify many of the recalled drain covers. This resulted in inaccurate flow ratings. The recall came after a CPSC investigation that involved the subpoenaing of over 17,000 pages of documents from testing laboratories.

Eight manufacturers products were listed in the recall. The manufacturers are A & A, AquaStar, Color Match, Custom Molded Products, Hayward Pool Products, Pentair Water Pool & Spa, Rising Dragon, and Waterway. For a complete description of the products you may go to the CPSC website.

The State of California also has passed laws to reduce entrapment injuries caused by faulty swimming pool drains (The Public Pool and Spa Safety Act, Assembly Bill 1020) In November, 2010 pools at Alameda High Schools were closed for failure to comply with these laws. The pools have since been repaired.

The CPSC has issued recommendations to prevent serious swimming pool injuries and accidents. Avoid using pools or spas with broken or missing drain covers. Install a safety vacuum release system which turns off the pump if a blockage occurs. In the event someone is trapped by the suction of a drain try to put a hand between the drain and the persons body to break the seal as opposed to just pulling the trapped person from the drain.

The CPSC has also launched a swimming safety program called "Simple Steps Save Lives." It recommends staying close and watching children in and around the pool. Never leave a child unattended in a pool or spa. Keep kids away from pool drains, pipes and other openings. If a child is missing, the first place you should look is the pool or spa. Proper safety equipment can also save lives. Have a proper fence or other enclosure around pools and spas; install lockable safety covers on pools and spas; install pool and gate alarms to signal when kids go near the water; and maintain safe pool drains.

The statistics about swimming injuries and deaths are shocking. 76% of reported deaths involve children under the age of 5. There are over 5,000 pool and spa submersion incidents per year. 96% of submersion victims will die with deaths usually occurring on the same day as the drowning. For those surviving the initial drowning, only 4% on average will live longer than a week. Those that do often suffer severe brain injuries requiring life long medical care.

As a swimming pool accident attorney, I see first hand the devastating effects that can be caused by unsafe pools and poor pool supervision. Product liability laws, and safety standards are there to protect all swimmers. By complying with these safety laws, and using good swimming pool safety practices, we can all do our part to help prevent these types of life threatening injuries and deaths.

Resources:

USA Today, Drain cover recall could close thousands of pools, May 27, 2011

CPSC, Eight Manufacturers Recall Pool and In-Ground Spa Drain Covers Due to Incorrect Ratings Covers Pose Possible Entrapment Hazard to Swimmers, May 26, 2011

As an Oakland personal injury lawyer, we often see clients who have been seriously injured in truck accident collisions. Two new legal cases involving truck accidents illustrate the duty of care that professional truck drivers owe to the motoring public. Both cases involve accidents where the truck drivers negligently parked their vehicles causing serious personal injuries and death.

In the case of Cabral v Ralphs Grocery Company, the California Supreme Court recently ruled that a truck driver can be held responsible for personal injuries he causes by negligently parking his truck on the side of a freeway. The case involves a motorist who was driving down Highway 10 when he lost control of his vehicle and slammed into the rear of a tractor trailer parked on the side of the roadway. The driver of the truck had stopped on the side of the highway to have his lunch. He was parked in an emergency only parking area.

The driver of the vehicle died in the collision. His family then brought the subject wrongful death case against Ralphs Grocery Company alleging that the truck driver was negligent in the manner in which he parked his truck on the side of the road. The wrongful death case went all the way to trial and the jury found that the driver was 90% at fault and the truck driver 10% at fault in causing the accident. Ralphs Grocery then appealed from the judgment against it.

Ralphs Grocery, which employed the driver, argued that it owed no duty of care to the decedent driver. Another words, Ralphs tried to argue that it could park its trucks wherever it wanted without any repercussions. The Supreme Court felt otherwise. It held that a truck driver must use reasonable care in choosing when and where to stop alongside of a freeway. In doing so, it upheld a jury verdict in favor of the family of the decedent.

In another recent truck accident case, the California Appellate Court, Fourth District, ruled that a professional truck driver can be legally responsible for personal injuries caused by the way a truck driver parks its tractor trailer, even if the truck is legally parked. In the case of Lawson v Safeway, the truck driver in question parked his tractor trailer near an intersection in a legal parking spot. The manner in which he parked the truck however interfered with the vision of drivers who were approaching the intersection. As a result, a motorist pulled up to the intersection but could not see an approaching motorcyclist because the truck obscured his view of oncoming traffic. Due to his obstructed line of site, he collided with the motorcyclist causing him severe personal injuries. In that case, the jury found that the Safeway truck driver was 35% responsible for the damages caused to the motorcyclist.

The general rule followed in these both of these truck accident cases is clear. All drivers have a legal duty to exercise reasonable care for the safety of others in the operation of their trucks. In these two cases, the juries found that the truck drivers acted unreasonably in the manner in which they parked their large vehicles. In one case, the tractor trailer was an unnecessary obstruction on the side of the highway. In the other case, the trailer was an unsafe sight obstruction along the side of the road. Where truck drivers park or operate their large tractor trailers in an unreasonably unsafe manner, the law will hold them responsible for personal injuries and wrongful deaths caused by that conduct.

Resources:

Cabral v Ralphs Grocery Company

Lawson v Safeway

This Saturday, May 14, 2011, Alameda will be hosting its first "Tour de Tracks" bike tour. The event is being hosted by the City of Alameda, the Greater Alameda Business Association (GABA) and BikeAlameda. This will be a fun event where riders will travel a course through Alameda along the old railroad stations.

The tour traces the railroad line which was first established in 1864. There are stops on Encinal and Lincoln at the following stations: High Street, Versailles, Chestnut Encinal, Morton, Bay and Grand Station. Riders can pick up raffle tickets along the way at participating GABA member businesses and win prizes including a brand new bicycle.

There will be free registration for the event at Lincoln Park starting at 9:00 a.m.. Group rides will begin at 10:00 a.m.

As an Alameda personal injury lawyer and as an avid bicycle rider myself, I've come to know a lot about bike safety and how to avoid accident resulting in serious personal injuries. Here are a few tips to keep your ride on Saturday safe.

Use proper safety equipment, including a certified helmet. Bright clothing is also useful so you are visible to drivers of cars and trucks.

Obey all traffic safety laws: Bikes are required to obey all traffic laws just like motorists. Additionally, riders are required by law to ride as far to the right of the road as safely practical except when preparing to make a left turn or overtaking other bikes or vehicles. Parked motorists who open their doors directly in front of cyclists is a common cause of bike accidents. In order to avoid getting "doored" bicyclist must ride sufficiently to the left of parked vehicles so that if a door suddenly opens, their bike will still be clear of the door. Another good tip is to look for driver's in parked cars, or brake lights. These can be signs that the motorist is about ready to pull into traffic. Always stay in the bike lane if one is provided.

As always, it good to know your legal rights and obligations if you are riding a bike or have been involved in a bicycle accident.

I will be out volunteering to help at the Bay Street Station near Pagano's on Saturday. I look forward to seeing you there and I wish you a fun and safe tour.

Resource:

The Alameda Sun, New Tour de Tracks Event Invites Cyclists to Visit Alameda History, May 11, 2011

Here's a safety recommendation for you to keep your car running safely. Every year the National Highway Transportation Safety Administration recalls cars for a variety of reasons. Frequently, the consumer has no way of knowing whether their car has been recalled or not. Now NHTSA has a on-line system which you can enroll in so you can be instantly notified if your vehicle is subject to a voluntary or compulsory recall.

It's simple. You just go to the NHTSA website. Then you specify the year, make and mode of your call and give them your e-mail address. You will then receive notifications of any government recalls of your vehicle electronically.

The NHTSA website also provides other valuable information. You can file a complaint about a vehicle. You can research other consumer safety complaints about any make or model or safety recalls which have occurred. You can also obtain information about any defect investigations which are ongoing.

NHTSA also maintains a Five-Star Safety rating system for any vehicle. This includes NHTSA's evaluation of the crash resistance of the front driver's side, front passenger's side, side driver's side, and side passenger's side, along with a rollover assessment.

As a personal injury lawyer in Alameda, a large part of my legal practice concerns automobile accidents. Therefore, vehicle safety is of the utmost importance to me. Often safety defects in vehicles can be a significant contributing cause to serious personal injury accidents. For example, in recent years, there has been a substantial amount of product liability litigation involving rollovers, especially with sport utility vehicles.

The California product liability laws hold automobile manufacturers strictly liable for manufacturing and design defects which are present in the cars and trucks that they sell. They are also responsible for any known danger inherent in their vehicles which they have failed to warn the consumer about. When a person is injured as a result of a defectively designed car or truck, that person is entitled to recover legal damages for the injuries caused by the manufacturer's conduct.

NHTSA's recall system has been instrumental in helping to identify defective automobiles and to get these cars fixed or off the roads. By use of the recall system, and enforcement of the California product liability laws, we can reduce the number of personal injuries caused by defective cars and trucks. Therefore, I would strongly recommend that you check out NHTSA's website for information about the vehicles you drive or own.

A five year old Fremont girl was recently attacked by a German Shepherd causing her serious personal injuries. She was with her parents visiting friends when the dog, without provocation, bit the girl on her ear, severing the tip of it. She was taken immediately to the hospital. Reportedly, the dog had a prior history of other aggressive behavior and biting incidents. Local authorities euthanized the animal.

The law regarding incidents such as this is clear. Civilly, the owner of a dog is strictly liable for personal injuries caused by his animal. California Civil Code section 3342 states that the owner of a dog is liable to anyone who is bitten by their dog in a public place or lawfully in a private place, regardless of whether the dog had previously bitten anyone else. In other words, California places the responsibility for personal injuries caused by dog bites squarely on the dog owner. The owner is responsible for all damages caused, regardless of whether the owner was negligent in owning, training or otherwise watching over the animal.

In addition to the owner of the dog, others may also be legally liable for dog bite attacks. For example, a landlord may be liable if one of his tenants' dogs bites someone under certain circumstances. If the dog had dangerous propensities, or had previous aggressive behaviors, and the landlord either knew or should have known of the dog's history and failed to take reasonable precautions to protect the public against the dog, the landlord can also be held responsible for the personal injuries caused by the dog.

Dog bite attacks are generally covered by the owners' homeowner's insurance or renter's liability insurance. The insurance carrier is responsible for all medical expenses, costs of plastic surgery, scar revisions, and other reasonable and appropriate medical treatment. Additionally, the insurance carrier would be required to reimburse for any lost wages caused by the attack, and for general damages for pain and suffering. The pain and suffering component of the claim is often the largest component of the settlement, as there is often permanent physical scarring and emotional trauma as well.

Dog bite attacks where there is scarring should not be settled for at least one year following the injury. The reason for that is that it generally takes one year for the scar to completely heal. At this point, a well qualified plastic surgeon can evaluate what type surgery, if any, would best ameliorate the scar. A report can also be obtained at this point fully documenting the need for any and all future treatments and the costs thereof.

As a Fremont personal injury lawyer who has represented numerous dog bite victims over the years I know how traumatizing these attacks can be. I also know the importance of getting top notch medical care and retaining the best plastic surgeons to properly evaluate these injuries. If you have been bitten by a dog, you should know your legal rights and be treated by a plastic surgeon who is attentive to the needs of dog bite victims in order to be fairly compensated for your personal injuries.

Resource:

Oakland Tribune, Dog bites, injures 5-year-old Fremont girl, April 28, 2011