Oakland Personal Injury Lawyer Blog

A motorcyclist was driving his bike in a protest ride against New York helmet law, when you guessed it, he had a serious accident. As part of the protest, he was not wearing his helmet. He died when he flipped over his handlebars and landed on his head on the roadway. Investigating police officers said the motorcyclist hit his breaks, lost control of his bike, fishtailed, and then the flew over the handlebars. He was taken immediately to the hospital where he was pronounced dead.

California has strict laws regarding the use of helmets designed to reduce personal injuries while operating a motorcycle. California Vehicle Code section 27803 provides:  "(a) A driver and any passenger shall wear a safety helmet meeting requirements established pursuant to Section 27802 when riding on a motorcycle, motor-driven cycle, or motorized bicycle.
(b) It is unlawful to operate a motorcycle, motor-driven cycle, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).
(c) It is unlawful to ride as a passenger on a motorcycle, motor-driven cycles, or motorized bicycle if the driver or any passenger is not wearing a safety helmet as required by subdivision (a).
(d) This section applies to persons who are riding on motorcycles, motor-driven cycles, or motorized bicycles operated on the highways.
(e) For the purposes of this section, "wear a safety helmet" or "wearing a safety helmet" means having a safety helmet meeting the requirements of Section 27802 on the person's head that is fastened with the helmet straps and that is of a size that fits the wearing person's head securely without excessive lateral or vertical movement.
This section does not apply to a person operating, or riding as a passenger in, a fully enclosed three-wheeled motor vehicle that is not less than seven feet in length and not less than four feet in width, and has an unladen weight of 900 pounds or more, if the vehicle meets or exceeds all of the requirements of this code, the Federal Motor Vehicle Safety Standards, and the rules and regulations adopted by the United States Department of Transportation and the National Highway Traffic Safety Administration."

In 1993, the constitutionality of this law was challenged by motorcycle enthusiasts in the case of Buhl v Hannigan. The challengers claimed that the law was vague, was not related to a legitimate state concern, that it violated their right to freedom of expression and right of privacy. All of these arguments were shot down by the court, which explained that the legislature has a right to pass law which are in the interest of the public safety.

In 2009, there were 4,462 motorcyclists killed in accidents. Another 90,000 were seriously injured during this same time period. NHTSA estimates that helmets saved the lives of 1829 motorcyclists and estimated that if all cyclists used helmets and additional 823 more lives could have been saved. NHTSA states that helmets are 37 per cent effective in preventing deaths due to head injuries, and 67 per cent effective in preventing traumatic brain injuries.

As an Alameda motorcycle injury lawyer, I have represented numerous motorcycle accident victims. The use of a helmet almost always mitigates the potential for serious head injuries. Therefore, I strongly support helmet laws in California and in all jurisdictions.

Resources:

NY Motorcyclist dies on ride protesting helmet law, Associated Press, July 3, 2011

National Conference of State Legislatures, June 2011

When summertime comes, we tend to go to amusement parks. Whether it's the Santa Cruz Boardwalk, Raging Waters in San Jose, Six Flags in Vallejo, or Disneyland, going to amusement parks and water slide parks during the summertime is about as American as apple pie. A recent California Appellate case elaborates upon your legal rights if you have suffered a personal injury at an amusement park.

The case is Nalwa v Cedar Fair LP. The facts involve a woman who was riding on a bumper car at California's Great America Amusement Park in Santa Clara, California. The woman, who was a physician, was riding the bumper car along with her children who were in other cars. During the course of the ride, her car was struck head on by another bumper car and during the collision she broke her wrist.

The evidence in the case showed that the defendant owned and operated four other amusement parks throughout the country. At the other parks, the defendant configured the traffic so that all the cars traveled in one direction to help prevent head on collisions. There was evidence that the defendant knew that the one directional travel helped to reduce injuries. However, at the Santa Clara park, unidirectional travel was not employed. Instead, employees of the park were told to warn riders after a head on collision to stop that activity.

The injured doctor brought suit for personal injuries against the owners of Great America claiming that the defendant was a "common carrier" and that it was negligent in the operation of its bumper car operation. The defendant filed a summary judgment motion to have the case dismissed on the grounds that by getting on the ride the doctor "assumed the risk" of getting injured by getting on the ride. Although the trial court agreed with the defendant's position, the California Court of Appeals reversed the decision of the trial court and held that the amusement park owner owed the injured doctor a duty of care to operate its rides in a reasonably safe and prudent manner.

In upholding the doctor's right to sue the amusement park for the personal injuries she sustained, the court rejected the idea that by merely getting on a ride she assumed all risk of injury. It cogently observed that people do not go to amusement parks expecting to be injured. Common sense tells us that breaking a bone is not a natural or expected consequence of getting on a ride. The court stated, "The very reason we go on amusement park rides is because we seek the illusion of danger while being assured of a ride's actual safety. The rider expects to be surprised and perhaps even frightened, but not hurt."

Amusement park ride injuries are not uncommon. Although data is limited, because reporting of injuries at parks is often not required by law, the Consumer Product Safety Commission noted that in 1996, there were over 8,000 amusement park injuries nationwide.

As an Alameda personal injury lawyer, I have handled many personal injury cases against amusement parks over the years. Because the rides often involve high speeds, the injuries can often times be severe. Many times the amusement park owners will argue, as was done here, that the patron who paid money to enter their facility, assumed any risk of injury that they suffered on the ride. As the court rightly concluded here, that is nonsense. People go to these parks assuming the rides are safe for use. They don't go expecting an injury. Alternatively, the parks will also have riders sign waivers or releases of responsibility to try insulating themselves from liability if their customers are injured. Frequently, however, these types of waivers are held invalid as being against public policy.

Resources:

California Research Bureau, Safety and Oversight of Amusement Rides in California, August 1997

Summertime means vacations and outdoor fun. Over the years all terrain vehicles (ATV's) have steadily increased in popularity as recreational vehicles. Unfortunately, most consumers are unaware of the hidden dangers of these vehicles and the number of deaths and serious personal injuries associated with their use.

The Consumer Product Safety Commission reports that over the 2010 Memorial Day weekend alone, there were a reported 28 deaths related to ATV use. That's an average of 7 deaths per day over that one holiday weekend. Between 2004 and 2006, deaths of children under the age of 16 increased more than 65%.

In California the number of reported deaths is staggering. Between 1982 and 2009, there were 560 fatalities associated with ATV's. 101 of the deaths between 1982 and 2006 were children under the age of 16.

California has passed various ATV laws to help reduce the number of injuries and deaths associated with these recreational vehicles. Operators are required to wear helmets on public lands at all times. All operators under the age of 18 must possess a safety certificate or be with an adult with a safety certificate if operating on public lands. Passengers may not be carried while on public lands, except one passenger may be carried if the particular ATV is designed to carry a passenger. The ATV may not be used on highways, except to cross highways. Click here to obtain more information about ATV training.

Obeying the safety laws however, does not prevent serious ATV injuries and accidents. There has been many wrongful death and personal injury lawsuits alleging that the design of particular ATV's are contributing factors to these accidents. These product liability claims often look at whether the center of gravity of these vehicles is too high causing them to be unnecessarily top heavy. The Yamaha Rhino 450 and 650 have been widely criticized. Critics claim that the vehicles were involved in numerous slow speed rollovers on flat terrain. Safety experts say the high center of gravity and narrow tires for these vehicles make them especially prone to rollover accidents.

Yamaha issued a safety recall of these vehicles in 2007. Owners of 2004 through 2007 models can have their vehicles modified. The safety modifications are free of charge.

Because ATV's, unlike cars, do not have doors or rollover protection, occupants can becoming easily trapped if the ATV turns over. This can result in crush injuries resulting in amputation of the limb. Other injuries often associated with ATV accidents involved permanent brain trauma, and spinal cord injuries resulting in paralysis.

As an Alameda personal injury lawyer, I know that litigation in this area is challenging. In order to be successful in these type cases, you need an experienced products liability lawyer to review the case. Due to the complex nature of these case, they can be extremely expensive to litigate. The products liability lawyer must be familiar with and have access to the types of experts needed to prove not only the design defect, but the causation issues in the case, i.e. how did the design defect contribute to cause the accident in questions. Typically, experts used in these cases include biomechanical engineers, mechanical and design engineers, accident reconstructionists, handling and safety stability professionals.

As with any personal injury case, acting promptly after an injury occurs is extremely important. It is vitally important that the scene of the accident be investigated and photographed. The ATV in question should immediately be stored for preservation of evidence and inspection by experts. Interviews of potential witnesses should be done immediately before witness's memories fade.

Resources:

CPSC, CPSC Warns Memorial Day Weekend Among the Deadliest Holidays for ATV Riders, May 27, 2011