Oakland Personal Injury Lawyer Blog

When we rent a car, shouldn't we be entitled to assume that the car is in a safe condition? Shouldn't we be able to assume, that if the manufacturer of the car has issued a safety recall, that the rental car company will comply with that safety recall? In a classic case pitting corporate profits against public safety, Enterprise Car Rental apparent response to these questions is "No!"

Congress is considering laws right now which would address the problem of rental car companies not abiding by auto manufacturers' safety recalls. The Congress was motivated to act by a California mother who lost her two daughters in a tragic car accident when Enterprise Car rental ignored safety recalls issued by Chrysler in 2004.

In 2004, Chrysler issued a safety recall of its PT Cruisers. There was a problem with power steering fluid leaking which could cause fires. Enterprise received notice of the safety recall, but failed to have the problem fixed. It rented a PT Cruiser to two sisters, Rachel and Jacqueline Houck. The steering fluid leaked causing a fire in the vehicle which caused them to loose control of their car and strike a semi tractor-trailer. Both young women died in the accident.

Their mother Cally Houck, then brought a wrongful death lawsuit against Enterprise. In the litigation, discovery showed that Enterprise was aware of the recall yet rented the car out to several other customers before renting it to the Houcks. Nevertheless, Enterprise fought the case for five years before finally admitting fault. The case still went to the jury on damages. Ms. Houck was awarded damages for the wrongful death of her two daughters in the amount of $15,000,000.00.

To Ms. Houck's credit, she has become an advocate for greater safety in the rental car industry. She said that Enterprise rented her daughters a "ticking time bomb." She wants to prevent this from happening to others. She has lobbied with members of Consumers for Auto Reliability and Safety for laws to ground rental cars with unrepaired safety defects. Currently, there is a bill sponsored by New York Senator Charles Schumer and California Senator Barbara which would prevent rental car companies from renting recalled cars until they are repaired.

Enterprise Car Rental is the largest rental car company in the United States, behind Avis and Hertz. Enterprise is currently opposing this safety measure.

As an Alameda personal injury lawyer, I am concerned about public safety. We can act to help prevent senseless car accidents such as the one that took the lives of Raechel and Jacqueline Houck. Cally Houck has written a petition to encourage Enterprise to end its opposition to the proposed law grounding unsafe cars which have been recalled by the manufacturer. I urge you to join with her and sign her petition.

Resources:

Mother whose daughters died in fiery rental car crash is pleased Hertz agrees to rental recall oversight, Mercury News, February 21, 2012

It has been popular for politicians, especially those on the right, to advocate for the placement of caps on awards for personal injury claims, including medical malpractice actions. Most recently, Republican presidential hopeful, Rick Santorum, says that if elected, he would push to limit payments to victims of medical malpractice, which he claims unnecessarily drives up health insurance costs. What Santorum doesn't push is that fact that his wife brought her own medical malpractice case against a Virginia chiropractor in which she claimed damages of $500,000.00.

The Washington Post has reported that in 1999, Santorum's wife had severe back pain following the tragic death of their prematurely born son, who died the same day as the delivery. Ms. Santorum then sought the help of a chiropractor whom she claimed negligently treated her and caused her to sustain a herniated disc. Suit was filed and the case went all the way through a jury trial. Rick Santorum testified in the case about the pain and suffering that his wife endured as a result of the herniated disc. The jury found in favor of the Santorum's and awarded damages in the amount of $350,000.00. The judge later reduced the award to $175,000.00 claiming that the juries assessment of damages was excessive. The Santorums unsuccessfully attempted to seal the records pertaining to the lawsuit.

As an Oakland personal injury lawyer, I have to ask how Rick Santorum can campaign to limit the rights of others, when it was perfectly fine for he and his wife to use that very same system that is designed to protect those who have been injured by the negligence of doctors. Then, he apparently made efforts to make the whole lawsuit secret in order to prevent the public from knowing about the case. If he had had his way, his wife would have recovered her judgment in secret, while he continued to advocate for the limitation of rights of victims of medical negligence.

What is tragic is not so much the obvious hypocrisy here, but the real unfairness that caps on damages cause real people every day. In California, we have had limitations on damages since 1975. At that time the insurance industry claimed that the so-called medical malpractice crisis was driving insurance rates up and doctors out of the state. The insurance companies convinced the legislature to limit recoveries for general damages for pain and suffering in medical negligence cases to $250,000.00. That has been the limit in California since that time. But has it lowered the cost of insurance for doctors?

According to the Americans for Insurance Reform, in the year 2000, 25 years after the passage of the initial limitations of damages in California, rates here are only slightly less than that of the rest of the nation. Many studies conclude that the cost of liability insurance for doctors is more directly related to how insurance companies' investments are performing, rather than on the amount that is paid out in claims.

Recently, a plaintiff was awarded $6,000,000.00 in a wrongful death action against a doctor Following the 1975 law, the judge in the case reduced the general damages portion of the award to $250,000.00. The wife appealed the case, noting that inflation had eroded the value of the 1975 cap of $250,000.00 to a present value of approximately $58,000.00. Unfortunately, she lost her appeal and the $250,000.00 cap on medical negligence damages remains the law in California (See Stinnett v Tam).

The effects of these caps are pernicious. People who have been injured by the negligence of healthcare professionals often sustain life long, permanent medical problems or death. This cap then encourages the insurance carriers for the doctors to try these cases before juries, because they know that their exposure is limited. This increases the costs of prosecuting and defending these cases, and discourages many people who have been injured by medical negligence from pursuing these claims. So if people like Rick Santorum want to limit damages in personal injury cases or medical negligence cases, they should at least be straight with the public about how these caps only benefit the insurers and how they severely restrict the rights of the public. A cap that has a value of $58,000 in 1975 should be eliminated-not applauded.

Resources:

Santorum pushed to limit malpractice awards but sought larger payout for wife, Washington Post, January 27, 2012

Recently a Denver news anchor was bitten on the face by an Argentine mastiff. The dog had been saved from an icy reservoir the day before. The newsperson was interviewing two safety officers while petting the dog's head. She then made the tragic mistake of putting her face near the dog's head. The dog jumped towards her and bit her on the mouth. She was taken to the hospital where she underwent plastic surgery on her mouth. Her face required 70 stitches to repair. Apparently, she will require future surgery as well. The obvious safety point to remember here, which we often forget, is to never put your face near the head of a dog. Dogs bite about 4.5 million people each year. The most frequent victims are children, ages five to nine. Households with two or more dogs are five times more likely to be bitten than those living without dogs at home. With this in mind, I have outlined some safety tips to help prevent these kinds of injuries. The CDC has the recommended the following safety precautions:

• Before bringing a dog into your house, consult a professional as to which breed would best fit your home
• Avoid dogs with histories of aggression if you have kids
• Spend time with a dog before buying or adopting
• Spay/neuter your pet
• Don't play aggressive games with your dog, like wrestling
• Properly socialize and train your dog, teaching it submissive behaviors

For children, the CDC gives this advice:

• Do not approach an unfamiliar dog.
• Do not run from a dog or scream.
• Remain motionless when approached by an unfamiliar dog.
• If knocked over by a dog, roll into a ball and lie still.
• Do not play with a dog unless supervised by an adult.
• Avoid direct eye contact with a dog.
• Do not disturb a dog that is sleeping, eating or caring for puppies.
• Do not pet a dog without allowing it to seen and sniff you first.

California dog owners are responsible for injuries caused by their dogs, even if they have taken responsible steps to prevent the injuries from occurring. By virtue of the fact that one owns a dog, he becomes strictly liable for any injuries caused by his pet biting someone. California Civil Code section 3342 states that the owner of a dog is liable for damages suffered by anyone bitten in a public place or lawfully in a private place, including the home of the dog owner. If someone is bitten by your dog, they can file a claim for personal injuries against you. As the owner of the dog, you would be responsible for the person's medical bills, loss of earnings, and for their pain and suffering associated with the bite, and any disfigurement caused by the injury. As an Alameda dog bite attorney, I have represented numerous clients who have suffered very serious and permanent injuries caused by dog bites. By following the safety tips described above, we can all do our part to help reduce these serious and sometimes fatal injuries. Resources: Denver TV anchor bitten on face by dog has 'mouth stitched shut', Herald Sun, February15, 2012 Dog Bite Prevention, Centers for Disease Control and Prevention

There have been two recent pedestrian accidents in Alameda. In one incident, a 17-year old girl was hit at the intersection of High St. and Encinal Avenue by a hit and run driver. In the other, a man was killed on Doolittle as he was walking along the side of the road (his car had been impounded by the Alameda police because he was an unlicensed driver). A number of Alameda residents have voiced concerns about the safety of Alameda streets. These recently well publicized cases bring a couple of points to mind. Are pedestrian accidents on the rise? What can be done to help further reduce the number of pedestrian collisions? If you are injured in a pedestrian accident, how can your auto insurance help you out?

Interestingly, the number of pedestrian accidents has actually declined over the past ten years. A study by the NHTSA, National Highway Traffic Safety Association, showed a 14% decrease in the number of pedestrian fatalities nationwide since 2000. In 2009, there were 4,092 fatalities and an estimated 59,000 injuries due to pedestrian accidents. Pedestrian fatalities represented 12% of all motor vehicle related deaths. 48% of the pedestrian deaths involved alcohol use by either the pedestrian or the driver.

NHTSA recommends the following practices to reduce pedestrian injuries and deaths.

• Drivers are required to yield the right of way to pedestrians crossing streets in marked or unmarked crosswalks. This is especially true in situations where drivers are turning right onto another street into the path of pedestrians.
• When possible pedestrians should cross at designated crosswalks. Always look left and right before crossing, and if a parked car is blocking your view, stop at the edge line of the vehicles and look before coming around it and entering the street.
• Increase visibility at night by carrying a flashlight or retro-reflective clothing.
• It is much safer to walk on the sidewalk, but if you must walk on the road, walk facing traffic.

If you have been injured in a pedestrian accident, there may be responsibility on the part of the other driver, on behalf of public entities who maintain the roadway, or on behalf of your own auto insurance carrier if the accident involves a hit and run or uninsured driver.

Where an accident is caused by an insured driver, an injured person can make a personal injury claim against that person's insurance company. In that claim the person can recover for their medical bills, lost wages, future lost earnings, and for pain and suffering.

Sometimes the pedestrian accident can be caused because the particular roadway, intersection or sidewalk was either designed poorly or was not properly maintained. If a dangerous condition of public property was a cause of the injury, a claim can be filed against the responsible entity responsible for maintaining the property. A government claim must be filed within six months of the date of the injury or it will be barred by law in most instances.

Finally, if an injury is caused by a hit and run driver, or an uninsured driver, you should have recourse to your own automobile insurance policy. This is true even if the person injured is a minor in the household and is not of driving age. Every auto policy in California is required by law to include uninsured motorist coverage unless the policy holder specifically declines the coverage in writing. This coverage will provide for compensation for all medical bills, lost earnings, and pain and suffering damages up to the full amount of the amount covered.

As an Alameda personal injury lawyer, I have represented many injured pedestrians over the years. The injuries are often serious and permanent in their repercussions. By following the recommendations above, hopefully we can continue to help reduce the numbers of these types of injuries.

Resources:

Traffic Safety Facts, 2009 Data, NHTSA

Daughter Victim of Hit-and-Run; Mom Wants Answers, Alameda Patch, January 24, 2012

A Hayward carpenter died on Saturday in what most assuredly was a tragic and preventable accident. Raul Zapata, was a thirty-nine year old carpenter who was married and had three children. When he went to work on Saturday, it appears he was unaware that the City of Milpitas building department had issued a stop order declaring his work site unsafe.

Mr. Zapata was employed as a carpenter working on building a luxury home in a gated community in Milpitas. At the time of his death, he was working inside a hole on the site for a 5800 square foot home. Suddenly, tons of dirt rained over him burying him alive. His nephews who were co-workers saw their uncle buried before their very eyes.

City building inspectors stated that three days before the cave-in, they issued a stop work order because the open trench where he had been working needed to be shored up. There was no system in place to keep the trench from collapsing, especially after recent rains. According to the workers, they were not told of the order by their employer.

When someone is killed while working, the legal question arises whether someone's family has the right to pursue a wrongful death action or whether they are left only with the benefits they would receive under workers compensation laws.

Workers compensation laws provide that if someone dies during the course and scope of their employment, the employer is automatically liable for workers compensation benefits regardless of who's fault the accident is. While the law provides immediate compensation without fault, there are limitations. The family is not entitled to any monies for the loss of the worker's love, companionship, and value to the family. Usually, the benefits paid out do not fully compensate for the worker's loss of future earnings either, which can cause the family extreme financial hardship.

If however, the facts show that someone other than the employer of the worker was negligent and was a cause of the accident, then the family can bring a civil suit (in addition to receiving workers compensation benefits) against the negligent person. These are called "third party" lawsuits. If successful, the family can recover fully for all loss of future income in addition to the more serious loss to the family of the decedent's love, care, companionship, and support.

In Mr. Zapata's case, there will be an investigation into who knew about the stop order and who had the authority and responsibility to make sure the order was obeyed. If a third party, such as an owner or general contractor, was negligent, his wife and three children may well have a legitimate claim for a wrongful death lawsuit against them.

As a Hayward personal injury lawyer, I know that construction accidents can be complicated both in terms of how the accidents occur and in terms of the multiplicity of parties that may be responsible. When someone is involved in construction accident, it is therefore extremely important that the worker, or in the case of his death, his family, contact a qualified personal injury attorney to thoroughly investigate the accident and determine whether the person has any rights beyond our workers compensation laws.

Resources:

No construction to be done for months on Milpitas home where death occurred, San Jose Mercury News, February 1, 2012