Oakland Personal Injury Lawyer Blog

It was recently announced that AC Transit has agreed to pay a woman $10.5 million in settlement of a personal injury claim arising out of a bus accident. Such eye popping numbers often raise eyebrows and questions about our legal system. In my experience as an Oakland personal injury lawyer, I have found that when large numbers like this are paid out, there are usually very serious and permanent injuries involved. This case was no exception.

In 2008, 23 year old Abby Nicols was crossing the street in a crosswalk, with the green light facing her. An AC transit bus driver took a right turn from an adjacent street and struck her in the crosswalk. Abby was trapped under the bus for fifteen minutes before she could be extracted by emergency personnel. She suffered a crushed hip, and multiple fractures of her pelvis and femur. She suffered permanent nerve damage. This twenty three year old woman will require lifetime medical care for these injuries, including future surgeries. In short, her life will never be the same. In addition to compensation for these tremendous physical injuries, she was awarded compensation for all of her past and future medical bills, and her past and future loss of earnings and earning capacity.

You can see that although 10.5 million dollars is a lot of money, it is not an unreasonable amount considering the life altering effect these injuries had on the young woman. Indeed, there is no question in my mind, that she would rather have not been hit than receive the large personal injury settlement for this bus accident.

Bus companies are often public entities and usually are not easy to deal with. As an Oakland bus accident lawyer, I have had to represent many clients against AC Transit and other transit lines, such as the San Francisco Muni. One thing clients do not realize is that since these bus lines are public entities, special procedures must be taken.

Normally, in a personal injury claim, an injured person has two years from the date of the injury to file a lawsuit. However, when a person is making a claim against a public entity, such as AC Transit, you must file a government claim within six months of the date of the injury. If a claim is not filed within six months, the person will lose their right to sue (subject to some very limited exceptions).

The government claim must describe who was injured, how the injury occurred, the factual and legal basis for the claim, the types of damages sought, and the identity of responsible parties. If a claim is not properly filled out, a party will lose the right to purse that particular theory of recovery. Therefore, it is important to have well qualified legal counsel prepare the claim to assure that all possible theories of recovery are alleged in the claim.

Usually, these government claims are rejected by the public entity responsible for the injury. After the rejection of the claim, the injured person has six months from the date of the rejection of the claim to file a lawsuit. If the lawsuit is not filed within this time frame, the lawsuit will be thrown out of court.
As you can see, government claims procedures are quite complicated. If you are injured in a bus accident, or any type of accident where a public entity is responsible, you should consult with a lawyer well trained in government claims to make sure your rights are protected. For more information, see "Six Things You Should Know if You Want to Sue the Government in California."

Resources:

AC Transit agrees to $10.5 M settlement in crash, San Jose Mercury News, September 13, 2011

Last month forty people died in a high speed rail crash in China. The collision occurred outside Wenzhou, when two high-speed trains collided. The accident has raised questions about the safety of the Chinese high speed rail system which is now the largest high speed system in the world, just four years after the system opened. Shortly after the train wreck, legal authorities in China ordered attorneys not to accept personal injury or wrongful death cases. Lawyers were also required to report immediately to the government the names of injured passengers or families of the deceased who come in for legal assistance.

The collision itself was a national tragedy. Given the approach of the Chinese government to insulate lawyers from the investigatory process, we may never know what were the true causes of this tragedy and how it could have been prevented. This is in stark contrast to how personal injury claims are handled in the United States and other western countries with progressive legal systems designed to protect the rights of personal injury victims.

A recent car crash in the news may help illustrate the point. On July 31, 2011, a woman was killed on Highway 580, on the Altamont Pass near Livermore when her car went off the road falling down an embankment over 200 feet. The collision caused her car to overturn several times and ultimately explode into flames. The cause of the accident is still under investigation by the police.

In this instance, the traffic investigation may reveal an unsafe road condition. The roadway may be lacking appropriate guard rails, have other improper grading, or there may be other roadway design factors which may have contributed to causing this crash. If that is the situation, a government claim may be filed against the State of California alleging a dangerous condition of public property. Once the claim is filed, extensive discovery can be conducted to help determine the cause of the accident, and whether the State of California maintained an unsafe condition on the highway.

As an Alameda personal injury lawyer, I was recently involved in the representation of a family which had a serious accident on the Altamont Pass. Their car also went off the road and down an embankment causing several family members serious injuries. During the course of the lawsuit, documents were obtained which showed that the CHP was concerned about vehicles leaving the roadway in the area of the accident and requested CalTrans to place guardrail in the area. Depositions of investigating police officers and tow truck drivers who worked in the area testified that they had witnessed in excess of fifty accidents in the area. This type of information became available only because we have a legal system in California which is designed to let injured parties perform extensive investigative discovery in conjunction with a personal injury lawsuit.

It seems that this type of open investigative process, designed to get to the truth, and protect the rights of personal injury victims, is something which is not embraced by the Chinese government. Unfortunately, there are many well heeled factions who would like to limit the rights of injured parties in the United States as well. Insurance companies, the Chamber of Commerce, and other corporate interests espouse something they euphemistically call "Tort Reform." These so called reforms are really programs designed to limit people's right to full discovery, to full compensatory damages, and to even limit the types of suits that can be filed. So the next time you hear someone talk about "tort reform", you might ask yourself whether you would prefer your legal system to be more like the Chinese system or one that fully protects the rights of the individual.

Resources:

China lawyers 'told not to take rail crash cases', AFP, July 30, 2011

Woman killed in fiery crash on Altamont Pass, Contra Costa Times, July 31, 2011

On September 19, 2007, Monica Orduno was a pedestrian near the intersection of West MacArthur and Martin Luther King Blvd. in Oakland. A car which was making a left turn collided with another vehicle. That car spun out of control and pinned Ms. Orduno against a concrete planter box.

A government claim for personal injuries was filed against the City of Oakland claiming that the intersection was dangerous because it lacked a left turn lane. Ms. Orduono was a working, single mother, who lost her leg in the accident. She had incurred over $750,000.00 in medical bills and expects to incur $2.5 million in future medical expenses.

Not a lot of information is reported about how the lack of the turn lane contributed to the occurrence of the accident. However, it is often the case that there are more factors involved in a car accident than just the motorists involved. Often times, the design of a roadway or intersection, poor lighting, poor signage, inadequate or faded striping, or other features of the roadway can contribute to the causation of a serious personal injury car accident. Therefore, whenever there is an auto accident with catastrophic or permanent injuries, there should be an immediate inspection of the accident scene.

A government is liable for a dangerous condition of the roadway if the following factors are present: First, there must be a dangerous condition of public property, which is defined as a condition that creates a substantial risk of injury to the public, when the property is used in a reasonably foreseeable manner. Second the dangerous condition created a foreseeable risk of the type of accident which occurred. Third, the public entity which owned or controlled the land either created the dangerous condition or had ample notice of the problem long enough before the accident to have had time to fix the problem. And finally, it must be shown that the dangerous condition was a substantial factor in contributing to the accident in question.

The government has numerous defenses and immunities which apply to these types of cases. One of the most common defenses is called a design immunity which protects the government if the design of the particular roadway was made pursuant to a duly approved design. However, even that immunity can be overcome if physical conditions had changed since the original approval of the design.

Due to the complexity of these type auto cases, an immediate investigation must be done before the physical conditions of the accident site change. This involves the hiring of expert witnesses familiar with highway design cases. In a typical highway design case, our office would immediately hire an accident reconstruction expert to examine the scene of the accident, the vehicles involved, and review all pertinent police investigations which were conducted. Additionally, a traffic engineer is retained to analyze the accident scene to see if it comports with traffic safety design standards, and whether it meets standards as set forth in the California Traffic Design manual. Finally, a human factors engineer is hired. This type of expert is a multi-disciplinary expert who has expertise in psychology, engineering, and design who analyzes the design features of the accident scene in light of human beings usual physical and psychological capabilities. Such experts are necessary to prove that a dangerous condition existed and to show how the condition contributed to the actual causation of the accident.

Since these types of cases are generally filed against public entities, such as cities, counties, or the State of California, it is imperative that a government claim be filed within six months of the date of the accident. If a claim is not filed within that time frame, the claim will be barred by law subject to a few, very limited exceptions.

As a car accident lawyer in the Oakland, Alameda area, I have seen over the years how poor roadway design can cause dangerous highway conditions which can contribute to serious auto accidents. Whenever serious accidents occur, it is alway prudent to look at all surrounding circumstances to see if roadway conditions played a part in the crash.

Resources:

Oakland Tribune, Oakland pays $750,000 to woman hit by car on Martin Luther King Jr. Way, June 21, 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

A forty-nine year old man, driving home from work, died when his car crashed in Orinda. The automobile accident occurred on Fish Ranch Road near the Caldecott Tunnel. Although the accident is still under investigation by the police, family members believe that rain and windy conditions contributed to the accident.

As an Oakland personal injury lawyer, I know there are many ways for cities and the State of California to help prevent auto accidents caused by dangerous wet roads.

Hydroplaning occurs when water penetrates between the roadway and the tire. But technology exists to reduce car hydroplaning due to water puddling on the roadway. Public roads can and should be designed with a crown to drain water away properly. However, even properly crowned roads can become dangerous if the rains are heavy. Longstanding research by NASA has also shown how proper grooving of the pavement can channels off water even in heavy rain conditions.

Drivers have the legal right to drive on a safe roadway. The State of California and our Cities have the duty to safely design and maintain our public roads. When dangerous conditions of public property such as bad design or lack of grooving, cause auto accidents, the public entities should be held accountable.

Resources:

Contra Costa Times, Lawrence Berkeley lab worker killed in crash remembered fondly by family, November 20, 2010

NASA, NASA Saves Lives with "Groovy" Spinoff, 1993

The West Contra Costa Unified School District has entered into a confidential settlement of a claim filed by a young girl who was raped on the Richmond High School campus in 2009. The girl had been attending a school dance and was gang raped in a dark courtyard while numerous students and others were aware of the ongoing attack.

Under California law, a special relationship exists between a school and its students. The schools are under a legal obligation to use appropriate care and prudence to assure that our students are kept safe. School districts which do not provide adequate security and supervision of school events are liable for personal injuries caused to students as a result of this neglect. This is true even if the injury is caused by the criminal conduct of others if such conduct is reasonably foreseeable.

Claims against school districts are covered by special sections of the California Government Code. When suing a school district or any public entity, you must file a government claim within six months of the date of the injury or the claim will be barred by law. There are many other special requirements when suing a school district. As a Richmond personal injury lawyer, I see many mistakes that people make when suing school districts because the rules are not followed. You should be aware of your legal rights and obligations, if you are considering a claim against a school district or other public agency.

Resources:

Oakland Tribune, School District Approves Settlement for Richmond High Rape Victim, November 18, 2010

New York Dailey News, Police Detectives Shocked at Remorseless Suspects in Gang Rape of San Francisco-area girl, 15, October 28, 2009

On October 5, 2010, the Alameda police were involved in a serious injury accident. A police officer chased a suspected drunk driver into the Webster Tube. The drunk driver had been pulled over by the police and then abruptly took off entering the tunnel against traffic. The drunk driver then crashed his car into an oncoming vehicle causing serious injuries to that driver. The injured driver was transported by ambulance in critical condition to Oakland's Highland Hospital. In August, Oakland police injured innocent bystanders when they engaged in a high speed chase on the streets of Oakland.

Police chases such as these seem to becoming more frequent. Predictably, police chases often result in serious injury accidents. According to a study by the California Highway Patrol, 29% of police chases ended in accidents during the time studied.

What is the legal responsibility of a city for injuries caused in a high speed police chase? Under California law, a city is responsible for any injury caused by the negligent driving of its employees (Vehicle code section 17001). Officers must comply with the traffic laws unless they are using their red lights and siren. However, a city is immune from liability for automobile accidents caused in high speed chases if it adopts a written policy pursuant to Vehicle Code section 17004.7. The policy must cover such items as when and under what circumstances a chase should be initiated and terminated.

As an Oakland personal injury lawyer, I question the usefulness of most high speed police chases. Often we see that police are causing serious injuries to the innocent driving public, in pursuit of criminals suspected of relatively minor offenses. Are the risks to the public really worth the benefit of catching a petty criminal?

Resources:

Oakland Tribune, Alameda: Police arrest two afte collision in Webster Tube, October 5, 2010

KTVU.com, Oakland Police Pursuit Ends In Injury Crash, August 20, 2010