Oakland Personal Injury Lawyer Blog

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 CDS 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

Last week I was in court in Oakland and observed the selection of a jury in a personal injury case, which involved an auto accident. The lawyers in the case asked the jurors their thoughts about the amount of verdicts in personal injury cases. Almost without exception, each prospective juror replied that they felt jury verdicts were excessive and often out of proportion to what they should be. Many of the jurors cited the famous McDonald's case as an example of what they meant.

As an Alameda personal injury attorney, I am often talking to juries. My experience in questioning jurors whether it's an automobile case or any other personal injury claim is similar to what I heard in that courtroom. Unfortunately, jurors ' beliefs about the size of jury verdicts does not match the reality of the awards actually rendered by juries. A recent study by the Center for Justice and Democracy entitled "White Paper: Headline Blues: Civil Justice in the Age of New Media" shows how the media influences the public's misperception about the size of jury verdicts in personal injury cases. It makes several points to show why and how this is happening.

How many times have you seen headlines such as "Woman wins 3.5 million dollars for personal injury claim." It makes it sound like she won the lottery. Often the reality in such cases is that there were very serious and permanent injuries involved, such as brain damage or paralysis, and egregious conduct by the defendant. The study showed that in 39 percent of the articles studied, there was no analysis of the defendant's misconduct, and in 14.5% of the articles there was no description of the type of injury.

Consider the following important points also brought out in this study. In analyzing numerous media articles, the average jury verdict reported was $4,600,000.00. However, according to the most recent U.S. Department of Justice numbers, the median jury verdict for a winning plaintiff in a personal injury lawsuit is just $24,000.00. In other words, the reported verdicts by the media are 192 times higher than what the typical plaintiff recovers in a personal injury lawsuit. No wonder people think that people are gaming the system and that the tort laws need to be reformed.

Sound bites, headlines, tweets, and other bite size pieces of media coverage are distorting what is actually happening in the courtroom. Not surprisingly, people who are sitting on juries in these types of case are skeptical of persons making such claims. Unfortunately for individuals who have suffered serious personal injuries, juries are prejudiced against them before they even walk into the courtroom because the prospective jurors have been saturated with misinformation about what is really happening in our jury system.

As personal injuries lawyers, we must do our part as well. When we obtain significant results for our clients, which also benefit our communities, we should strive to make sure that the cases are reported on in a dignified and accurate manner. The reporting should truly reflect the nature of the case including the seriousness of the client's injuries and the conduct of the defendant that caused such injuries. In this way, juries can come to their job with a sense of duty to the community to see that justice is done in each case instead of a sense of cynicism.

Resource:

White Paper: Headline Blues: Civil Justice in the Age of New Media, Center for Justice and Democracy, October 2011

The California Supreme Court recently dealt a big blow to California consumers and personal injury victims. This follows a trend of decisions which favor large corporations and insurance companies over the rights and needs of the individual. It seems whether its in politics or in the court, the common man and woman are not faring very well in modern times.

The case is Howell v Hamilton Meats & Provisions. It involves a personal injury claim which arose out of a collision between a truck and another driver. The truck, being driven by an employee of Hamilton Meats & Provisions made an illegal U-turn causing the traffic accident. The driver of the other car, Rebecca Howell, suffered serious neck injuries which required spinal fusion surgery.

Ms. Howell protected herself by purchasing health insurance. She incurred medical bills in the amount of $190,000.00. Her insurance company had an agreement with the hospital and other health care providers so that they only had to pay $60,000.00 to pay the bills in full.

Under California law, and the common law throughout the United States, when someone is injured as a result of the negligence of others they are entitled to recover as damages the reasonable amount of their medical bills, in addition to other damages such as pain and suffering, lost earnings, loss of earning capacity etc.

The question in this case was what is the reasonable value of the bills. Is the reasonable value the amount billed by the health care provider or is it the amount the insurance company actually paid to extinguish the bill? The California Supreme Court ruled that the injured party may only recover the amount that her insurance company paid, i.e. $60,000.00, not the amount that was billed by the hospital and doctors, $190.000.00. Thus, Ms. Howell's damages were reduced by $130,000.00.

The ruling does not reflect the economic reality of why these bills are reduced. And, therefore, the ruling does not permit the injured person to recover the full value of their medical bills. What the court addresses in its decision, but fails to fully appreciate, is that the hospitals and doctors are not reducing their bills out of the goodness of their hearts. The bills are reduced because these healthcare providers are receiving other benefits, such as increased business from the insurers, reduced costs in the form of stream lined processing of claims, and other cost saving measures. Therefore, the reasonable value of the medical bill incurred is closer to the full billed amount than the reduced amount that the insurer actually pays.

Additionally, the court fails to address the everyday reality of how trucking accident claims, such as this, are settled. Invariably, the health insurer who paid the medical bills has a lien against any third party claim, such as auto accidents, slip and falls, or any general negligence claim where someone has filed a personal injury lawsuit or claim. This means that the health insurer has a legal right to be fully reimbursed from the personal injury claim for the amount it has paid out. So in Ms. Howell's case, she will receive nothing for her medical bills--the full $60,000.00 will most likely go to her health insurer. The difference between the amount billed, and the amount received, $130,000.00 will go to the benefit of the person who made an illegal u-turn and caused her a serious disc injury resulting in spinal fusion. Where is the justice in that?

As an Alameda personal injury attorney, I have observed that for many years, starting in the 1950's through the 1970's California courts were stalwarts of protecting the rights of the injured. They were leaders in developing the law in products liability and insurance bad faith law among other areas. More recently, the California Supreme Court cases have swung in the opposite direction. More and more, the decisions favor large corporations, insurance companies and the powerful. The Howell case is just one more in a line of such cases. One can only hope the the California legislature will correct this injustice.

Resource:

CA Supreme Court tort case ruling helps insurer, San Francisco Chronicle, August 19, 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

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

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

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

Imagine traveling down Highway 880 in the evening and having a car speeding at 100 m.p.h. crash into you and then attempt to flee the scene. That's exactly what happened to a pregnant woman and her child in Oakland on April 20, 2011. Motorists reported seeing a 2005 Mercedes speeding at over 100 m.p.h. crash into the woman's car causing it to rollover. The driver of the speeding vehicle then fled the scene, but was later apprehended by the California Highway Patrol.

The odds that this hit and run driver was uninsured are high. Statistics show that there are over 1.3 million uninsured drivers in California alone. Fortunately, you can do something to protect yourself against the uninsured driver.

California law requires that insurance companies include uninsured motorist coverage with every automobile insurance policy sold in the State. The only exception is where the person buying the insurance agrees in writing not to purchase the uninsured motorist coverage.

• So how does uninsured motorist coverage work?

It applies to any accident where the at fault driver carries no liability insurance. It also applies to hit and run accidents, where the at fault driver has not been caught. What many people do not realize is that their uninsured motorist coverage will even protect them if they are in a bicycle accident or are injured as a pedestrian by an uninsured driver.

• What is covered by uninsured motorist?

An insured can recover all damages for personal injuries that he or she would have been able to recover against the at fault party up to the full amount of their coverage. This includes compensation for medical expenses, past and future, loss or earnings, past and future, loss of earning capacity, and for pain and suffering associated with one's injuries.

• How much is covered?

The insurance company is liable for all damages up to the limits of the insurance coverage. By California law, the minimum amount of coverage for uninsured motorist is $15,000.00/$30,000.00. This means that the most the insurance company would pay out on any uninsured motorist claim would be $15,000.00 to a single individual, or $30,000.00 for the entire claim if more than one person were injured in the automobile accident. $15,000.00 is a very low amount of coverage. Therefore, I would strongly encourage people to obtain uninsured motorist coverage in much larger amounts to protect themselves fully in the event that they are injured by an uninsured driver.

• Bad Faith Insurance Tactics:

Your insurance company owes you a duty of good faith and fair dealing to settle your claim promptly and fairly once liability is clear. This means that your insurance carrier has to pay you full compensation for all of your injuries and economic losses. What can happen, unfortunately, is that some companies will try and low ball their own insured with unfair offers, or delay in paying claims promptly.

As an Oakland uninsured motorist lawyer, I have represented many clients over the years who have had tremendous battles against the own insurance companies, who refused to pay what the client was legally entitled to. In a recent case involving a Tracy hit and run driver, the insurance company tried to argue that my client's car was not hit by a hit and run driver, and that the client was making a fraudulent claim. After two years of litigation, the insurance company ended up paying my client the full policy limits of $250,000.00. A second lawsuit was then brought against the insurance company for bad faith in the way it delayed and unfairly defended the claim. The insurance company then ended up paying an additional $250,000.00 to my client to settle the bad faith claim.

If you have been injured in a hit and run car accident, or by an uninsured driver, you should be fully aware of all of your rights against your own insurance company. As with any personal injury claim, you should know all of the do's and don't of dealing with insurance companies and adjusters to avoid making a critical mistake which can deflate the value of your claim.

Resource:

Oakland Tribune, Two arrested after violent I-880 hit-and-run crash near Oakland, April 20, 2011

San Francisco Giant's fan, Bryan Stow, attended opening day at Dodger Stadium on March 31 2010. As he was leaving the game, he was brutally assaulted in the parking lot. He suffered a fractured skull and serious brain injuries after he was repeatedly punched and kicked in the head by assailants who fled the scene. Witnesses reported that the assailants yelled slurs against the Giants as they pummeled the man. Following the attack, Bryan was hospitalized at the Los Angeles County-USC Medical Center where he has been in a coma since the attack.

It seems to me that sporting events are increasingly becoming the site of attacks like this. Whether it's a Dodger-Giant game in San Francisco or a Raider-49er game in Oakland, fan violence appears to be on the rise. What used to be good natured ribbing between rivals fans at sporting events, now often turns violent. The question is, what is being done to prevent attacks like that on Bryan Stow and others?

The law is clear in California. Any business owner has a legal duty to keep his or her premises safe for its patrons. This includes a duty to protect customers from criminal attacks if such attacks are reasonably foreseeable. Business owners must take actions commensurate with the known frequency of criminal activity (See Delgado v Trax Bar & Grill). If there has been a significant amount of criminal assaults and/or other criminal activity, then the business must take reasonable steps to prevent such attacks. Therefore, the Dodgers and all other sports franchises and the operators of the facilities where the games take place must take reasonable measures to identify criminal activity and reasonably respond to such activity before someone is seriously injured, like Bryan Stow. When they do not take reasonable safety measures, they can be held legally responsible for the personal injuries sustained by their patrons.

This same legal principle applies to all business owners, not just sports teams. Recently, a jury held Nordstrom's liable for personal injuries suffered in a criminal attack which occurred in one of their stores in Bethsada, Md. In 2008, a woman entered the store armed with knives and began chasing shoppers. Two shoppers were stabbed multiple times and sued for their personal injuries. They argued at trial that eight minutes passed from the time the attacker entered the store to when they were injured and that during this time, Nordstrom employees made no effort to warn shoppers or evacuate the store. Due to the failure to warn the customers of the attacker in the store, the jury awarded $1.6 million dollars to the two victims.

As an Alameda personal injury lawyer, I have represented individuals who have been seriously injured in criminal attacks at various business, including bars, restaurants, bowling alleys, gas stations and other businesses. Each case is unique. Success in litigating these type cases depend heavily on a thorough investigation of not only what happened in the particular case, but also into what the business owner knew about before the attack ever took place. In cases where there was considerable criminal activity and the business owner failed to take reasonable steps to protect his customers from these dangers, the owners were held responsible for these injuries.

Resources:

CBS, Beaten Giants Fan Emerging From Coma, April 14, 2010

Washington Post, Jury orders Nordstrom to pay $1.6 million to Bethesda stabbing victims, April 18, 2011

As an Oakland personal injury lawyer for over 27 years, I have seen how simple mistakes when dealing with insurance adjusters can cost client auto accident victims dearly. I have written a brochure to help people who have been involved in accidents, entitled "8 Critical Mistakes that Can Cost You Thousands of Dollars If You've Been Injured in an Accident." I previously blogged about the mistake of signing medical authorizations. Today, I would like to discuss the number 1 mistake people make, which is giving written or recorded statements to insurance adjusters.

Frequently, within days and sometimes within hours of a car accident, insurance adjusters for the other person's insurance company will give you a call to discuss your claim. Invariably, in that initial conversation they will ask for a recorded statement. It is always a mistake to agree to this. Adjusters may say they need it if you wish to settle your claim. Or they may be more brazen and question whether you have something to hide. They will say anything to coax you into giving the statement. You don't have to give it.

What is the problem with cooperating and giving the recorded statement? There are several. First, the insurance adjuster has a distinct advantage over you in terms of knowledge about claims. For most people, giving a statement to an adjuster is a rare event; but for the seasoned adjuster, they have taken literally hundreds if not thousands of statements. Therefore, they know what information is helpful to their position and harmful to yours, and you don't. Second, insurance adjusters will often ask questions about things that they are not entitled to know about. Without proper understanding of the law, the innocent victim has no way of knowing what information the insurance company is or is not entitled to. Next, questions about how an accident occurred or the nature and extent of injuries, can be vague or ambiguous. You may be thinking the adjuster is asking you one thing, when in fact they are really asking you something else. Or you may give an ambiguous statement that is later twisted in its meaning so that the words are used against you. Or you may simply make a mistake in your statement, which you later realize but it is now too late to correct.

The bottom line is there is no upside potential to giving a statement, written or recorded, to an insurance adjuster, and there is plenty of downside. Once the statement is given, it can never be retracted. You can later try to explain what was meant or why you said a specific thing in giving the description of the accident or a description of your injuries, but the insurance company will continually harken back to what you said within days of the accident.

If you have been injured in an auto accident which was caused by someone else's negligence, you have a legal right to file a personal injury claim. Legally, you are entitled to compensation for all of your medical bills, those incurred and those likely to occur in the future, all of your lost earning, past and future, and full compensation for the pain and suffering you have experienced. In the case of serious injuries, the pain and suffering may be a permanent, life long condition. It is truly a tragedy when one who is seriously injured in a car accident does not receive full compensation for these losses due to simple mistakes, which were made when giving a statement to an insurance company, before contacting a personal injury attorney.

Many California insured drivers are surprised to learn that their underinsured motorist coverage does not cover them to the full extent of their coverage. So, for example, when you purchase a $100,000.00 worth of under insured coverage, you will never, under any circumstances, recover the full amount of that policy. This is because California insurance law grants the insurance company a set-off or deduction for any money the injured person received from the underinsured driver.

Here is how an underinsured motorist claim is currently handled in California. First, one must have underinsured motorist coverage which has higher limits than the at fault driver who caused the accident. Second, their personal injury claim must be worth more than the limits of the other driver, and one must settle their personal injury claim against the at fault driver for the full amount of that person's policy. Third, they make a claim for the full amount of their damages, up to their underinsured limits, against their own policy. And finally, and here is where the inequity arises, the insurance company deducts from their claim any monies the injured person received from the settlement with the third party.

Here is how the program worked in a recent San Jose auto accident case where I represented a car accident victim in a personal injury claim. My client had a policy with $100,000.00 of underinsured motorist coverage. He was involved in a frontal collision with another driver. The at fault driver had liability limits of $50,000.00. As a result of the car crash, my client herniated a disc in his low back. He required surgery to repair the disc in his back and missed several months of work. The value of his personal injury claim was clearly worth more than $150,000.00 due to the pain and suffering he endured, his lost earnings, and medical expenses which were over $80,000.00. The case was settled with the other driver for the full amount of his limits of $50,000.00. Next a claim was made against my client's underinsured motorist policy. Due to the extent of his injuries and damages, fairness would dictate that he was entitled to the full amount of his underinsured coverage, i.e. another $100,000.00. However, he was not entitled to the full $100,000.00, only $50,000.00. This is because his insurance company was legally entitled under existing California law to take a full set off for the amount received from the other driver.

This is unfair and must be changed. Whether someone purchases $100,000.00 worth of coverage, or any other amount of coverage, the insured expects that they will be covered up to the full amount of the coverage. Under California law as it now exists, however, the insurance companies never have to pay the full amount of the coverage, because there is always a settlement with the third party, which always entitles them to their deduction.

The California legislature and Governor Brown have an opportunity to help policyholders and correct this inequity. There is currently a bill before the Assembly, AB 1063, which will take away the insurance companies' right to the set-off. This is the law in over half the States. As an Alameda personal injury lawyer, who has personally seen how the current law has resulted in great hardships and unfairness to California car accident victims, I strongly support the passage of this bill.

Resource:

AB 1063

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

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