Oakland Personal Injury Lawyer Blog

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

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

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

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

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

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

Resources:

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

National Conference of State Legislatures, June 2011

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

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

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

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

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

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

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

Resources:

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

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

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

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

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

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

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

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

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

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

Resources:

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

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

On June 14, 2011 a Fremont man lost his life when his car was involved in a rear end accident on the Dumbarton Bridge. Terrence Abdullah, was traveling westbound on the Dumbarton bridge when his vehicle stalled. After his car stalled, a car driven by Roberto Lopez slammed into the rear of Mr. Abdullah's car. Mr. Abdullah died at the scene.

The report did not give an explanation as to why Mr. Lopez did not see the stalled vehicle in front of him. The accident occurred at 4:00 p.m. and there were no reported visibility problems. Although the accident is still under investigation, normally someone who rear ends a stopped vehicle, such as happened here, is legally responsible for personal injuries and or the wrongful death of the other driver.

When a car stalls on the road, the police and insurance investigation will also center on why the vehicle stalled. If the car simply ran out of gas or there were foreseeable mechanical problems with the car, the driver of the stalled car can be held comparatively liable for his own injuries or death. Comparative fault reduces the amount of recovery that a negligent person might otherwise recover by the percentage of fault that he contributed to his own accident. In the case of a wrongful death claim, the decedent's percentage of fault would reduce the amount of recovery by his family.

As a Fremont personal injury lawyer, I have seen many rear end type personal injury accidents over the years. Some of the most serious involve accidents like this Fremont accident on the Dumbarton bridge where a car stalls on a high speed roadway. It's a real dilemma for drivers to decide whether to stay in their car or vacate. There are several safety tips that you should consider if your car stalls on the freeway.

According to the California Department of Motor Vehicles, if your car stalls on a freeway you should do the following:

Safely pull to the right shoulder if possible.
If you must exit the car, you should get out of the car on the right side away from traffic.
Wait in your car, with your seatbelt on, while you wait for assistance.
It is a good idea to not set your brake if on flat land and leave the car in neutral. This will lessen the impact forces if you are struck from behind.

If you cannot pull to the shoulder, or if there is no shoulder area, you should put on your hazard lights and exit your vehicle. However, you should stay safely away from the car and other moving traffic. Do not attempt to run across lanes of traffic on the freeway. The California Highway Patrol recommends standing 150 feet in front of your vehicle on the catwalk area if stalled on a bridge.

Other tips recommended by the AAA, are: don't try and fix your car yourself. Be careful not to place flares in any area where they might ignite flammable material such as roadside debris, dry grass, etc. Before leaving on your trip, make sure you have plenty of gas. Carry emergency materials such as flares, flashlights, warning triangles, and reflector vests. It's good to carry these items inside your car as you do not want to have to go to the back of your car and open the trunk while your car is stuck in traffic.

Some of the most serious car accidents I have seen over twenty-eight years of representing personal injury victims are those where someone has broken down on a high speed freeway. By using these tips mentioned above, you and your family can lessen the risk of serious injury or death if your car breaks down on the freeway.

Resources:

Oakland Tribune, Fremont man killed in Dumbarton Bridge accident, June 14, 2011

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

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

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

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

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

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

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

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

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

Resources:

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

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

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

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

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

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

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

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

Resources:

Cabral v Ralphs Grocery Company

Lawson v Safeway

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

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

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

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

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

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

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

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

Resource:

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

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

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

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

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

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

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

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

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

Pogo Sticks manufactured by a Chinese company and distributed in the United States by Bravo Sports of Santa Fe Springs, California have been recalled. The hazard identified by the Consumer Product Safety Commission involves a defect in the frame of the stick. The bottom of the pogo Stick's frame tube may break and a pin holding the spring in place can also break. The manufacturer has received numerous reports of the pogo sticks breaking and causing personal injuries.

The products being recalled include the Rocket Stick Pogo, Pop Stick Pogo, Monster Stick Pogo and Twin Stick Pogo. Only sticks with manufacturing dates between April 1, 2010 and October 31, 2010 are involved in the recall. The manufacturing date code can be found on a white label underneath the foot pedal or on the stem of the pogo by the foot pedals. Retailers and on-line web sites sold the pogo sticks nationwide.

Anyone owning one of these pogo sticks should stop using it immediately. Consumers may contact Bravo at (877) 992-9905 for a full refund.

If you know of anyone injured as a result of the frame breaking they should report the injury to the CPSC at 800-638-2772. Injured parties may also have a claim for personal injuries under California's product liability laws. A manufacturer, wholesaler or retailer of a defective product is strictly liable for damages caused by the defects in its products. This is true whether the product was defectively designed or defectively manufactured. A product may be deemed defectively designed if it fails to meet ordinary consumers' expectations as to safety or if the risk of harm inherent in the design outweighs the potential benefits of the design.

Sellers of defective products are responsible for personal injuries caused by defects in their products even if they were not negligent in the manufacture or design of the product. This reasoning behind this was first expressed by our Supreme Court in the case of Escola v Coca Cola Bottling Co over fifty years ago. Justice Traynor at that time stated that public policy demands that sellers of products be responsible for the quality of their products regardless of whether negligence is involved.

As a California product liability lawyer, I have seen the curative affect that product liability claims have on industry. For example, product liability lawyers led the way in the early 70's against manufacturers of asbestos products. Now the dangers of these products are well known and have been removed from the marketplace. Similarly, we have taken on the drug industry where it knowingly sold medications to consumers that it knew were unsafe. Product liability laws not only compensate those who have been injured by dangerous products but protect the public against the dangers of unsafe products being placed on the market.

Resource:

News from CPSC, Pogo Sticks Recalled by Bravo Sports Due to Risk of Serious Injury, March 16, 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

The next time you are out driving, see how far you can go before you have to make a left turn. Better yet, see if you can avoid left turns altogether. If you drive for UPS, that's just what you would be doing.

A few years ago, UPS initiated a system where their drivers avoid left turns. The company started using a computerized system called "package flow" which maps out the drivers' routes to avoid left hand turns whenever possible. The company found that their drivers were wasting lots of time, and therefore burning lots of fuel while waiting for traffic to clear before making left hand turns. So they decided to route around them. The company found that by reducing the number of left hand turns, they reduced their driving miles by over 28.5 million and saved roughly 3.5 million gallons of gasoline!

It is well known that one of the most common types of auto accidents is the left turn collision occurring at an intersection. It is estimated that 27% of all intersection accidents in the United States are related to left hand turn crashes. As an Oakland personal injury attorney, I would add that these left hand turn accidents also tend to cause severe injuries. This is due to the fact that the impacts are virtually head on, or in some cases to the side of the vehicle where there is far less protection.

So do yourself a favor. Avoid left hand turns at intersections whenever possible. You'll be saving gas, reducing polluting emissions, and reducing your risk of personal injury accidents all at the same time. What a deal!

Resources:

New York Times, Left-Hand-Turn Elimination, December 9, 2007

United States Department of Transportation, FHWA, Permissive/Protected Left Turn Phasing