Oakland Personal Injury Lawyer Blog

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

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

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

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

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

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

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

Resources:

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

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

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

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

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

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

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

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

Resources:

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

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

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

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

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

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

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

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

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

Resources:

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

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

An Alameda man was arrested following a hit and run auto accident in which one man was killed in Hayward on January 28, 2011. Juan Nunez was charged with two counts of hit and run and vehicular manslaughter charges. Mr. Nunez is accused of driving his Land Cruiser into the side of a Toyota Tundra causing the driver of that vehicle to loose control and strike a light pole.

Drunk drivers are civilly liable for compensatory damages for personal injuries and wrongful deaths caused by their negligent driving. These damages would include compensation for medical expenses, loss of earnings, loss of earning capacity, and non-economic damages for pain, suffering, loss of enjoyment of life, and other non-monetary losses. Drunk drivers may also be held liable for punitive or exemplary damages. These are money damages which are meant to punish the drunk driver. The amount of the punitive damages is not set by law, but is related to the recklessness of the conduct of the drunk driver, and the wealth of the drunk driver.

As an Alameda personal injury lawyer, I have represented many victims of drunk driving. I am also a lawyer on MADD's panel of attorneys who represent those who are injured or killed by drunk drivers. Over the past several years I have seen that the amount of drunk driving and fatal accidents has gone up and down. Studies have shown that alcohol related fatalities were highest in California in 1982. There was then a steady decline in both the total number of drunk driving deaths and injuries until 1998. After that the trend started upwards again. In 2006, 30% of all auto related deaths involved drunk drivers. As a society, we must do all we can by way of education, and appropriate legal penalties, both civil and criminal, to reduce the numbers of these alcohol related deaths and injuries.

Resources:

Oakland Tribune, Manslaughter, DUI charges sought in fatal Hayward crash, January 28, 2011

Alcohol Alert, California Drunk Driving Statistics

As a father of four children, it seems that I am constantly having releases of liability thrown in my face when my kids participate in activities as mundane as playing basketball, or going on school activities, etc. You have probably seen the releases: In big bold print (or sometimes not such big print) they will state something like "This is a Release/Waiver of Liability" The activity your child is participating in has inherent dangers. If he or she is injured, you promise not to sue us, etc. The question often arises whether these releases are enforceable.

A recent California case addressed this in the case of an equestrian accident resulting in the death of a 17 year old girl. The girl, according to the wrongful death suit, was permitted to participate in a competition with an unfit horse, which had recently suffered serious injuries, that were not reported to the parents. The court held that concealing this information and allowing the child to ride an unfit horse in the competition could equate to gross negligence. As a matter of public policy, waivers will not prevent lawsuits where there is gross negligence and therefore the court allowed the matter to go to trial.

As an Oakland personal injury lawyer, I see more and more of these waiver agreements where there have been personal injury accidents. You often see them in contracts for gym and fitness memberships, for sporting events, or children's activities. Each case involving a signed waiver or release of liability must be carefully scrutinized. There is a trend among the courts to enforce these agreements, but they can be defeated if the agreements violate public policy, are vague and ambiguous, or are not clear and conspicuous in the paperwork.

Resource

Eriksson v Nunnink, January 10, 2011

2010 ended with the tragedy of 3 people dying in an apartment fire. The reports indicate that one of the tenants had her electricity shut off by PG & E. In order to help her out, one of the other residents allowed her to string an extension cord to her unit and draw power off of that. Unfortunately, this overloaded the circuit and caused a fire to break out.

The building was bank owned having been taken it over in a foreclosure. There were no operating smoke alarms in the units. Having properly installed and working smoke detectors could have save three innocent lives.

California law is very clear. The owner of an apartment building must keep its units in a habitable condition. It is considered "uninhabitable" if the premises fail to meet building codes, including working smoke detectors in units and common stairwells (Health & Safety Code section 13113.7).

When the owner of an apartment unit breaks the law by failing to have properly installed smoke alarms, it is responsible for personal injuries and wrongful deaths caused by the failure to comply with the law. As a personal injury lawyer in Oakland and the surrounding cities, we are seeing more and more properties being taken over by financial interests in foreclosures. These large institutions must be held to the same standards as individual apartment owners and keep their buildings safe for their tenants.

Resources:

SFGate.com, 7-year-old survivor of Oakland fire in legal limbo, January 1, 2011

California Department of Consumer Affairs, Landlord/Tenant Handbook

Over ten years ago, an Air France Concorde jet liner crashed on takeoff from a Paris airport. The crash killed all 113 passengers and four people on the ground. The Concorde was known for its supersonic flight and the jetting of the rich and famous across the Atlantic.

The accident was investigated by a French Court which recently ruled that Continental Airlines was responsible for the airline crash. It found that a fire was caused by a series of mishaps that began when a tire on the Concorde exploded after running over a 16 inch metal strip on the runway. The court found that the metal strip came from a Continental flight which took off minutes before the Concorde. It ruled that a Continental jet mechanic was responsible for attaching the metal strip. Continental Airlines vehemently opposes the ruling.

As an Oakland personal injury lawyer, I am familiar with how airplane accident investigations are conducted. The National Transportation Safety Board investigates airplane crashes in California and throughout the United States. It is not uncommon for investigating agencies to find more than one contributing cause to an accident. Often there may be negligent maintenance issues, defective product issues, and pilot error components to the crash. Under California law, when there are multiple causes of an accident, each negligent party is responsible for the accident.

Therefore, if there is an airplane crash in the State of California, all parties who are found to be negligent are responsible for the wrongful death of any victims of the crash. If the negligence can be apportioned, the non-economic damages for the loss of life will be divided according to the percentage of fault. With regard to economic damages, each negligent party is responsible for all of the financial loss caused regardless of the percentage of fault attributable to that party. The findings in the French Court may cause Continental Airlines to be legally responsible for the wrongful deaths claims brought by heirs in American Courts.

Resources:

Washington Post, Continental Held Liable in Crash of Concorde, December 7, 2010

A shooting occurred at a San Leandro party on October 9, 2010 at the bar and grille at the Monarch Bay Golf Club. Two people were killed and two others injured when gun shots rang out. Four victims were taken to Eden Hospital in Castro Valley and two were pronounced dead upon arrival. The party had apparently been promoted through social networking and the police are trying to identify the promoters who gave false names to the bar and grille when making the rental arrangements. The shooters have not been identified.

What is the legal responsibility of the bar and grille for the criminal acts of these unknown assailants in this San Leandro shooting? Is there owner of the business liable for the wrongful death of these two individuals?

Business owners have a duty to those who come onto their premises to use reasonable care to protect them from the harmful conduct of others on the property, if the owner can reasonably foresee such criminal behavior. If it is foreseeable that criminal activity may occur, there may be legal liability on the part of the business owner for the shooting (See the case of Delgado v Trax Bar & Grill). Foreseeability is often determined by whether there had been similar criminal activity in the past to put the owner on notice that reasonable precautions should be taken.

As a San Leandro personal injury attorney, I receive many inquires about people who have been injured in public businesses by the criminal activity of others. These can include assaults, fights, or even shootings such as in the Monarch Bay incident. Often these victims of criminal assaults are seriously hurt and they are unable to be compensated by a criminal who has either disappeared or is destitute. If the business owner however was also negligent by not keeping his business safe, these victims of violent crime can be helped.

Resources:

Oakland Tribune, Investigators looking into who promoted San Leandro party that turned fatal, October 12, 2010

A young motorcyclist died in a tragic accident on September 24, 2010 in Oakland. The motorcyclist, twenty-seven year old Robert Adams was driving his motorcycle on Hegenberger Road in Oakland when a truck driven by a Sky Chef's employee made a left turn directly in front of him. As a result, Mr. Adam's motorcycle ended up running into the side of the truck. Mr. Adams suffered serious injuries and later died at Highland Hospital.

While this Oakland motorcycle accident is still under investigation, there are a few things that can be said about this deadly collision. The California Vehicle code section 21801 states that the driver of a vehicle intending to turn to the left must yield the right of way to oncoming traffic. It also says that once he has yielded to oncoming traffic and after having put on his turn signal, all oncoming traffic must then yield to him. A full investigation will follow to determine the right of way question.

In this motorcycle accident, questions will be raised about the speed of both vehicles and which vehicle had the right of way. You can bet that the insurance companies for the Sky Chef will be hiring experts to investigate the scene and preserve all necessary evidence to protect its rights. It would be prudent for anyone who has suffered a serious injury or loss in an accident such as this to promptly hire their own experts through the use of an experienced personal injury attorney who can investigate the matter and protect their rights. As an Oakland personal injury lawyer I have often seen how the quick investigation of accidents can mean the difference between winning or losing the case.

Assuming that the driver of the left turning truck was at fault in this Oakland motorcyle accident, Mr. Adams family would have the legal right to bring a wrongful death claim in Alameda County against the driver of the truck. Sky Chef which would be liable for its employee's negligence under the doctrine of vicarious liability. His heirs would be entitled to compensation for the loss of his love, companionship, comfort and care and for any economic losses, including loss of support (California Code of Civil Procedure section 377.60).

Resources:

Oakland Tribune, Motorcyclist killed in morning crash identified, September 24, 2010