Articles Posted in ATV Accidents

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

To plead a cause of action for negligence per se, plaintiff must allege: defendant violated a statute, ordinance or regulation; violation proximately caused death or injury to plaintiff; such death or injury was the kind that the statute, ordinance or regulation was designed to prevent; and plaintiff belonged to the class of persons for whose protection the statute, ordinance or regulation was adopted. (The Rutter Group, California Practice Guide, Civil Procedure Before Trial, Section 6:129.1; also citing Randi W v. Muroc Joint Unified School District (1997) 14 Cal.App.4th 1066, 1087). This is sufficiently pleaded.

Though also not before the court in the demurrer stage, the relevant statute is one likely to be known only by those who regularly rent such ATVs for a living, and creates a legal duty to the renter of ATVs not to violate or induce violation of that statute.

DEFENDANT’S ARGUMENTS ABOUT CORPORATE VS. INDIVIDUAL LIABILITY AND ABOUT JOHN BLACK’S LEGAL RELATIONSHIP TO THE CORPORATION AND TO THE PLAINTIFF ARE BOTH INCORRECT ON THE LAW, AND UNTIMELY RAISED AT THE DEMURRER STAGE
Though we could further detain the court with our legal research on the various ways in which John Black is responsible for what happened at BJ’s ATV rentals at the time at issue in the case – suffice it to say that we believe that the case law with which we are familiar, including that mis-cited by defendant in an argument inappropriate to a demurrer, pins John Black with liability in this case – this issue is not now before the court, and cannot be before the court before we have done sufficient discovery to be able to put admissible evidence forward if a motion for summary judgment is filed.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

Paragraph 32 explicitly asserts that the negligence of the defendants, therefore including John Black, was the legal and proximate cause of harm to Kathy White.

Paragraph 33 sets forth all that is needed to defeat this demurrer in a single paragraph, asserting a duty of care, breach of that duty of care, therefore negligence, causation and damages, all as to defendants, therefore including John Black.

Paragraph 34 sets out an explicit assertion of negligence per se against defendants, therefore including John Black.

Paragraph 35 asserts causation and damages against defendants, including therefore John Black

Paragraph 36 sets out the nature of the damages caused by negligence of defendants, including therefore, John Black.

Is this enough to defeat the demurrer? Statute, case law, and commentary all support that conclusion.

As to the general negligence claim, it is black letter law that “Negligence claims can be pleaded generally, without specifying the particular breach or the manner in which the accident occurred.” (The Rutter Group, California Practice Guide, Civil Procedure Before Trial, Section 6:129). Plaintiff need only allege that the defendant owed a duty of care to the plaintiff, that the duty was breached and that breach was the cause of the damages sustained by the plaintiff.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

PLAINTIFF DID NOT INTEND TO INCLUDE NON-PHYSICIAN JOHN BLACK AS A DEFENDANT IN THE MEDICAL MALPRACTICE CAUSE OF ACTION, AND DO NOT OPPOSE THE DEMURRER AS TO MR. BLACK FOR THAT CAUSE OF ACTION ALONE

The phrase “as to all defendants” referring to the medical malpractice cause of action should have been changed when the second amended complaint was filed, so as to separate the health care providers, to whom the first cause of action is addressed, from the ATV renters who failed to show a minor how to use their vehicles, to whom the second cause of action is addressed. We do not intend to show that Mr. Black was a stealth physician or that his duty to Kathy White was that of doctor to patient. We do not oppose this demurrer as to that first cause of action.

We also note in passing that this could have been cleared up with a phone call or any form of meet and confer, without wasting the court’s time.

GENERAL NEGLIGENCE IS SUFFICIENTLY PLEADED AS TO JOHN BLACK
Plaintiffs’ second cause of action begins with Paragraph 27, and applies explicitly to defendant John Black and Defendant BJ’s ATV Rentals. There are two defendants to whom this cause of action applies. Therefore, the plain meaning of an assertion that refers to “defendants” in the plural includes assertions directed to both of these two defendants. This includes John Black.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

FACTUAL BASIS OF THE CASE

Plaintiff’s assertion is that plaintiff Kathy White went ATV riding with her fiance and his children. One son, a minor, rented an ATV without receiving the statutorily required training session in handling the ATV, when that minor and the adults doing recreational driving lacked the safety certificate required by law if the minor is not given specific safety training. Vehicle Code §38503. No person under the age of 18 years, on and after 1990, shall operate an all-terrain vehicle on public lands of this state unless the person satisfies one of the following conditions:

(a) the person is taking a prescribed training course under the direct supervision of a certified all-terrain vehicle safety instructor;
(b) The person is under the direct supervision of an adult who has in their possession an appropriate safety certificate issued by the state, or issued under the authority of another state;

(c) The person has in possession an appropriate safety certificate issued by this state or issued under the authority of another state.

Both the company defendant, BJ’s ATV rentals, and the owner, operator, and developer and implementor of policies for BJ’s ATV, John Black, knowingly and intentionally failed to show the youngster the safety methods needed for that rental to be safe, and thereby violated the applicable statute. As a result, the failure of the youngster to handle the ATV properly in a difficult situation caused an accident that resulted in the fracture of Ms. Kane’s wrist, the kind of damage the law was passed to prevent, in a injured person of the class the law was designed to protect.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

Those required assertions are made in some detail in Paragraphs 28 through 36 of the second amended complaint. Mr. Black is a defendant, and a series of allegations directed towards the defendants apply to him.

In addition to asserting a duty of care running to the plaintiff through the foreseeable harm which careless conduct by Mr. Black would cause, the allegations set forth in this complaint assert a legal duty to comply with specific statutory law designed to protect persons like the plaintiff, and that Mr. Black, like other defendants, breached that duty and caused harm.

The next stop for this defense firm, if it thinks it has the goods, is summary judgment, after discovery is completed. We believe that Mr. Black in fact was personally responsible for the failure of the rental company he owned and controlled and whose policies he personally dictated to give the training to a minor that would have prevented this accident, when such training was required by law, or to refuse to rent an ATV to a minor in the absence of such training or licensed supervision. We believe that when discovery has progressed to the point when summary judgment might be sought, there will be no more noise from Mr. Black or his lawyers.

But the only issue now before the court is the legal sufficiency of the allegations in the four corners of the complaint or reasonably inferred from those four corners, all as liberally construed, under applicable case law, in favor of the party opposing demurrer. This demurrer wastes the court’s time. (See Part 3 of 6.)

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

OPPOSITION TO DEFENDANT ROBERT BLACK’S DEMURRER TO SECOND AMENDED COMPLAINT
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION

This demurrer begins with what the defendant hopes will be his closing argument, moves along through a factual background section that leaves out facts of the case relevant to the demurrer, and then proceeds to act as though a demurrer was a summary judgment motion, and as though California had not gone to notice pleading a century and a half ago.

To remind defendant, since this court needs no such reminder, to survive a demurrer the pleadings need only allege those ultimate facts required to define a cause of action under California law. If the defendant believes that those asserted facts are false or cannot be proven, they are free, once discovery has been had, to file a motion for summary judgment. Once we are at the summary judgment stage, plaintiff will have to produce sufficient admissible evidence for a reasonable jury to go her way. At the demurrer stage, only legally sufficient pleading is required.

Since the pleadings explicitly list Robert Black as a defendant in the Second Cause of Action for Negligence, all that need be alleged is that Mr. Black had a duty of care running to the plaintiff, that he breached this duty, was therefore negligent, and that this breach caused harm. Once those allegations are made, no demurrer to this cause of action lies. (See Part 2 of 6.)

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