Articles Posted in Wrongful Death

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this wrongful death/elder abuse case and its proceedings.)

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

HEALTH AND SAFETY CODE SECTION 7155.5(c) DOES NOT BAR ANY OF THE CAUSES OF ACTION CONTAINED IN PLAINTIFF’S COMPLAINT

California Health and Safety Code section 7155.5(c) states as follows:

(c) A hospital, physician, surgeon, coroner, medical examiner, local public health officer, enucleator, technician, or other person, who acts in accordance with this chapter or with the applicable anatomical gift law of another state or a foreign country or attempts in good faith to do so is not liable for that act in a civil action or criminal proceeding.

Defendant’s demurrer with respect to this section is based on misstatement of the allegations contained in Plaintiff’s complaint and a misreading of the statute.

Defendant ODA Did Not Act In Accordance With The Provisions Of The Chapter At Issue

The chapter at issue as referenced by the statute is the Uniform Anatomical Gift Act, (California Health and Safety Code section 7150 et seq.). Plaintiff’s complaint contains several allegations and causes of action which make it explicitly clear that Defendant Organ Donor Association and its agents, employees and co-conspirators did not act in accordance with the provisions of the Uniform Anatomical Gift Act ( UAGA ).

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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 wrongful death/elder abuse case and its proceedings.)

PLAINTIFF’S OPPOSITION TO DEFENDANT ORGAN DONOR ASSOCIATION’S DEMURRER TO FIRST AMENDED COMPLAINT
INTRODUCTION

For sake of brevity, Plaintiff will not repeat all the facts alleged in the complaint. Defendants wilfully misled Plaintiff about the condition of her son, and fraudulently obtained her consent to donate his organs. Defendants ignored Robert Lee’s doctors, who said he should not be a candidate for organ donation, and then violated California law and illegally injected him with lethal doses of drugs in an effort to hasten his death. Defendant David Hill has been charged with three felony counts by the Sacramento County District Attorney. This civil action is filed against all those who are responsible for what happened to Robert Lee.

It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.

PLAINTIFF’S CAUSES OF ACTION AND RELATED FACTS ARE SUFFICIENTLY PLED

In a valiant effort to leave no stone unturned, Defendant ODA demurrers to literally every single cause of action contained in Plaintiff’s complaint. Each argument made by Defendant to each cause of action shares something in common; they all lack merit. Defendant’s demurrer should be overruled in its entirety.

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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 wrongful death/personal injury case and its proceedings.)

OTHER OUT OF STATE CASES HOLD THAT AMUSEMENT PARK RIDES CAN BE CONSTRUED AS COMMON CARRIERS

Defendants cite cases from Georgia, Virginia, Iowa, Florida and Utah to make the argument that common carrier liability should not extend to operators or owners of an amusement park. As Plaintiff has demonstrated by the Elmer case, the most recent trend allows recovery for amusement rides under common carrier liability. Likewise, other states have held amusement rides to be common carriers. See e.g., Lyons v. Wagers (1966 Tenn. Ct. App.) 404 SW2d 270 (operator of amusement ride known as the Mary Mixer held to highest degree of care equivalent to that of a common carrier); Coaster Amusement Co. v. Smith (1940 Fla.) 194 So. 336 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Bibeau v. Fred W. Pearce Corp., (1928 Minn.) 217 N.W. 374 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Cooper v. Winnwood Amusement Co., (1932 Mo. Ct. App.) 55 S.W.2d 737 (operator of a roller coaster held to the highest degree of care for passenger safety); Sand Springs Park v. Schrader (1921 Okla.) 198 P. 983 (operator of a scenic railway held to the duty of highest care, skill and diligence).

The most recent case, Elmer v. Speed Boat Leasing, Inc., et al., supra, illustrated the connection of amusement rides to common carrier liability as demonstrated above. The court in Elmer relied on an out of state court decision, i.e. the Supreme Court of Colorado, as persuasive authority. While these court decisions are not binding on the Court in the present case, they should be heavily considered in weighing the decision to factor amusement park rides in as common carriers.

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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 wrongful death/personal injury case and its proceedings.)

Additionally, the California Supreme Court addressed this very issue in Smith v. O’Donnell (1932) 215 Cal. 714, an airplane collision case. In Smith, the California Supreme Court held that an airplane sightseeing ride over the ocean beginning and ending at the Long Beach Airport should have common carrier liability imposed regardless of the departure and arrival having the same location.

Further, it would be unsound that two passengers seated side- by-side on a tour bus who might have been injured during the carriage would be entitled to different standards of care depending of where each departed. If defendants’ argument is followed, a passenger who exists a tour bus before returning to the place of departure would be entitled to a higher standard of care, while the passenger who stayed on to return to the original point of departure would be, by virtue of the fact that he started and ended up at the same place, entitled to a lower standard of care.

A PASSENGER’S INTENT IS NOT DETERMINATIVE IN DECIDING WHETHER COMMON CARRIER STATUS ATTACHES

Defendants argue against the application of common carrier status to the Dinosaur Attraction on the basis that carriage on the ride is sought for entertainment rather than transportation purposes. However, the subjective intent of a passenger is not determinative of the level of care that should attach to a carrier. The court in Squaw Valley upheld common carrier liability against a ski-lift operator irrespective of the fact that undoubtedly people go to ski resorts for entertainment and thrills.

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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 wrongful death/personal injury case and its proceedings.)

POINT OF DEPARTURE AND FINAL DESTINATION NEED NOT BE DIFFERENT TO WARRANT THE IMPOSITION OF COMMON CARRIER STATUS

Defendants argue that because the Dinosaur Attraction picks up and returns passengers to the same location it does not qualify as carriage in accordance with California’s common carrier statute as the ride does not transport passengers from one place to another. The fact that the attraction may start and finish at the same location does not exempt it from common carrier liability.

As demonstrated above, the court in Elmer v. Speed Boat Leasing, Inc., et al., supra, held that despite the fact that the boat ride commenced and ended in the same location, common carrier liability still applied. Likewise, in the Buckskin Joe’s case, the court did not find the absence of transporting the stagecoach from “point A to point B” to be a determining factor in its decision to uphold common carrier liability.

In its demurrer, defendants try to differentiate the Squaw Valley case to the present case by stating that under Civil Code §2168, an entity must transport goods or persons from place to place for profit. Defendants erroneously suggest that because the Dinosaur ride starts and finishes in the exact location, a common carrier liability theory is inapplicable.

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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 wrongful death/personal injury case and its proceedings.)

The California legislature intended the definition of common carrier to be broad. Absent a specific exclusion from the statute, amusement park rides fall within this realm. Thus, the Dinosaur Attraction is likewise a common carrier for which Universal Theme Park owes a duty to use the utmost care and diligence to its guests. This duty is imposed upon them by Civil Code §2100.

Additionally, a California court upheld common carrier liability against a ski lift operator. Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499. That court also stated that had the legislature intended to exempt chair-lift operators from common carrier status for the purpose of tort liability, it easily could have amended Civil Code §2168 to accomplish this objective. Id. at 1514. Ski-lift operators were not exempted from §2168, nor were amusement park operators. Until the legislature imposes this limitation, these entities can be subject to common carrier liability as long as they meet the requirements mentioned above.

MORE CASE LAW FAVORS PLAINTIFF’S POSITION THAT AMUSEMENT PARK RIDES SHOULD BE TREATED AS COMMON CARRIERS

As demonstrated by the court in Elmer, the split in authority whether amusement park rides and/or operators constitute common carriers tends to favor Plaintiff. Neubauer v. Disney, supra, identifies California cases which have further found attractions analogous to amusement park rides to be considered common carriers. For example, in McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489 the court found common carrier status in a guided tour mule ride which carried sightseeing passengers over a designated route between fixed points for a round trip fare. As noted above, the court in Squaw Valley found common carrier status on a chair lift carrying skiers at a fixed rate from the bottom to the top of the ski run.

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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 wrongful death/personal injury case and its proceedings.)

CALIFORNIA LEGISLATIVE INTENT DEMONSTRATES A BROAD DEFINITION UNDER THE COMMON CARRIER LIABILITY STATUTE TO ENCOMPASS AMUSEMENT PARK RIDES
California is unique in that it has a statute for common carrier liability and therefore does not need to rely solely on case law authority. California Civil Code §2100 states:

A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

Civil Code §2168 defines who and/or what constitutes a common carrier in a tort action. This section states that everyone who offers to the public to carry persons, property, or messages, excepting only telegraph messages, is a common carrier of whatever of what he thus offers to carry. California has gradually adopted a broader definition of common carrier to encompass airplanes, buses, taxicabs, escalators, elevators, mule trains and ski-lifts. (Lopez v. Southern Calif. Rapid Transit Dist. (1985) 40 Cal. 3rd 780; Larson v. Blue & White Cab Co. (1938) 24 Cal. App. 2nd 576; Hendershott v. Macys (1958) 158 Cal. App. 2nd 324; Parker v. Manchester Hotel Co. (1938) 29 Cal. App. 2nd 446; McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499).

Universal Theme Park amusement park rides have been held to be common carriers under California’s broad statutory definition of a common carrier. See Neubauer v. Disney (C.D. Cal. 1995) 875 Fed. Supp. 672 (Universal Theme Park’s “Pirate Ship” was held to be a common carrier falling within California’s statutory definition of a common carrier). The Neubauer court found that under California law a duty of utmost care and diligence upon a common carrier of paying passengers applied to Universal Theme Park. The court relied on the California legislature’s long history of broadly defining a common carrier.

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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 wrongful death/personal injury case and its proceedings.)

In the present case, defendant erroneously argues that Ms. Demers’ voluntary decision to ride the Dinosaur Attraction coupled with the fact that it was strictly for pleasure, disallows recovery under common carrier liability. Defendants’ argument lays heavily in the fact that the Dinosaur Attraction starts and ends in the same location. However, an application of the reasoning in both Elmer and Buckskin Joe’s to the case at hand clearly shows that Plaintiff has properly pled common carrier liability irrespective of destination and intention. Ms. Demers surrendered herself to defendants’ custody and control when she placed herself on the ride, lost her freedom of movement and actions, and was a helpless passenger in the care of defendants. Ms. Demers could not have prevented the incident, nor was she in any way at fault in causing or contributing to her wrongful death.

This example is analogous to a passenger on an airplane. Should that airplane plummet to the ground, the passenger should not be held accountable simply because he voluntarily chose to board that particular airplane. Similarly, Ms. Demers’ decision to ride the Dinosaur Attraction should in no way detract from Defendants’ liability. Defendant had sole possession and power over her once the ride began and should be held accountable under the highest degree of care.

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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 wrongful death/personal injury case and its proceedings.)

This test, hereinafter referred to as the “Buckskin Joe’s” test, is a critical factor in light of all the controversy surrounding common carrier liability. While many courts focus on the destination and/or intention of passengers, the Buckskin Joe’s test narrows the focus to the heart of the issue, i.e., who had control of the situation, and who had the power to prevent and/or cause the injury.

The Buckskin Joe’s case involves a stagecoach ride patterned after the historic stagecoach rides enjoyed by early settlers in Colorado. This ride commenced and ended in the same place. The ride consisted of horses drawing a stagecoach wagon along a designated path. The pace of the ride varied from a slow walk to a gallop, to give paying riders thrill and excitement, simulating the sensation of the old west. Regardless of the fact that the ride did not transport passengers from “point A to point B,” and was purely for entertainment, the court still determined that the absence of freedom of movement and control warranted a finding of common carrier liability.

This concurs with Plaintiff’s allegations that neither destination nor intention are determining factors in whether a ride is deemed a common carrier. Rather, the focus lays heavily on the operator of the ride, who is in control and who has the ability to prevent and/or cause the wrongful death/injury to riders. This is the crux of the Elmer case. (See Part 5 of 10.)

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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 wrongful death/personal injury case and its proceedings.)

Paul Smith gags when he tries to drink water. Steven Davis has nightmares about his family dying. Mike Jones still has flashbacks during which he sees Sherrie Johnson in the room with him. All three of these men feel tremendous guilt that they survived the contest, and Sherrie did not. Under Fletcher, supra, it is the Court’s job at this juncture to determine whether, on the evidence, emotional distress can be found. Plaintiffs have each established not only that such emotional trauma can be found, but has been diagnosed at the clinical level, and is being treated by professionals. Against this scientific, clinical showing of severe emotional distress Defendants cannot show the absence of a triable issue as to any material fact. On that basis, the Motion must be denied.

Emotional Distress That Arises as a Consequence of Sherrie Johnson’s Death is Recoverable When Plaintiffs Were Exposed to the Same Risk of Harm
Defendants mistakenly rely on Thing v. La Chusa (1989) 48 Cal. 3d 644 and its progeny to argue that because none of the Plaintiffs were related to Sherrie Johnson or even actually witnessed her death. This completely misses the point. The line of cases cited by Defendant involves claims by plaintiffs who were not themselves the target of the same wrongful conduct that resulted in harm or injury to the other person. Here, each of the Smith Plaintiffs suffered physical injury as a result of participating in the same contest that killed Sherrie Johnson. Their physical symptoms ran the gamut from vomiting to nausea, discomfort, pain, headaches and skinned up arms and legs (Paul Smith, caused when he had to crawl to the bathroom).

California has long defined a bystander as one who claims, damages for emotional distress caused by observing the negligently inflicted injury of a third person. Thing, supra, 667-668.

Here, none of the Smith Plaintiffs claim IIED because they witnessed the death of Sherrie Johnson. Rather, their claims are based on participating in the same contest and being a victim of the same conduct that killed her. They are not bystanders; they are direct victims of an event that resulted in the death of one participant and injuries to others, including these three women. For that reason, none of the authorities cited by Defendants with respect to bystander liability relate to the claim for intentional infliction of emotional distress.

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