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/personal injury case and its proceedings.)

DEFENDANTS OWED DECEDENT THE HIGHEST STANDARD OF CARE UNDER COMMON CARRIER LIABILITY BECAUSE DECEDENT LOST HER FREEDOM OF MOVEMENT AND ACTION ONCE SHE WAS PLACED IN DEFENDANTS’ CUSTODY

In the most recent decision involving an amusement ride, a Texas appellate court found an operator of a business providing speed boat rides for amusement to be held liable under a common carrier theory for personal injuries suffered by the appellant on the boat ride. Elmer v. Speed Boat Leasing, Inc., et al. (2002) Tex. App. LEXIS 4670. The boat ride was designed solely for the purpose of providing an exciting and fun-packed ride. Its destination commenced and ended in the same location. Irrespective of these facts, the court reversed the district court’s decision and remanded the cause for a new trial, finding that the defendant owed a high standard of care rather than merely a standard duty of care under a common carrier liability theory.

The Elmer case is the latest case to analyze the trend across the United States regarding the application of common carrier liability to amusement rides. The court recognized the split in authority whether amusement park rides should be properly labeled as common carriers. After extensive and widespread research of existing cases, the court determined the better reasoned cases upheld common carrier liability for amusement rides. The court was especially persuaded by the reasoning in Lewis v. Buckskin Joes’s, Inc. (Colo. 1964) 396 P.2d 933 (the Supreme Court held that the highest standard of care should be applied to amusement rides). As stated, the court in Elmer endorse[d] the rationale of those courts which have held amusement ride operators to a higher standard of care. Tex. App. LEXIS 4670 at 10. The court found:
While appellees have argued, and some courts have stated, that amusement ride operators are not common carriers because they do not offer transportation from one locale to another, we find that reasoning unpersuasive… Instead, we find persuasive the analysis of the Supreme Court of Colorado, which stated:

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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.)

Thus, it is not unusual or atypical that the extent and nature of these emotional conditions was not discerned as part of Defendants’ somewhat cursory depositions of the Plaintiffs. For the same reason we cannot rule out emotional harm merely because the victims are not particularly adept at expressing their symptoms, especially in a crowded room filled with lawyers, a court reporter and a video camera (each Plaintiff was video-taped at deposition). What is critical is that, “all [three plaintiffs] have described incidents of recurring nightmares; fear; heightened anxiety; and deep feelings of guilt that arose in close proximity to the incident,” and have expressed markers consistent with a PTSD diagnosis, e.g., changes in personality; feelings of permanent damage; shame over surviving (i.e., survivor guilt); and persistent feelings that they and their families are still at risk of injury.

Clearly Paul Smith, Steven Davis, and Mike Jones have provided ample evidence not only of severe emotional distress, but of substantial quantity and endearing quality to satisfy Fletcher, Christensen and every other authority cited by Defendants, with perhaps one exception. Defendants rely on Angie M. v. Superior Court (1995) 37 Cal.App.4th 1217, 1227 for the proposition that a minor plaintiff who alleged that her 48-year old doctor, who drugged, raped, intoxicated and abused her for eight months did not allege sufficient facts to demonstrate severe emotional distress. On an even cursory examination it is clear that Angie M. does not support Radio’s position.

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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.)

SUMMARY OF FACTS

This is an action for damages for wrongful death brought by the personal representative of the Estate of Claudia Demers, on behalf of the Estate and on behalf of the heirs of Claudia Demers against various separate and distinct corporations affiliated with The Universal Co. One of the Defendants is Universal World Co., the admitted owner and operator of Universal Theme Park.

One of the theories of liability alleged against Universal World Co. is based upon common carrier liability pursuant to Civil Code §2100 and §2101. Plaintiff will demonstrate how common carrier liability attaches to Universal World Co. with respect to the Dinosaur Attraction.

PLAINTIFF HAS PLED SUFFICIENT FACTS IN ITS COMPLAINT TO CONSTITUTE A CAUSE OF ACTION PURSUANT TO CCP SECTION 430.10.

In the fourth and fifth causes of action, dealing with common carrier liability, Plaintiff has alleged that certain of the Defendants operated the Dinosaur Attraction at Universal Theme Park. The Dinosaur Attraction is described as consisting of a vehicle, referred to as a dynamic ride vehicle, which is used to enhance the sensation of vehicular motion and travel that passengers in the vehicle experience. Paragraph 49 of Plaintiff’s Second Amended Complaint states that the vehicle used in the Dinosaur Attraction is used to transport passengers while, at the same time, providing them with entertainment and thrill. The configuration of the vehicle resembles an off-road jeep. The vehicle moves along a predetermined path on a track.

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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.)

Plaintiff’s Opposition to Defendants’ Demurrer to Plaintiff’s Second Amended Complaint
MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF ARGUMENT

This is an action for damages arising out of the injury to, and subsequent wrongful death of, Claudia Demers. On June 25, 2000, Ms. Demers, a young Sacramento woman on her honeymoon, rode the Dinosaur Attraction at Universal Theme Park. As a result of the unsafe and violent nature of the ride, she suffered a subarachnoid hemorrhage and hydrocephalus that required extensive hospitalization and multiple brain surgeries. She died of these injuries after incurring over $1 million in medical expenses.

The Complaint in this action was originally filed on September 25, 2001. Defendants thereafter filed a Notice of Removal of this action to federal court. That removal was untimely and ultimately a stipulation to remand the matter back to state court as signed by the Defendants and the Plaintiff, and Defendants paid to Plaintiff’s counsel attorneys fees and costs in the amount of $2,850.00 for the untimely removal.

Plaintiff filed a First Amended Complaint for damages on or about January 30, 2002. Defendants filed a Demurrer June 7, 2002. The Court granted part of the demurrer allowing Plaintiff ten days for leave to amend the Complaint. Plaintiff filed a Second Amended Complaint on September 3, 2002.

Defendants filed another demurrer alleging that despite Civil Code §2100 and §2101, and the cases interpreting those Code sections, they cannot be held liable under common carrier law.

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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.)

Dr. Everstine has diagnosed the following emotional and psychological injuries secondary to the subject incident: 1) Paul Smith: PTSD; anxiety; major depression; phobia with respect to water consumption; 2) Steven Davis: PTSD; general anxiety disorder; major depression, agitated type ; 3) Mike Jones: PTSD; anxiety disorder; panic attacks; sleep disorder; major depression, agitated type.

Each of these men has experienced dramatic, intense and severe emotional and psychological injury due to the death of their co-contestant. Dr. Everstine opines that each will not only require years of therapy and medical management by a psychiatrist to recover, but that Mike Jones also should undergo couples counseling to help him learn how to effectively share his feelings with his spouse and others.

According to Dr. Everstine the discovery of such emotional trauma is the province of experts.
The fact that these individuals may not have articulated any particular symptoms does not mean the symptoms were not present immediately after the incident… “Such disclosures would not typically be made outside the confines of appropriate questioning by a trained professional.”

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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.)

Dr. Everstine has opined that this treatment is reasonable, necessary and causally related to the subject incident. Dr. Everstine opines that, “each of the three men exhibit symptoms consistent with a diagnosis of chronic PTSD. Each will require, “ongoing therapy and medical management through the use of appropriate medications.” This condition is secondary to the contest, during which, “each [man] experienced a severe emotional reaction as a result of participating in an event which caused the death of one person and which could have resulted in the death or serious injury to these other individuals.” In addition to PTSD, Dr. Everstine opines that each Plaintiff is also suffering from various stages of depression secondary to the event, along with general anxiety disorder consistent with significant emotional trauma.

In terms of symptoms, Dr. Everstine noted the following:

1. Paul Smith’s symptoms include severe survivor guilt; severe emotional alienation; water phobia (fear of drinking water) to the point that he is unable to drink water without gagging; flashbacks of Sherrie Johnson; sleep problems; intrusive thoughts; obsessive behavior; avoidant behavior and thought patterns; mood swings; depression; personality change; generalized anxiety with panic attacks; social alienation and social anxiety; damaged self-esteem and loss of self-confidence and reoccurring fears something similar will happen to his family.

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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.)

DISCUSSION
Because Defendants Offer Insufficient Undisputed Material Facts to Shift the Burden to Plaintiff, the Motion Must Fail

The party moving for summary adjudication must show that plaintiff cannot establish an essential element for a cause of action. C.C.P. §437c(p)(2). As a threshold, the moving party must show, that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.C.P. §437c(c) (emphasis added). Here, of the 34 undisputed material facts proffered by Defendants, only three are undisputed. Of the remaining 31 facts, four are disputed as irrelevant. The balance of 27 material facts are each disputed on substantive, material grounds. In addition, Plaintiffs offer 45 disputed material facts that bear directly on the severe, clinical and chronic emotional distress and related psychological injuries suffered by each of them. Because Defendants fall far short of the threshold burden to demonstrate there is no triable issue as to any of the material facts offered in support of summary adjudication, the motion must fail.

Defendants Cannot Establish the Absence of Disputed, Material Facts in Light of Plaintiffs’ Showing of Severe Emotional Harm and Psychological Distress

Defendants cite Fletcher v. Western Nat. Life Ins. Co. (1970) Cal.App.3d 376, 396-397 for the proposition that, it is the court that determines whether, on the evidence, severe emotional distress can be found; it is for the jury to determine whether, on the evidence, it has in fact existed. They aver that to prove intentional infliction of emotional distress, plaintiffs, must show they suffered severe emotional distress. Motion, 7:16-17, citing Christensen v. Superior Court (1991) 54 Cal. 3d 868, 903. Defendants refer to civil jury instructions which defines severe emotional distress as a condition which is, not mild or brief; it must be so substantial or long lasting that no reasonable person in a civilized society should be expected to bear it. Motion, 7:20-23, citing California Jury Instruction 1604. Defendants identify that courts have traditionally considered factors like intensity; duration; and psychological manifestations of emotional distress when determining severity. Motion, 7:23-8:4, citations omitted. Against any backdrop articulated by Radio, it is clear that each of the Smith Plaintiffs have suffered severe emotional distress due to the wrongful death of their co-contestant.

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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.)

Plaintiffs’ Memorandum of Points and Authorities in Opposition to Defendant Radio Roseville’s Motion for Summary Adjudication
INTRODUCTION

In their latest attempt to escape liability, the Radio Defendants ask the Court to rule that Plaintiffs Paul Smith, Steven Davis, and Mike Jones (hereinafter, “the Smith Plaintiffs” ) cannot establish an essential element of their respective claims for Intentional Infliction of Emotional Distress, i.e., severe emotional distress. Defendants mistakenly assume that because they did not adduce what Defendants consider to be “evidence of severe emotional distress,” then Plaintiffs cannot have suffered it. Not only is this position logically flawed, but by its nature finds Defendants relying almost exclusively on irrelevant facts and unsupported assumptions.

Radio’s motion is fatally flawed; it fails utterly to demonstrate the absence of material, disputed facts with respect to the severity of each Plaintiffs’ emotional injuries. Among other flaws, Defendants imply, without foundation in fact or law, that because the physical symptoms of hyponatremia faded for each within days following the contest, the Smith Plaintiffs cannot have sustained emotional harm. In fact, each Plaintiff has been diagnosed as suffering from Post Traumatic Stress Disorder, in addition to a variety of other psychological conditions ranging from anxiety, survivor guilt and water phobia to major depression. To address these issues each Plaintiff is being treated by a variety of mental health care professionals.

Even if the Court somehow found sufficient absence of triable, material facts to consider whether the burden shifts to Plaintiffs, the motion must still fall. Plaintiffs submit 45 Disputed Facts establishing that each of the Smith Plaintiffs has been clinically diagnosed with severe emotional harm, including PTSD; severe survivor guilt; severe anxiety; irrational fear; phobias; and major depression.

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

PLAINTIFFS AGREE TO DISMISS THEIR FOURTH CAUSE OF ACTION AS TO DR. XY

Plaintiffs agree to dismiss their Fourth Cause of Action for Fraud-Concealment as to defendant Dr. XY. Therefore, this court need not consider defendant’s moving papers as to this cause of action.

PLAINTIFFS HAVE PLEAD FACTS SUFFICIENT TO STATE A CAUSE OF ACTION FOR ABUSE OF A DEPENDENT ADULT

The purpose of Welfare and Institutions Code 15600 et. seq. or the Elder Abuse and Dependent Adult Civil Protection Act (EADACPA) is to protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse or custodial neglect, Delaney v. Baker (1999) 20 Cal. 4th 23, 33. The statute provides for recovery of enhanced remedies, including attorneys fees, in civil actions, for abuse of dependent adults when clear and convincing evidence proves that (1) the defendant committed physical abuse or neglect and 2) the defendant was guilty of recklessness, oppression or fraud or malice in committing this abuse or neglect.

The essential factual elements for a cause of action for physical abuse under Welf & Inst. Code §§ 15657, 15610.63 appear in the Judicial Council of California Civil Jury Instructions (2008), CACI No. 3107. In order to maintain a cause of action for abuse of a dependent adult Plaintiffs must allege and ultimately prove by clear and convincing evidence:

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

Plaintiffs’ Opposition to Dr. David XY’s Demurrer to Fourth Amended Complaint; Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES
THIS COURT LACKS JURISDICTION TO RULE ON DEFENDANTS’ DEMURRERS TO CAUSES OF ACTION ONE AND EIGHT

All Defendants in this action filed Demurrers to Plaintiffs’ Second Amended Complaint (SAC). Their moving papers included Demurrers to Plaintiffs’ First Cause of Action for Wilful Misconduct and Plaintiffs’ Eighth Cause of Action for Negligence. Hearing on the Demurrers took place on June 26, 2008, the Honorable Madeline King presiding. The court overruled all defendants’ Demurrers to plaintiffs first and eighth causes of action. A Notice of Ruling was served on all parties on June 27,2008. Defendant Dr. XY did not file an Objection to the Notice of Ruling. Plaintiffs’ respectfully request that this court take Judicial Notice under Evid Code § 452 (d) of the Notice of Ruling served by plaintiffs wherein item number 3 specifically states that all parties Demurrers to Causes of Action One and Eight were overruled. Plaintiffs further request that the court take Judicial Notice of the Minute Order from the June 26, 2008 hearing.

A. This Court Lacks Jurisdiction Under C.C.P. § 1008.
Code of Civil Procedure § 1008 forbids trial courts from reconsidering orders previously entered by the judge-either their own or those made by other judges–unless made according to this section. Bennett v. Suncloud, (1997) 56 Cal App. 91. Code of Civil Procedure § 1008 provides in part:

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