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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 trip and fall/personal injury case and its proceedings.)

ABC HOTEL IS NOT LIABLE FOR PLAINTIFF’S FALL OR HER INJURY
ABC Hotel Owed No Duty To Warn Plaintiff Of The Location Of Her And Her Companion’s Luggage In The Hotel Suite

The duty to warn extends only to those conditions (1) which are dangerous and (2) which the defendant created or which the defendant had control over and sufficient notice in advance of any accident. Ortega v. Kmart Corporation (2001) 26 Cal.4th 1200, 1212. The duty to warn does not extend to conditions which are open and obvious. Daniely v. Goldmines Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.

The Stack Of Luggage Did Not Constitute A Dangerous Condition

Slips, trips and falls “are not so likely to be the result of negligence as to justify a presumption to that effect.” Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 826; Akins v. County of Sonoma (1967) 67 Cal.2d 185, 195. It is, therefore, incumbent upon plaintiff to.prove, as an essential element of her claim, that the condition upon which she fell was dangerous or defective. Laird v. T. W. Mather, Inc. (1958) 51 Cal.2d 210, 220.

A condition is considered dangerous or defective only if it presents an unreasonable risk of harm to persons using the premises in a foreseeable manner. Akins, supra, 67 Cal.2d at 193; BAJI 8.21. In other words, a dangerous condition must be one which a person of ordinary prudence should have foreseen would appreciably enhance the risk of harm. Constance B. v. State of California (1986) 178 Cal.App.3d 200, 209.

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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 car accident/personal injury case and its proceedings.)

MIRANDA TOWING AND JACK BROWN’S TRIAL BRIEF
STATEMENT OF THE CASE

This lawsuit arises from a vehicular accident which occurred on September 21, 2004, at approximately 9:30 a.m. on the eastbound side of the 5 freeway in the city of Sacramento. The accident occurred when a Ford Ranger driven by defendant Tony Lee sideswiped a Porsche driven by plaintiff Milton White. Mr. Lee claims that he was cut off by a tow truck driven by Jack Brown which caused him to sideswipe plaintiff’s Porsche, although the tow truck did not strike either vehicle. Plaintiff has sued Mr. Lee and his employer(s): Paul Black and Universal Market Service, Inc., Mr. Brown and his employer, Miranda Towing, as defendants.

Mr. Brown is not responsible for causing the accident. The evidence shows that the subject accident was solely caused by Mr. Lee. Just prior to the collision, Mr. Brown activated his turn signal and safely moved his vehicle from the number five lane into the number four lane. Mr. Brown looked in his rear-view mirror and saw Mr. Lee’s Ford prior to making his lane change and there was plenty of room for him to move safely.

After Mr. Brown merged into the number four lane, he watched Mr. Lee’s vehicle in his rear-view mirror. Mr. Lee continued to approach the rear of Mr. Brown’s vehicle at a high rate of speed. As Mr. Lee reached the rear of Mr. Brown’s vehicle, Mr. Lee applied his brakes suddenly and swerved into the number three lane, striking plaintiff’s vehicle.

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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 trip and fall/personal injury case and its proceedings.)

When Plaintiff Judy Brown exited Macy’s store, she was walking at a normal pace, and was looking straight ahead towards the location of her parked car. She was neither looking for nor apprehending the presence of a sidewalk defect as she was walking, according to Ms. Brown’s declaration.

As a result of this accident, caused by the negligence of Defendants, Plaintiff Judy Brown suffered, inter alia, fractures of her right wrist and right knee. To date, she continues to experience significant pain and physical limitations because of these injuries.

With respect to Defendant Universal Mall’s Summary Judgment Motion, it should be noted by the court that Macy’s is also named as a defendant in this action. It has not joined Defendant Universal Mall’s Motion For Summary Judgment. Macy’s filed its answer to the complaint on or about July 23, 2009. Also, Mall Associates, the owner of the Mall, has been named as a “DOE” defendant, and service is currently being attempted on that Defendant.

In regard to Defendant Universal Mall’s motion, as explained below, there are genuine triable issues of material fact sufficient to justify this court’s denial of the motion.

ARGUMENT
A TRIABLE ISSUE OF FACT EXISTS AS TO WHETHER A TRIVIAL DEFECT CAUSED PLAINTIFF’S TRIP/FALL ACCIDENT
In support of its motion, Defendant Universal Mall argues that the sidewalk defect which caused Judy Brown to trip and fall was a trivial, one-half inch, upraised, portion of sidewalk.

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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 medical malpractice/birth injury case and its proceedings.)

The Elements That Plaintiffs Must Prove To Establish A Prima Facie Case.

In CACI No. 513, the elements for proving a wrongful life claim are virtually identical to the elements required for proving a wrongful birth claim (CACI No. 512). The wrongful life elements are as follows:

[Plaintiff] claims that [defendant physician] was negligent because [he/she] failed to inform [p]laintiff]’s parents of the risk that [he/she] would be born [genetically impaired/disabled]. To establish this claim, [plaintiff] must prove all of the following:

1. That [defendant] negligently failed to diagnose and warn [plaintiff]’s parents that their child would probably be born with a [genetic impairment/disability];
2. That [plaintiff] was born with a [genetic impairment/disability];
3. That if [plaintiff]’s parents had known of the hereditary ailment or disability, [his/her] mother would not have conceived [him/her][or would not have carried the fetus to term]; and
4. That [plaintiff] will have to pay extraordinary medical or training expenses because of [his/her][genetic impairment/disability]. (CACI No. 513.)

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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.)

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 medical malpractice/personal injury case and its proceedings.)

Defendant Has Failed to Meet His Burden of Proof, the Evidence Presented Does Not Preclude the Trier of Fact from Finding That it Was More Probable than Not That His Treatment Fell below the Standard of Care.

The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.) The standard of care in a medical malpractice case is a matter peculiarly with in the knowledge of experts. (Sinz v. Owens (1949) 33 Cal.2d 749, 753.) Thus, expert testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care [citation] unless the negligence is obvious to a layperson. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523.)

To be entitled to summary judgment in his favor, Dr. Lee is required to present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that his treatment fell below the standard of care. (Johnson v. Superior Court (2006) 143 Cal.App.4th 297,305.) Dr. Lee has failed to present any such evidence. In support of his motion Dr. Lee submitted a declaration from vascular surgeon Robert White, M.D. However, Dr. White’s declaration fails to provide any factual basis or explanation for his opinions. Pursuant to Kelley v. Trunk, an expert declaration must provide more than just the ultimate conclusion. (Kelley v. Trunk, supra, 66 Cal.App.4th at p. 524.)

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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 slip and fall/personal injury case and its proceedings.)

STATEMENT OF FACTS

On Saturday, September 2, 2005, plaintiff and her husband flew into town with another couple to celebrate plaintiff’s 40th birthday. The two couples planned to share a suite for one night at the ABC Hotel. Upon their arrival at the Hotel, they had some food and alcohol at a Hotel bar and went swimming while they waited for their room.

Later that afternoon, the four arrived at their suite. The hotel suite is a bright room, well illuminated by natural light from large picture windows and bright decor comprised of white couches, white carrera marble table tops on bright turquoise table bases, light gray and white walls, and grey carpeting to better reflect the light. Their collective luggage was transported by a bellhop, who placed the luggage in the suite. In total, there were seven or eight pieces of luggage, all of them black in color.

Based on the collective deposition testimony, plaintiff and her companions brought the following luggage: (1) plaintiff brought a duffle bag; (2) Mark Smith brought a garment bag, computer bag, and his wife’s breast pump bag; and (3) Alice and Randy Chin each brought a roller bag with an accompanying duffle bag.

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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 brain injury/automobile accident case and its proceedings.)

ITEMIZED LIST OF CLAIMED DAMAGES
MEDICAL SPECIALS TO DATE
(1) University Neuropsychology Group $ 5,500.00
(2) Suzanne Perry, Ph.D. (approx.) $ 5,000.00
(3) Medical Center $ 2,253.90
(4) Beverly Tower Imaging $ 3,055.00
(5) Michael Lee, D.C. $ 3,230.00
(6) Donna Green, M.D. $ 1,225.00
(7) Robert James, M.D. $ 1,950.00
(8) The Massage Place $ 994.00
(9) Joan John, M.D. $ 7,000.00
(10) A.U.D. (Audiology) $ 1,000.00
(11) Tim Jones, M.D. $ 550.00
(12) Matrix Group $ 775.00
(13) XYZ Hospital $ 1,646.00
TOTAL: $34,178.90
FUTURE MEDICAL SPECIALS
(Approx.) $50,000.00
LOSS OF EARNINGS
(1) Loss of Earnings to Date: $ 170,000.00
(2) Future Loss of Earnings: $ 500,000.00
STATUS OF SETTLEMENT NEGOTIATIONS

The parties have had two sessions of mediation with a mediator from ADR Services. Plaintiff’s lowest demand was $500,000.00,: Defendant’s highest offer was $50,000.00.

Defendant Brown is covered by a $500,000.00 automobile insurance policy. Plaintiff had tendered a statutory offer to settle for the policy limits back in September 4, 2008. In turn, Mr. Brown tendered a statutory offer to settle for $50,000.00.

Plaintiff next tendered a statutory offer to settle for $250,000.00 on December 4, 2008. That offer has expired and in light of the significant ongoing difficulties plaintiff has suffered, her demand was once again for the full policy limits. That renewed offer to settle for the policy limits has expired.

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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 medical malpractice/personal injury case and its proceedings.)

CAUSATION

As discussed above, the type of injuries suffered by plaintiff do not occur in the absence of negligence. It is undisputed, even by defendants own experts that one, some, or all, of the defendants caused plaintiff’s injuries. Dr. Stanley Kim, who was retained by Dr. Green testified at deposition:

Q: So more probable than not that an instrumentality under the exclusive control of Dr. Green, Dr. Smith, Dr. Lee or Dr. Stuart caused the injury to the bifurcation of the aorta, correct?

A: Yes.

DR. GREEN

Dr. Green’s placement of the first trocar or Veres needle during the initial surgery caused multiple vascular injuries, including a laceration to the left iliac vein, a laceration to the mesentery and small bowel. Dr. Green was below the standard of care in causing these injuries.

Dr. Kim, Dr. Green’s retained expert, testified these injuries are not suppose to happen.

Q: you’re not suppose to injure the vein, are you?
A:. No.
Q: You’re not suppose to injure the mesentery, correct?
A: No. That’s not the intent of the operation.
Q: And you’re not suppose to injure the bowel correct?

A: That’s correct.

The same response was given for the injuries to the mesentery and the bowel.

Dr. Kim confirmed these injuries were caused by Dr. Greenu’s placement ent of the trocar
Q: Tell me how the vein injury was caused.
A: Most likely be the insertion of the trocar.

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The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.

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

The Simmons court eloquently stated its rationale behind its holding: Under the facts of this case, we declined to establish a more lenient standard of causation. To do so, would be contrary to sound logic, legal precedent and public policy. It would unwisely encourage costly and unreasonable over-testing and over-treatment for defensive purposes. Physicians would find it necessary to place the requirements of the legal system before the need and the finances of the patient. In addition, the physicians’ increased exposure to liability would adversely impact already high medical malpractice premiums, resulting in an upward spiral of consumer costs. The uncertainty fostered by such a ruling would undoubtedly open the proverbial flood gates of our overburdened judicial system. Id. at 705-706.

Likewise, in Jennings v. Palomar (2003) 114 Cal.App.4th 1108, the Court held that proof that a negligent act was a substantial factor in causing the injury to plaintiff did not relieve plaintiff from the burden of proving defendant’s negligence was the cause-in-fact of plaintiff’s injury. Therefore, although Plaintiff need not eliminate any possibility that Defendants’ conduct was not a cause of Plaintiff’s injury, she must introduce evidence from which reasonable people may conclude that it is more probable than not that the her alleged injury of Complex Regional Pain Syndrome was caused by the Defendants.

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