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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 bus accident/personal injury case and its proceedings.)

Plaintiff Molly Chance moves this court to vacate judgment in this matter and order a new trial under C.C.P. section 657.

INTRODUCTION

Following five days of testimony, a jury rushed to verdict within minutes of electing a foreperson. Despite sworn testimony of all four non-party eyewitnesses clearly seeing Plaintiff Molly Chance ( Chance ) before being struck by a bus, a jury found Defendant’s employee, Paul Davie ( Davie ) who had a closer and less obstructed view than any of the other witnesses, not negligent in failing to see Chance either before or while making a left turn consequently hitting her with his employer’s bus. As will be discussed in the following points and authorities, this travesty of justice was the product of jury misconduct motivated by extreme prejudice fomented against Chance by objected, inflammatory, irrelevant and otherwise inadmissible evidence.

In contravention of the court’s instructions, there was no deliberation concerning the law and evidence that addressed Davie’s duties and conduct. Only the jurors’ collective recall of an investigating traffic police officer’s unfounded opinion that Chance was jaywalking when struck by defendant’s bus was deliberated. Already biased against Chance due to irrelevant and prejudicial evidence of a ten-year-old accident, the policeman’s opinion was enough for a majority of the jurors to place all the responsibility for the incident on her In the interest of serving justice, this verdict should be set aside and a new trial ordered. (See Part 2 of 13.)

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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.)

LIABILITY ISSUES

BAJI 6.11 provides that a physician has a duty to disclose to the patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment BAJI further provides that when a procedure inherently involves a known risk of death or serious bodily harm, the physician has a duty to disclose to the patient the possibility of such an outcome and to explain, in lay terms, the complications that might possibly occur. Plaintiffs allege that did not occur in this medical malpractice case.

Ms. Green and her husband met with Dr. Smith on several occasions. Ms. Green alleges that she told him that she would not have surgery if anything could happen to her left leg. She also alleges that on several occasions, Dr. Smith promised her that nothing would happen to her left leg.

Dr. Smith planned a complicated front and back surgery with installation of rods and screws. Plaintiff suffered from diabetes and had a risk of artery disease and infection. Both complications occurred during or after the July 22, 2002 surgery. A vascular repair of the occluded artery did not work. Plaintiff’s leg lost oxygen for so long that she suffered neurological damage that rendered her leg useless.

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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 dog bite/personal injury case and its proceedings.)

THE RESPONSE PROVIDED BY THE COURT TO JURY QUESTION #1 WAS MISLEADING AND DID NOT ADDRESS THE SPECIFIC QUESTION POSED BY THE JURY.

The jury in question #1 asked whether “time of length of stay” is a factor? This points to defendant Topp allowing the dog to enter her property.

Rather than the court indicating that this cause of action is governed by strict liability and that that under strict liability time is not a factor, and that it does not matter how many times, or for what period of time that the activity lasted, the court cited to an abstract principle regarding the definition of keeper or controller referenced in the case of Buffington v. Nicholson (1947) 78 Cal. App.2d37,42. This case, which was decided before the enactment of the strict liability statute that governs dangerous domestic animals does not specifically address the issue of time or length of stay. In fact, the Buffington definition refers to the concept that a casual presence [of a dangerous domestic animal] does not constitute a keeper. This definition in Buffington does not take into account the legislature’s intent to make the harboring of a dangerous domestic animal subject to strict liability,
The theory of strict liability stands for the concept that if you engaged in the activity once, twice, five times or for one second, one minute, one hour, one day, etc… you are strictly liable if you knew or should have known that the dog was vicious and the dog causes harm to another person. The concept is directly analogous to other strict liability statutes such as engaging in ultra hazardous activities (i.e., blasting, explosives) because it does not matter if you engage in the activity for one second, one minute, one hour, one day etc.., the moment you engage in the activity strict liability attaches. The same is true with a dangerous domestic animal. Time or length of stay does not matter.

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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 sexual harassment/personal injury case and its proceedings.)

Plaintiffs Jim Green, John Brown, Stan White, and Paul Jones hereby oppose defendants’ Motion in Limine No. 12 To Exclude Evidence, Testimony and Argument Regarding the Expert Opinion Testimony of Plaintiffs’ Expert Michael Black.

BECAUSE EXPERT OPINION REGARDING PLAINTIFFS’ SEXUAL HARASSMENT CAUSES OF ACTION WOULD ASSIST THE TRIER OF FACT, MICHAEL BLACK’S TESTIMONY IS RELEVANT AND ADMISSIBLE IN THIS CASE.

Standards of Relevance and Admissibility.

No evidence is admissible except relevant evidence. Evid. Code § 350. Except as otherwise provided by statute, all relevant evidence is admissible. Evid. Code § 351.

Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. Evid. Code § 210.

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Evid. Code § 352.

There are three distinct requirements for admissibility of expert opinion testimony in this personal injury matter:
The subject matter must be sufficiently beyond common experience that the opinion would assist the jury;

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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 automobile accident/personal injury case and its proceedings.)

DeBolt v. Kragen Auto Supply, Inc. 182 Cal.App.3d 269 (1986) involved a host (Kragen Auto Supply) of a beach party who supplied and served a minor alcoholic beverages to the point where the minor became intoxicated and disorderly. Kragen ordered the minor to leave the party, but took no affirmative action to provide any alternative or safer means of transportation for her, so the minor drove her own car, ultimately plowing into a motorcycle killing two people. The Court of Appeal determined that Kragen was a social host and was immune from liability under Civ. Code Sec. 1714, B & P Code Secs.25602 and 25602.1. Kragen had no “special relationship” with any of the minors as did the Greenes in the present case.

Cory v. Shierloh, 29 Cal.3d 430 (1981), again a social host, furnished Plaintiff with alcoholic beverages, but the Court held that plaintiff’s injuries were the result of her own intoxication. This case is clearly distinguishable as Plaintiff’s injuries were not a result of his own intoxication but as a result of the Greenes breaching their duty of due care based upon their “special relationship” and allowing him to ride home with a drunk driver.

Chalup v. Aspen Mine Co. 175 Cal.App.3d 973 (1985), where an 18 year old became intoxicated in a restaurant and when she left she ran across the street against a traffic signal into the path of a car. The Defendant in this case was a licensed purveyor of alcohol, but the Court held that the injured minor who buys liquor while she is obviously intoxicated may state a cause of action under B & P Code Sec.25602.1. Again, this case is clearly distinguishable from the present case as the Greenes failed to protect Paul from riding home with a drunk driver, as was their duty of due care based upon their “special relationship” with him. It did not involve the sale of alcohol to 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 dog bite/personal injury case and its proceedings.)

IT WAS AN ERROR OF LAW FOR THE COURT TO GRANT DEFENDANT’S MOTION FOR NON-SUIT ON THE PREMISES LIABILITY CAUSE OF ACTION AGAINST THE DEFENDANT DURING THE PENDENCY OF THE TRIAL.

Plaintiff alleged in her complaint that the defendant Topp was liable under the theory of premises liability. Prior to commencement of the trial, the court read a statement of the case that referenced plaintiff’s premises liability claim against the defendant as well as the strict liability cause of action for dog bites. Prior to opening statement, plaintiff’s counsel sought and obtained this court’s permission to address all of the causes of action separately, including, but not limited to, premises liability to the jury in opening statement.

Then, as plaintiff’s counsel was beginning to explain all three causes of action to the jury in opening statement, the court interjected and stated You can’t talk about that . And although plaintiff’s counsel inquired of the court as to the permission it had earlier granted to address all three causes of action individually, the court replied that further discussion of the distinct causes of action against the defendant Topp were not going to be permitted.

Essentially, the jury was prevented from any further explanation in opening statement about the causes of action other than what the court allowed prior to it interjecting. The court interjecting would not have had any adverse effect of the plaintiff’s ability to establish its case under the theory of premises liability, nor have constituted an error of law, except for the fact that the court then granted defendant’s motion for non-suit on the premises liability cause of action for inadequately addressing the cause of action in opening statement .

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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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