Personal Injury Lawyer Blog

Suit Filed For Wrongful Death Of Sacramento Woman At Theme Park, Part 6 of 10

October 16, 2009 | by Moseley Collins

(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.

Sacramento Family Loses Children In Fatal DUI Car Accident, Part 4 of 8

October 16, 2009 | by Moseley Collins

(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.)

The only case the Greenes have cited in opposition to Plaintiff’s Second Cause of Action- special relationship is Elizarraras v. L.A. Private Security Services, Inc. (108 Cal.App.4th 237 (2003)) (L.A. Private Security Services, Inc. was hired by a restaurant as security guards and their job responsibility did not include preventing patrons from drinking and driving, thus they had no special duty of care to prevent minors from consuming alcoholic beverages as its job responsibility is not equivalent to a legal duty of care to underage patrons to prevent them from drinking or driving while intoxicated ).

Defendants’ demurrer contains pages of boilerplate information about the legislative history, definitions and interpretation of the 1978 amendments to Civ. Code Sec. 1714 and B & P Code Secs.25602 and 25602.1. Although this historical information may be interesting, it does not relate to the particular facts alleged in Plaintiff’s TAC, the First and Second Causes of Action and the special relationship that existed between the Greenes and Paul.

Defendants’ reliance on these cases is misguided and can be distinguished both factually and legally. Defendant El Mexicano does not dispute liability for serving alcohol to an obviously intoxicated minor, specifically Danny Smith, age 18, the evening of December 19 and early morning of December 20, 2006 in violation of B & P Sec.25602.1.

Woman From Sacramento Suffers Traumatic Brain Injury At Amusement Park, Part 5 of 10

October 15, 2009 | by Moseley Collins

(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.

Sacramento Woman Viciously Bitten By A Dog, Part 1 of 8

October 15, 2009 | by Moseley Collins

(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.)

Plaintiff SANDY WHITE (“White”) will move this Court for an Order granting a New Trial/ JNOV against Defendant DIANA TOPP (“Topp”) pursuant to sections 629, 657 and 662.5 of the Code of Civil Procedure on the following grounds:

1. The court, as a matter of law, made an error in of law in granting defendant’s motion for non-suit related to plaintiff’s premises liability cause of action (during the pendency of the trial; and
2. That the court instruction to jury question #1 was misleading and did not specifically address the question posed by the jury; and

3. The preponderance of the evidence clearly indicated that the jury should have reached a different result regarding the strict liability of the defendant in this action.

POINTS AND AUTHORITIES
STATEMENT OF FACTS
This case is about a dog bite incident, which occurred on or about April 13, 2007. Plaintiff, Sandy White, was walking her dog on a leash at approximately seven p.m.. While walking on the sidewalk of defendant’s premises located on Maddox Dr., Sacramento, CA, defendant’s dog suddenly attacked plaintiff twice knocking her to the ground. As a result of the attack, plaintiff, Sandy White sustained injuries to her upper right arm, right hand, left ankle, permanent scarring and disfigurement. The defendants are claiming that the dog that caused the injuries to plaintiff wasn’t their dog and it had never been to defendant’s property before the date of the incident, and therefore they are not responsible for the injuries sustained by the plaintiff.

Deadly Sacramento-Area Amusement Park Ride Results In Traumatic Brain Injury, Part 4 of 10

October 14, 2009 | by Moseley Collins

(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.)

Sacramento Parents Sue Physician For Daughter’s Birth Injuries, Part 1 of 3

October 14, 2009 | by Moseley Collins

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

PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN RESPONSE TO DEFENDANTS’ DEMURRER
INTRODUCTION

This is a medical malpractice action brought by plaintiffs Donna Smith and Peter Smith, the parents of their infant child Amanda Smith for medical malpractice arising out of the delivery and birth of Amanda. The negligence occurred as a result of the delivering doctor, Kenneth Brown, M.D. and Universal Hospital failure to administer antibiotics prior to delivery knowing that mother, Donna Smith was Group B Strep Positive. As a result of this negligence the virus was passed to the child and resulted in sepsis which required the child to be admitted to Neonatal Intensive Care Unit for 6 days.

The Plaintiffs filed a complaint for medical negligence and negligent infliction of emotional distress with this court on August 12, 2004. The Defendant Universal Hospital provided an answer on October 1, 2004. The Defendant Kenneth Brown, M.D., has responded with this demurrer claiming the parents Peter Smith and Donna Smith do not fit the criteria to recovery as under the bystander theory . Specifically the demurrer is based on the plaintiff-parents failure to satisfy the second prong of the three part test established in Thing v. La Chusa (1989) 48 Cal.3d 644.

PLAINTIFFS’ ACTION IS PREMISED ON A DIRECT VICTIM RATIONALE AND NOT BASED ON A BYSTANDER THEORY
Plaintiff-parents Peter Smith and Donna Smith assert that their right to bring a negligence action on a contractual direct victim rationale and not based on a bystander theory. A physician-patient contract existed between the parents and the defendant obstetrician with an end and aim of the birth of a healthy child and a normal reproductive experience for the parents.

Sacramento Woman Left Disabled After Medical Malpractice, Part 1 of 4

October 13, 2009 | by Moseley Collins

(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.)

PLAINTIFF’S TRIAL BRIEF
NATURE OF ACTION

This is a medical malpractice against Stan Smith, M.D., and his employer, the Universal Hospital. Plaintiff, Joan Green, alleges that negligent informed consent led her to undergo a back surgery in July 2002, and that complications therefrom left plaintiff completely disabled.

PARTIES AND COUNSEL

Plaintiff, Joan Green, is a 65-year-old resident of Sacramento, who suffered a right leg amputation following an accident in 1986. Plaintiff, Bobby Green, is her husband, who is seeking loss of consortium damages. They are represented by Tim Brown, Attorney at Law.

Defendant, XYZ Corp. operates the Universal Hospital (UH). Defendant, Stan Smith, M.D., is employed as a physician and professor by the UH Medical Center. Defendants are represented by David Brown, Attorney at Law.

FACTUAL BACKGROUND

Joan Green is a married Caucasian woman who was born on XX/XX/1944. Her health was good until 1986 when she was in a pedestrian versus truck accident that almost killed her. She suffered a right leg above the knee amputation, a degloving of her right arm, and other injuries. Her left leg was broken, but healed. After recovering, she was able to drive and do many household activities using her left leg. She used her wheelchair much of the time, but in 2002, she was finally fitted with a usable prostheses. However, she did have significant low back pain, diabetes, Krohns disease, and had been a smoker for 30 years until 2001. Her physician in Sacramento suggested a consult with an orthopedic surgeon at UH. An appointment was made with Stan Smith, MD.

Sacramento Teen Suffers Traumatic Brain Injury, Part 1 of 7

October 13, 2009 | by Moseley Collins

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

PLAINTIFF’S TRIAL BRIEF
INTRODUCTION & FACTUAL BACKGROUND

On November 2, 2005, at 11:35 a.m., 14-year-old Paul Martin was a passenger with his mother Sherrie while driving eastbound on California State Route 40 in Sacramento. The Plaintiffs made a lawful left turn at White Road where they were violently struck by a California Gas Company truck driven by Dan Brown which ran through a solid red light. Paul Martin suffered life threatening injuries including a severe traumatic brain injury that has permanently disabled him.

PARTIES
Plaintiffs:

Paul Martin was an active fourteen-year-old boy at the time of the collision. He was in the eighth grade at Sacramento Junior High School and enjoyed riding dirt bikes, skateboarding, building and repairing bicycles, drawing, and playing basketball. Prior to the collision Paul had been a below-average student, but had recently found success with an independent studies program in which he received mostly A’s and B’s. After suffering a moderate to severe traumatic brain injury, Paul’s entire life has changed. His ability to process information, memory, ability to communicate, and motor skills are now drastically diminished. Paul’s personality has completely changed, he is depressed, lacks ambition, and he can no longer engage in many of the activities he used to enjoy. As a result of the impact of the collision, Paul has a large 6″ scar on the back of his head, a drooping left eye, and partial facial palsy.

Sherrie Martin escaped the collision with only soft-tissue injuries.

Sacramento Men Suffer Severe Emotional Injuries From Deadly Radio Contest, Part 6 of 6

October 13, 2009 | by Moseley Collins

(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.

Woman Sues Sacramento-Area Theme Park Over Deadly Ride, Part 3 of 10

October 13, 2009 | by Moseley Collins

(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: