Personal Injury Lawyer Blog

Sacramento Restaurant Served Minors Before Fatal Car Accident, Part 3 of 8

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 automobile accident/personal injury case and its proceedings.)

THERE EXISTED A SPECIAL RELATIONSHIP BETWEEN THE GREENES AND PLAINTIFF AND PLAINTIFF’S FIRST AND SECOND CAUSES OF ACTION FOR NEGLIGENCE AND NEGLIGENT SUPERVISION-SPECIAL RELATIONSHIP ARE DISTINGUISHED FROM THE CASE AND STATUTORY LANGUAGE OF BUSINESS & PROFESSIONS CODE 25602.1 THAT DEFENDANTS HAVE CITED

Actionable negligence involves a breach of a legal duty of care that proximately causes injury. Because there existed a special relationship between the Greenes and Plaintiff Paul Verano, age 14 at the time of this tragic car accident— their promise to “be there” for him and his reliance on the expectation that they would protect, control and supervise him on the night and early morning of December 19, 20, 2006, they are liable for Plaintiff’s injuries based upon the affirmative duties arising from this “special relationship.” (cf.Andrews v. Wells supra, 204 Cal.App.3d at 541.)

Defendants contend that that Plaintiff’s First and Second Causes of Action for Negligence and Negligent Supervision are barred by Business and Professions Code Secs. 25602, 25602.1, because the Greenes are not “licensed purveyors of alcohol” and were only patrons in El Mexicano Restaurant when some alcohol was consumed by Smith at some point after he was obviously intoxicated before the accident occurred. Defendants claim that they had no legal duty of care and are immune from liability pursuant to Civ. Code Sec. 1714, B & P Code Sec. 25602.1 for Plaintiff’s injuries that occurred because they allowed Plaintiff to get into a vehicle driven by Smith, a drunk driver, who crashed his vehicle into a tree, killing himself, two passengers and severely injuring Plaintiff.

Wrongful Death Suit Filed In Sacramento-Area Radio Contest, Part 5 of 6

October 12, 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.)

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.

Theme Park Ride Results In Wrongful Death Of Sacramento Woman, Part 2 of 10

October 11, 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.)

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.

Sacramento Woman Dies At Amusement Park, Part 1 of 10

October 10, 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.)

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.

Sacramento Radio Contestants Suffer Psychological Injuries, Part 4 of 6

October 10, 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.)

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.”

Pervasive Workplace Harassment Results In Pregnancy Complications For Sacramento Employee, Part 19 of 19

October 9, 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 workplace discrimination/sex harassment case and its proceedings.)

iii. The harassment was severe and pervasive, The harassing conduct by Plaintiff’s supervisor is severe and pervasive enough to alter the terms and conditions of employment. There is a different standard applied with the harassment comes from a supervisor. When it is a supervisor, a hostile work environment can be created by one singular remark. Dee v. Vintage Petroleum. Inc., (2003) 106 Cal. App. 4th 30. Further, repeated use of profanity against an employee, in conjunction with even one remark about the protected class by a supervisor gives rise to a hostile work environment claim. Id. at 35-37. As set forth above, over the course of a few days she was repeatedly attacked, yelled at, cursed at, and numerous comments were made directly about her pregnancy. Because of the comments she became stressed out, developed cramps and bleeding and had to go on bed rest on two separate occasions.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER PUNITIVE DAMAGE CLAIMS

Evidence that a defendant acted with discriminatory intent and evidence of pretext provide sufficient basis to find that defendants acted with malice and oppression. Cloud v. Casey, (1999) 76 Cal.App.4th 895, 911. Further, evidence that a defendant tried to cover up the illegal reason with a false explanation also supports a finding of malice and oppression. Id. at 911. In other words, the same evidence that Plaintiff was fired in retaliation for her complaints of harassment/accommodation requests and because of her pregnancy is ample evidence to show malice and oppression. Plaintiff incorporates sections B & C where she lays out the retaliation and discrimination claims including all the pretext to support each claim.

DUI Car Accident Injures Sacramento Teen, Part 2 of 8

October 8, 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.)

PROCEDURAL HISTORY

Plaintiff filed a lawsuit on May 1, 2007, against the Estate of Danny Smith and Richard Smith, Case No. SC2007-09, which resulted in a settlement and this Court approved Plaintiff’s Petition to Compromise a Disputed Claim on February 29, 2008. During the course of litigation in that case facts became evident that Danny Smith, a minor, was “obviously intoxicated” at El Mexicano Restaurant and served alcoholic beverages – beer and Tequila shots, throughout the evening before and the early morning of the fatal car crash. There are three other related cases that were ordered consolidated by this Court February 23, 2009.

El Mexicano was fictitiously named as Doe 1 February 13, 2008. Plaintiff filed and served a FAC on Defendant El Mexicano, which it answered on June 17, 2008. El Mexicano does not dispute that it violated Business & Professions Code Sec. 25602.1 and has already reached settlements with some of the Plaintiff’s. Plaintiff Verano’s FAC was served on Robert Greene, Doe 2 and Stacy Greene, Doe 3. Defendants demurred to Plaintiff’s FAC, and the hearing on demurrer was held April 3,2009. Plaintiff was allowed to amend his complaint and served his TAC on Defendants. A trial date has been set for November 30, 2009.

PLAINTIFF SHOULD BE ALLOWED TO FILE HIS THIRD AMENDED COMPLAINT. THIS IS BECAUSE PLAINTIFF’S POSITION IS STRONGLY SUPPORTED BY PUBLIC POLICY INTERPRETED TO ALLOW TIMELY AMENDMENTS TO PLEADINGS (C.C.P. SEC. 473) AND THE TAC SATISFIES THE REQUIREMENTS OF THE RELATION BACK DOCTRINE
First, there is strong public policy that allows a party to amend any pleading so that they may litigate cases on their merits. (Code of Civil Procedure Sec. 473.)

Sacramento Employer Subjects Pregnant Employee To Uninvited Harassment, Part 18 of 19

October 7, 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 workplace discrimination/sex harassment case and its proceedings.)

i. Unwanted harassment because of her pregnancy/disability: Plaintiff was subject to abusive conduct because of her pregnancy. Verbal harassment by itself can support a hostile work environment claim. Lipsett v. University of Puerto Rico, (1st Cir. 1988) 864 F.2d 881, 905. Numerous negative comments were made about her pregnancy by Mr. Davis and Mr. Chan. Including: 1) Telling her multiple times (at least 10 times) that she is not wanted there because she is pregnant and she should either quit or go on disability, 2) Yelling that if she can’t handle the job she should quit or go on disability, 3) saying that pregnant women have hormones and attitudes and she should quit or go on disability, 4) disciplining her for talking about her pregnancy, 5) telling her she cannot ask others to help her lift heavy items when her doctor told her not to do so because of her pregnancy, 6) calling her in the office 7 times to change a T-shirt that is fine to begin with, 7) telling her she cannot work unless her note is clearer when it was clear to begin with, 8) laughing at her over her complaints of harassment, 9) cursing at her (shit and fuck), 10) telling her that she is a bad person and 11) suspending her for wanting to go to the doctor. A hostile work environment can also be found when employees engage in forms of intimidation. Birschetein v. New United Motor Mfg., Inc., (2001) 92 Cal. App. 4th 994, 1001-1002[FN1]. As stated above, much of the harassment was intimidation over Plaintiff’s job including yelling and swearing.

Three Sacramento Males Severely Injured In Fatal Radio Contest, Part 3 of 6

October 7, 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.)

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.

Hostile Work Environment Leads To Lawsuit By Pregnant Sacramento Employee, Part 17 of 19

October 5, 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 workplace discrimination/sex harassment case and its proceedings.)

iii. The termination reasons are false which establishes pretext as well

Pretext can be shown by showing the termination reasons are not true. University of So. Calif, v. Sup. Ct., 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.

iv. Failure to follow its own policies is evidence of pretext

Defendant’s failure to follow its policy is evidence of pretext. Hill, 855 F.2d at 811; Christine, 785 F.2d at 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff’s claims of harassment. Mr. Davis never did anything to investigate Plaintiff’s claims of harassment after she claimed she was harassed. He did not follow any of the steps including documenting, talking with Plaintiff, getting a written statement from Plaintiff, reporting the results to Plaintiff or telling Team Member Services of the complaints. All of which was required to do under the policies.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER HARASSMENT CLAIMS (CLAIMS 5, 6, 9 & 10)

PREGNANCY/DISABILITY HARASSMENT IS UNLAWFUL AND WHEN THE HARASSMENT IS DONE BY A SUPERVISOR THE AMOUNT OF HARASSMENT NEED TO BE ACTIONABLE IS MUCH LESS

Under the Fair Employment and Housing Act ( FEHA ), it is unlawful for any person or employer to harass an employee based on that employee’s pregnancy or disability. Cal. Govt. Code § 12940(j)(1). Under FEHA, an employer is strictly liable for workplace harassment by a supervisor. State Dept. of Health Services v. Sup. Ct., (2003) 31 Cal. 4th 1026, 1042.