Personal Injury Lawyer Blog

Yolo Emergency Workers Use Bus Crash Drill To Better Prepare

May 30, 2009 | by Moseley Collins

In an effort to be better prepared for an actual bus crash emergency, Yolo County emergency personnel used .

Rumsey Rancheria firefighter Joseph Perez yelled, asking if anyone inside an overturned bus could hear him. As instructed, the 20 Esparto High School students played their roles as victims of a bus crash well. Some moaned, some whimpered for help, and a few who only had minor “injuries” walked out. Heather Lopez, 15, slumped over a cracked and “blood”-stained window, pretended to be lifeless. Mock injuries on the teenagers’ faces, parts of their bodies and clothes made it look like they were bleeding.

Saturday’s simulated exercise comes at the heels of a spate of high-profile bus crashes in the past year and bears many similarities to the one that killed 10 people near Williams in October.

The real-life deadly crash took place on a small farm road, with a chartered bus bound for Colusa Casino Resort carrying mostly Hmong-speaking elderly residents from the Sacramento area.

Saturday’s mock exercise took place along rural Highway 16 in Yolo County, near Cache Creek Casino Resort.

During a briefing before the drill, Rumsey Rancheria Fire Chief Michael Chandler said many lessons were learned from the fatal crash.

“One of the problems was who are our patients and where do they go?” Chandler said.

A review of the deadly crash showed failure in a communication system led to troubled transits for helicopters carrying patients. One had to hover over UC Davis Medical Center in Sacramento, low on fuel, because the helipad was full. Meanwhile, the paramedic coordinating transport at the scene wasn’t aware that Sutter Roseville and Mercy San Juan medical centers had helipads.

On Saturday, nurse Joaquin Franz said the agencies practiced using an electronic system that informs users of the load that each hospital can manage during a mass-casualty incident.

Racially Offensive Environment Leads To Lawsuit By West Sacramento Workers, Part 12 of 18

May 30, 2009 | by Moseley Collins

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

f) Defendant Paul Smith did not utter any similar sexually and/or racially offensive words at the non-Latina workers and did not perform any same or similar acts to the non-Latina workers.
g) During the course of Green’s employment at UCC, Defendant Paul Smith persistently demanded a romantic and sexual relationship with Plaintiff Patricia Green. Green repeatedly rejected Paul Smith’s demands.
h) Thereafter, Defendant David Smith spoke with Brown and demanded that Brown provide to David Smith private details and private information concerning the personal and intimate life of Plaintiff Patricia Green.
i) Brown only informed David Smith that Plaintiff Patricia Green was dating Plaintiff White, but otherwise refused to divulge any information concerning Plaintiff Patricia Green.
j) After daily sexual harassment from Defendant Paul Smith, Plaintiff Green refused to continue to work in such an abusive environment and considered herself constructively discharged and quit her employment.
72. All times herein mentioned, Defendants Paul Smith and David Smith daily maintained a pattern and practice of unlawful workplace racial discrimination and harassment against Latino and Latina plant floor workers, including Plaintiff, consisting of racial insults and racially offensive remarks, including:
– Mother fucking Mexican
– Ignorant Mexicans
– Hurry up motherfucker
– Lazy Mexican
– Fucking Mexican
– Wet back
– Fucking wet backs
– Stupid Mexican
– Mexicans are ignorant

Child Suffers Permanent Brain Damage At Sacramento-area Hospital, Part 8 of 9

May 29, 2009 | by Moseley Collins

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

THE ISSUE OF VERDICT BASED ON INSUFFICIENT EVIDENCE

The Defendants’ Memorandum of Points and Authorities in Support of Motion for New Trial contends that there was insufficient evidence to support the jury’s verdict in favor of plaintiffs. Defendants’ motion is based upon little more than argument of counsel and not the evidence considered by the jury in this matter. This alone is reason to deny defendants’ motion. However, as this court is well aware, the evidence introduced at trial is more than sufficient to support the jury’s verdict.

California Code of Civil Procedure, Section 657 states, in part:

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences there from, that the court or jury clearly should have reached a different verdict or decision.

In deciding a motion for new trial based upon insufficiency of the evidence, the court’s function is to determine whether…there is sufficient credible evidence to support the verdict. Zurian v. Wahl Shoe Company, Inc., (1994) 22 Cal. 4th 397, citing People v. Robarge, (1953) 41 Cal. 2d 628, 633.

In ruling on a motion for new trial based upon insufficiency of the evidence, the trial court should not disregard the verdict or decide what results should have been reached if the case had been tried without a jury. Dominguez v. Pantalone, (1989) 212 Cal.App.3d 201, 215.

Injured Sacramento-area Driver Files Suit Against Defendant’s Employer, Part 13 of 14

May 29, 2009 | by Moseley Collins

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

Further, personal acts that are “necessary to the comfort, convenience, health, and welfare of the employee while at work” are minor deviations and do not take the employee out of the course and scope of employment. O’Connor v. McDonald’s Restaurants (1990) 220 Cal. App. 3d 25, 30.
For example, in Lazar v. Thermal Equipment (1983) 148 Cal. App. 3d 458, 466-467, the court held that an employee’s decision to stop at a grocery store on the way home from work, even though the store was in the opposite direction than his normal route home, did not remove him from the course and scope of his employment. The court further held the detour was foreseeable because the employee was using a company vehicle to complete his work.

The Lazar court went on to say:

It is the established rule in this jurisdiction that where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when the third person was injured…” (Lazar, supra, at pp. 467-468.)

IV. DEFENDANT’S RELIANCE ON SUNDERLAND v. LOCKHEED IS MISPLACED
In its argument that Nancy Smythe was not in the scope of her employment with
ABC at the time of the collision, defendant relies exclusively on the decision of Sunderland v.
Lockheed (2005) 130 CA4th 1. Defendant’s reliance on Sunderland, supra, is misplaced, and
is easily distinguished from the case at bar.

OB/GYN’s Negligence Causes Birth Injury To El Dorado Woman’s Baby, Part 5 of 8

May 28, 2009 | by Moseley Collins

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

Thus, … the failure by Burgess to satisfy the criteria for recovery under Thing, … does not end the inquiry. The alleged negligent actions resulting in physical harm to Joseph [the minor] breached a duty owed to both Joseph and Burgess. Burgess was unavoidably and unquestionably harmed by this negligent conduct. (Emphasis and brackets added.) (Burgess, supra, 2 Cal.4th at p. 1076-1077.)

The above analysis was recently affirmed in Zavala v. Arce (1997) 58 Cal.App.4th 915, decided October 27, 1997. In Zavala, the fetus was stillborn; yet, the mother could still allege her own action for direct victim emotional distress. Zavala cited Burgess were the baby was born alive – as in the present case – and died after birth; in both circumstances, the mother can allege emotional distress: Our Supreme Court has held in a factually similar case that when an obstetrician and a pregnant woman enter into a physician-patient relationship … the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus. (Zavala, supra, 58 Cal.App. 4th at p. 928.)

Whether the baby survives birth or dies after is immaterial to the emotional distress claim of the mother:
The fact that the baby in Burgess survived the injuries caused by the obstetric negligence during delivery was immaterial to the determination of whether the obstetrician owed a duty of care to the mother. The Supreme Court in Burgess reasoned that … the obstetrician and the pregnant woman [who] enter into a physician-patient relationship … understand that the physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus, and [a]ny emotional anguish to the mother, therefore breaches a duty owed directly to the mother. (Burgess v. Superior Court, supra, 2 Cal.4th at p. 1076.) (Emotional distress.) (Zavala, supra, 58 Cal.App. 4th at p. 930.)

Birth Injury At Roseville Medical Facility Due To Malpractice, Part 7 of 9

May 27, 2009 | by Moseley Collins

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

THE ISSUE OF INFORMED CONSENT

The defendant says that there is virtually no testimony on the issue of informed consent except Dr. Linda X.’s testimony that she failed to obtain the patient’s informed consent to use the vacuum. What more is needed?

Although the plaintiff was precluded from offering testimony that she would not have consented to the vacuum’s use had the risks and benefits been properly explained, there appears to be abundant testimony from the defendant himself to submit this theory of liability to the jury for its consideration. The Court is well aware no expert witness testimony is required on the issue of informed consent. Ardto v. Avedon, (1993) 5 Cal. 4th 1172.

Furthermore, the Court will recall that plaintiffs presented three distinct theories of liability against Dr. Linda X. (1) Her negligence caused the medical emergency; (2) She was negligent in management of the medical emergency; and (3) She failed to obtain Mrs. Brown’s informed consent to employ the vacuum device at mid-pelvis.

Because of the multiple theories of negligence offered by plaintiffs, this jury could have found Dr. Linda X. negligent on any or all of the issues. With multiple contentions of negligence, but no special interrogatory to the jury asking which specific act or acts they deemed negligent, defendant cannot now challenge the jury’s findings. They may have found her not negligent on the informed consent issue. We will never know.

Abusive Local Clothing Company Owners Sued For Harassing Hispanic Employees, Part 11 of 18

May 27, 2009 | by Moseley Collins

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

STATEMENT OF FACTS RELATING TO GREEN
67. Plaintiff incorporates herein by reference each and every allegation contained in paragraphs1 through 28 with full force and effect as though fully set forth herein.
68. Green is a Latina female, born XX/XX/1962, and is of El Salvadoran descent and/or national origin. Green is presently 45 years of age.
69. On or about October 2003, Green was hired by Defendant UCC. Her last position with Defendant UCC was working as a floor manager, earning $9.00 per hour.
70. On or about August 15, 2006, Green was forced to quit her employment with Defendant UCC as a direct result of constructive discharge.
71. While Green was employed at UCC, she was subjected to a daily pattern and practice of sexual and racial discrimination, harassment and retaliation as a result of serious and pervasive sexual and racial discrimination and harassment against Latina workers resulting in a sexually and racially hostile work environment, including but not limited to:
a) Defendant Paul Smith vocally announced on many occasions on the work floor to the Latina workers that as the owner he had the right to demand and expect sexual favors from the Latina female workers.
b) Defendant Pal Smith did not make the same statement to the non-Latina female workers.
c) Defendant Paul Smith maintained inside the workplace areas open and notorious sexual relationship with two other women known as Marta and Justine.
d) Defendant Paul Smith made it clear to the Latina work force that things would be better for them at work is they went along with the sexual expectations. For example, Defendant Paul Smith extended more favorable treatment to the women romantically involved with him in the workplace with respect to terms and conditions of employment.

Bay Area Automobile Accident Catastrophically Injures Folsom Man, Part 12 of 14

May 27, 2009 | by Moseley Collins

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

First it should be noted that the application, evaluation and weighing of these factors cannot possibly be conducted without the court making factual determinations and weighing evidence, a process incompatible with summary adjudication.
In O’Connor v. McDonald’s Restaurant, supra, 220 Cal.App.3d 25 plaintiff was injured in a motor vehicle accident caused by a McDonald’s employee. The employee had voluntarily returned to the restaurant one evening from 8:00 p.m. until 1:00 or 2:00 a.m. in order to do extra cleaning and preparation for a “spring blitz” competition. The employee voluntarily contributed his extra time with a goal of receiving a promotion. He then traveled from McDonald’s to a co-workers house where he socialized until about 6:30 a.m. The accident occurred when he was traveling from the co-worker’s house to his own house. The trial court granted summary judgment in favor of McDonald’s, finding that he was on a special errand for McDonald’s when he voluntarily reported for cleanup duties, but that the stop at the co-worker’s house was a “complete departure” from the special errand and McDonald’s responsibility for his driving therefore terminated before the accident occurred. The court of appeal disagreed, and after applying the factors set forth in Felix v. Asai, concluded that there was a triable issue of material facts as to whether the trip to the co-worker’s house constituted a complete departure from the special errand. O’Connor v. McDonald’s Restaurants of California, Inc. Supra, 220 Cal.App.3d at 33-34.
In applying the factors set forth by the court in Felix v. Asai, the inescapable conclusion is that there is a clear nexus between Smythe’s arrival at the site of the accident and her work for ABC.

Sierra Ski Resorts Deal with Multiple Deaths and Tragedies

May 26, 2009 | by Moseley Collins

As it prepares to celebrate the 50th anniversary of hosting the Winter Olympics, a tight-knit Sierra Nevada ski community is mourning another loss in an unusual string of tragedies this season.

A skier’s deadly collision with a tree Thursday at California’s Squaw Valley USA resort is the latest in the series that involves two other skiers killed in avalanches and nine deaths in all.

Off the slopes, a shuttle bus crash killed a resort employee in April, and three young women hoping to get seasonal jobs died of carbon monoxide poisoning in December while sleeping in a car just outside the resort.

Extreme skier Shane McConkey of Squaw Valley died in March while jumping off a cliff with a parachute in Italy. And Dave Pedersen, the resort’s race services director, died of cancer in February.

“To say this has been a year of tragedy is an understatement,” said Savannah Cowley, a resort spokeswoman. “It has been tragedies that have really, really struck our community. This is unprecedented as far as the grief this mountain has gone through.”

Pete Bansen, Squaw Valley’s fire chief, said he can’t recall as many different kinds of fatalities in his 30 years in the resort community.

The avalanches – one killing ski patrol member Andrew Entin, 41, in March, and the other killing Randall Davis, 21, of Tahoe City, in December – were especially rare for Squaw Valley, he said. They were the first inbounds avalanche fatalities at the resort since 1963.

Sacramento-area Mother Sues Negligent Obstetrician For Birth Injury Part, 4 of 8

May 26, 2009 | by Moseley Collins

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

B. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED THE OBSTETRICIAN OWES A SEPARATE DUTY TO A MOTHER NOT TO INJURE HER CHILD – DISTINCT FROM THE OBSTETRICIAN’S DUTY NOT TO INJURE THE MOTHER
The medical care providers can breach two duties when they commit negligence resulting in the delivery of an injured child. The first breach of duty can be to the mother if she has suffered damages such as the mother here. Liability for breach of such a duty is set forth in statute: Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want or ordinary care or skill in the management of his property or person, …. (Civil Code, § 1714.) The second breach of duty is the breach of duty resulting in the mother’s emotional distress arising from the abnormal event of participating in a negligent delivery and reacting to the tragic outcome …. (Burgess, supra, 2 Cal.4th at p. 1085.)

Consequently, the mother here was correct to allege two separate and distinct causes of action, one for herself, another for her participation in the abnormal delivery and injury to the child which was delivered. Since the mother here has suffered the breach of two separate duties, she is allowed to allege two separate causes of action.

The Supreme Court expressly held that the health care provider owes a duty to the mother regarding the medical treatment of the fetus. This is a separate and distinct duty apart from the breach of the duty to the mother resulting in the mother’s injury: