Personal Injury Lawyer Blog

Folsom Driver Now Quadriplegic After Car Accident, Part 11 of 14

May 25, 2009 | by Moseley Collins

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

Where the employee “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 a third person was injured.” Miller v. Stouffer (1992) 9 Cal.App.4th 70, 78. “If the main purpose of his activity is still the employer’s business, it does not cease to be within the scope of the employment by reason of incidental personal acts, slight delays, or deflections from the most direct route. State Farm Mut. Auto. Ins. Co. V. Haight (1988) 205 Cal,App.3d 223, 243. Under such circumstances, the employer will face respondent superior liability “unless it clearly appears that the servant could not have been directly or indirectly serving his master.” Miller v. Stouffer, supra, 9 Cal.App.4th at 78 citing Loper v. Morrison (1944) 23 Cal.2d 600, 606.

Even if not motivated by a desire to serve the employer, conduct is nevertheless within the course and scope of employment if there is a sufficient causal nexus between the conduct at issue and the employment. Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 298. A sufficient causal nexus exists where the conduct at issue is “generated by or an outgrowth of work place responsibilities, conditions or events.” Id. at 302.

Mother Of Birth-Injured El Dorado Child Sues Physician, Part 3 of 8

May 24, 2009 | by Moseley Collins

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

(Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916). Consequently, direct victim emotional distress does not rely upon physical injury or impact.

And the lack of a requirement for physical injury is a key central aspect of the direct victim analysis. In Molien, the Supreme Court answered in the affirmative the question of whether, in the context of a negligence action, damages may be recovered for serious emotional distress unaccompanied by physical injury. (Burgess, supra, 2 Cal.4th at p. 1073.) To emphasize the point that physical injury is not part of the direct victim analysis, the Supreme Court in Burgess made the point again: physical injury is not a prerequisite for recovering damages for serious emotional distress, especially when as here, there exists a guarantee of genuiness in the circumstances of the case. (Burgess, supra, 2 Cal.4th at p. 1079.) The Supreme Court put its point in a headline: Lack of Physical Injury Does Not Defeat Burgess’s Claim. (Id. at p. 1078.) Physical injury is not connected with the direct victim analysis.

The point here is that the defense argument that the direct victim emotional distress action is subsumed into the mother’s personal injury action is entirely illogical. If the direct victim analysis specifically excludes physical injury, how can the direct victim emotional distress be subsumed into a physical injury action? The physical injury and the emotional distress here are separate and distinct. And the Supreme Court in Burgess makes this distinction.
The Defendants rely upon one comment in Burgess taken out of context: We have repeatedly recognized the [t]he negligent causing of emotional distress is not an independent ort, but the tort of negligence. [Citation.] The traditional elements of duty, breach of duty, causation, and damages apply. (Id. at p. 1072.) This statement means is that in order to plead direct victim emotional distress, the elements of negligence must be alleged. But Burgess never held that direct victim emotional distress is subsumed into a separate personal injury action. The further language in Burgess clarifies that the direct victim emotional distress it is addressing involves not the mother’s emotional distress from injury to herself but rather the mother’s emotional distress because of injury to the child:

Delivery Room Malpractice Results In Brain Injury, Part 6 of 9

May 24, 2009 | by Moseley Collins

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

The court had no adequate basis for a new trial order, conditional or otherwise. (Sanchez-Corea v. Bank of America, supra, 38 Cal.3d at p. 906.) We do not construe the juror declarations taken as a whole to show an express or implied agreement by the jury to inflate the verdict to include attorney fees. After examining the record, we conclude a new trial was not required as a matter of law because of alleged jury misconduct or anything else.

Under like circumstances the court in Moore v. Preventive Medicine Medical Group, Inc., (1986) 178 Cal.App.3d 728 [223 Cal.Rptr. 859] affirmed the denial of a new trial for jury misconduct. In Moore, two juror declarations were introduced to show a discussion among the jurors regarding the plaintiff’s probable contingency fee obligation to his attorney. Distinguishing Krouse v. Graham (1977) 19 Cal.3d 59 [137 Cal.Rptr. 863, 562 P.2d 1022], the court found the declarations insufficient to establish [a]n express agreement by the jurors to include such fees in their verdict, or extensive discussion evidencing an implied agreement to the effect. [Citations.]…. The declarants do not suggest an express agreement was reached and the discussion they relate could hardly be characterized as extensive, (Moore, supra, 178 Cal.App.3d at pp. 740-741, fn. Omitted.) Thompson v. Friendly Hills Medical Center, (1999) 71 Cal.4th 544, 548.

The main thrust of moving parties’ argument seems to be juror discussion about money. Discussions about the appropriate size of Mrs. Brown’s award and how it might be spent is simply not juror misconduct. The moving party has not cited a single authority to suggest otherwise. There is no evidence in the declarations that any juror awarded Mrs. Brown compensation not supported by evidence.

As discussed in the authorities cited above, it is acknowledged that these types of discussions are part of the give and take of the jury’s secret deliberation process.

Company Owners Violate Sacramento Hispanic Employees’ Rights, Part 10 of 18

May 24, 2009 | by Moseley Collins

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

60. Defendant UCC also discriminated against Plaintiff because of his vocal opposition to the sexual favoritism at his workplace.
61. The effect of Defendant UCC’s unlawful employment practices has been to limit, classify and to discriminate against plant floor workers in ways which jeopardize and tend to deprive them of employment opportunities and otherwise adversely affect their status as employees because of their sex and/or race, and Plaintiff is a victim of such practices, is and will continue to be unlawfully deprived of income in the form of wages and of prospective retirement benefits, seniority, social security benefits, insurance coverage and non-monetary due solely to his sex and/or race.
62. Defendant UCC and/or its agents and employees, supervisors, managers, officers and/or directors knew or should have known of the severe and pervasive sexual favoritism on the basis of verbal and/or written reports of such actions made by Plaintiff to Defendant UCC’s supervisors, managers, officers and/or directors. Despite Defendant UCC’s actual and/or constructive knowledge of such favoritism, Defendant UCC failed to take immediate and/or appropriate corrective action to stop the favoritism. Furthermore, before the resulting unlawful discrimination, harassment and retaliation occurred, Defendant UCC failed to take all reasonable steps to prevent such unlawful actions from occurring.
63. Defendant UCC also subjected plaintiff to discriminatory enforcement of company rules, arbitrary enforcement of rules, arbitrary write-ups, racially hostile comments, innuendos, and offensive and insulting remarks, unfair performance evaluations, contrived terminations, demotions, punishments and retaliation against Plaintiff for engaging in protected activity.

Female Sacramento Attorney Viciously Attacked By Dog, Part 7 of 7.

May 24, 2009 | by Moseley Collins

V. ECONOMIC DAMAGES
Past Economic Damages:
Meridian Resource Company $ 21,454.67
Valley MRI & Family Imaging Center $ 1,306.80
Central Anesthesia Medical Group, Inc. $ 100.32
Northern California Cardiology Associates Med. Grp. $ 32.00
Mark Hambly, M.D. $ 658.26
Jeff Jones, M.D. $ 2,693.00
Randall Armstrong, MD $ 220.00
Roseville Memorial Hospital $ 1,079.27
EMPI $ 73.75
HealthCare Clinical Laboratories $ 406.00
Sutter General Hospital (deductible) $ 1,508.13
Ramnick Clair, M.D. (estimate) $ 1,200.00
Roseville Delta Emergency Physicians $ 354.92
St. Joseph’s Medical Center $ 6,461.25
Smallie Chiropractic $ 944.35
Roseville Physical Therapy $ 1,186.00
Richard Harty, P.T. $ 270.00
Prescriptions $ 1,595.57
Total Past Medical $ 41,544.29
Past Wage Loss $ 67,465.56
Future Wage Loss $ 674,655.60
Total Wage Loss $ 742,121.16
Richard Harty, P.T. $ 360.00
Roseville Physical Therapy $ 1,200.00
Surgery $ 125,000.00
Medication $ 41,760.00
Physical Therapy $ 50,112.00
Total Future Medical $ 218,432.00
TOTAL ECONOMIC DAMAGES $ 1,002,097.45

Copies of her bills are referenced herein.

Please note, Ms. Rich’s wage loss and medical damages are increasing weekly.

VI. PUNITIVE DAMAGES

As discussed above, defendant, Paul Stevens, had already signed a document acknowledging the subject dog Franz was a vicious dog that had to be restrained. Despite this and with a conscious disregard for the safety of others, Paul Stevens permitted the dog to run free and attack Ms. Stevens.

We have sued Mr. Stevens for punitive damages. As you know, punitive damages, if awarded, must be paid personally by Mr. Stevens. It will not be paid by his insurance.

A failure by Allstate Insurance Company to settle this case will expose Mr. Stevens to financial ruin.

Sacramento-area Farmer Catastrophically Injured In Tour Bus Accident, Part 6 of 6.

May 23, 2009 | by Moseley Collins

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

Defendant driver, Bobbi Jones, had driven this trip 17 of the 19 years that it had taken place, and prior to this year she had never had a problem. This year, however, despite all the problems that defendant driver caused, she still believed her driving was up to par. In her deposition taken on May 15, 2007, she testified:

“Q. Now, in the other 16 years you drove, do you recall making any driver error?

Medical Malpractice Results In Birth Injury to Sacramento-area Baby, Part 2 of 8

May 22, 2009 | by Moseley Collins

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

II BURGESS: A MOTHER’S EMOTIONAL DISTRESS ACTION FOR INJURY TO HER CHILD IS NOT SUBSUMED INTO HER NEGLIGENCE CAUSE OF ACTION

The seminal case allowing a mother to assert direct victim emotional distress for injury to her child during birth is Burgess v. Superior Court (Gupta) (1992) 2 Cal.4th 1072. Under Burgess, there are two reasons why the mother’s direct victim emotional distress is not subsumed by her separate negligence personal injury cause of action: (1) Burgess’s own language found the mother could allege emotional distress irrespective of whether she alleged personal injury; and, (2) Burgess recognized the obstetrician had a duty directly to the mother not to injure her child, which is distinct from a duty not to injure the mother directly.

A. BURGESS: THE SUPREME COURT IN BURGESS RECOGNIZED DIRECT VICTIM EMOTIONAL DISTRESS FOR THE MOTHER INDEPENDENT OF ANY PERSONAL INJURY ACTION

The Supreme Court in Burgess held the mother in a case of obstetrical negligence can recover for emotional distress for injury to her child – as opposed a separate injury to the mother. A reading of Burgess shows the mother’s emotional distress for the child’s injury is not subsumed by a mother’s separate personal injury action. Indeed, the Supreme Court specifically held that physical injury is not part of the direct victim analysis.

Burgess is similar to the present case. In Burgess, the defendant obstetrician delivered an injured child who subsequently died: Joseph died during the course of the litigation, allegedly as the result of his injuries. A wrongful death action was subsequently filed by Burgess [the mother] and was consolidated with the original malpractice action. (Burgess, supra, 2 Cal.4th at p. 1070-1071.) Consequently, Burgess included both a malpractice claim and a wrongful death claim.

Parents Sue Sacramento-area Hospital For Medical Malpractice, Part 5 of 9

May 22, 2009 | by Moseley Collins

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

Our power over excessive damages exists only when the facts are such that the excess appears as a matter of law, or is such as to suggest at first blush, passion, prejudice, or corruption on the part of the jury, (citations omitted.) Practically, the trial court must bear the whole responsibility in every case. (Bond v. United Railroads (1911) 159 Cal. 270, 286 [113 P. 366].)

The trial judge had an opportunity to review the evidence in this case at the time of the hearing on the motion for new trial. We have also independently reviewed the evidence.

The mere fact that the judgment is large does not validate an appellant’s claim that the verdict is the result of passion or prejudice of the jury. Each case must be determined on its own facts. It is only in a case where the amount of the award of general damages is so disproportionate to the injuries suffered that the result reached may be said to shock the conscience, that an appellate court will step in and reverse a judgment because of greatly excessive or grossly inadequate general damages. (Daggett v. Atchison. T. & S.F. Ry. Co., (1957) 48 Cal.2d 655, 666 [313 P.2d 557, 64 A.L.R.2d 1283].)

That result which requires reversal should clearly appear from the record. We are unable to say, as a matter of law, that the judgment in this case is so excessive as to warrant us in interfering with the finding of the jury. Di Rosario, Id. @ 1239.

West Sacramento Clothing Company Workers Sexually Harassed, Part 9 of 18

May 22, 2009 | by Moseley Collins

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

55. Within one year prior to the filing of the administrative complaint, Plaintiff complained to his superiors, supervisors, managers, and officers about the above described discrimination, harassment and abusive treatment.
56. Defendant UCC maintained and/or allowed a pattern and practice of unlawful sexual and racial discrimination, harassment and retaliation against female workers.
57. Such discrimination and harassment also created a hostile and/or offensive working environment for Plaintiff.
58. Plaintiff was obliged to work in an atmosphere which was hostile to females by virtue of severe and pervasive favoritism granted to Latina females plant floor workers who would go along with Defendant Paul Smith, including unsolicited and unwelcome sexual remarks and/or innuendos, advances, requests for sexual favors and other verbal and physical conduct of a sexual nature. The sexual harassment was sufficiently serious and pervasive to alter the conditions of Plaintiffs employment and create a working environment which was intimidating, insulting, and abusive.
59. Defendant UCC discriminated against Plaintiff in violation of Government Code Section 12940 et seq. by constructively discharging and/or firing and otherwise discriminating against Plaintiff by engaging in, tolerating and/or failing to prevent the favoritism alleged above and by failing to take any action, or make any reasonable and/or adequate investigation of plaintiff’s reports of favoritism and failed to take any steps reasonably calculated to end the discrimination, harassment and retaliation and/or correct or redress the unlawful employment practices. (See Part 10 of 18.)

Sacramento Dog Bite Victim Requires Surgery, Part 6 of 7.

May 22, 2009 | by Moseley Collins

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

Since the attack, Ms. Rich tried to return to work approximately one week post-incident and has tried to work intermittently since the incident, but has been unable to return to her full duties over the past 12 months because of her back and leg pain. She continues to receive significant medical care. Dr. Shortley stated the following about her past and future employment:

“Ms. Rich was working long hours prior to the dog attack March 17, 2006… Because of the persistence of her pain and neurologic loss in spite of reducing her workload it is probable that Ms. Rich will not be able to return to the work schedule he enjoyed before the dog attack. Therefore it is probable that he will not be able to work the number of hours and will have wage loss that will be ongoing into the future.”

Dr. Shortley’s report is referenced herein.

On average, Ms. Rich earned $6,437.40 per month before the attack at her home office law practice. After the dog attack she earned $5,450.27. Therefore, she had a $987.13 loss per month. Financial records are referenced herein.

By March 30, 2006, Ms. Rich earned $26,640.34 ($8,880.11 average per month) from her local office practice before the attack, and by May 2006 her year-to-date income was only $35,910.34. She only earned $9,270.00 in April and May, or $4,635.00 per month after the attack. Therefore, she has earned approximately $4,245.11, less per month from this portion of her practice. Those financial records are referenced herein.