Personal Injury Lawyer Blog
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/medical malpractice case and its proceedings.)
SUMMARY OF ARGUMENT
The third, fourth and fifth causes of action of plaintiffs’ complaint are not appropriate in a birth injury case such as this one. The third cause of action, for negligent infliction of emotional distress by the mother, Melissa Green, is not proper because it is subsumed by her cause of action for negligence. The fourth cause of action by the father, plaintiff Paul Green, for negligent infliction of emotional distress, is improper because Mr. Green does not meet the requirements for recovery under either the direct victim theory or the bystander theory of NIED. Specifically, because Mr. Green admits that he did not become aware of any injuries suffered by the baby, indeed was not even concerned about injuries suffered by the baby, until he saw her come out, he cannot satisfy the contemporaneous awareness requirement for recovery for NIED. Finally, Mr. Green’ cause of action for loss of consortium fails because the only harm caused to their marriage as a result of the events in question is related to the child’s injuries, rather than injuries to his spouse, and damages for loss of filial consortium are not permitted in California.
It is worth noting that situations similar to those described in this case could just as easily occur at any of the healthcare facilities in the area, such as Kaiser, U.C. Davis Medical Center, Mercy, or Sutter.
SUMMARY ADJUDICATION MUST BE GRANTED WHERE THE MOVING PAPERS ESTABLISH THAT THERE EXISTS NO TRIABLE ISSUE OF MATERIAL FACT AND THAT THE MOVING PARTY IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
California Code of Civil Procedure Section 437c provides that a motion for summary adjudication shall be granted if all the papers submitted show that there exists no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
If no factual issues are presented, and the evidence establishes that the moving party is entitled to summary adjudication of the cause of action in its favor, the motion must be granted. Becker v. IRM Corp., (1985) 38 Cal.3d 454.
Under California law, to prevail on a motion for summary adjudication, the defendant is not required to come forward with evidence negating the entire claim. Rather, the initial burden on the moving defendant is to present evidence that one or more essential elements of the plaintiff’s cause of action cannot be established, and if the plaintiff, in opposition to the motion, fails to create a triable issue of fact on all these elements, summary adjudication must be granted. CCP Section 437c(0)(2); see also Krasley v. Superior Court (1981) 101 Cal.App.3d 425, 432;Union Bank v. Superior Court (1995) 35 Cal.App.4th 573, 590. (See Part 3 of 10.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.