(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)
PLAINTIFF DID NOT INTEND TO INCLUDE NON-PHYSICIAN JOHN BLACK AS A DEFENDANT IN THE MEDICAL MALPRACTICE CAUSE OF ACTION, AND DO NOT OPPOSE THE DEMURRER AS TO MR. BLACK FOR THAT CAUSE OF ACTION ALONE
The phrase “as to all defendants” referring to the medical malpractice cause of action should have been changed when the second amended complaint was filed, so as to separate the health care providers, to whom the first cause of action is addressed, from the ATV renters who failed to show a minor how to use their vehicles, to whom the second cause of action is addressed. We do not intend to show that Mr. Black was a stealth physician or that his duty to Kathy White was that of doctor to patient. We do not oppose this demurrer as to that first cause of action.
We also note in passing that this could have been cleared up with a phone call or any form of meet and confer, without wasting the court’s time.
GENERAL NEGLIGENCE IS SUFFICIENTLY PLEADED AS TO JOHN BLACK
Plaintiffs’ second cause of action begins with Paragraph 27, and applies explicitly to defendant John Black and Defendant BJ’s ATV Rentals. There are two defendants to whom this cause of action applies. Therefore, the plain meaning of an assertion that refers to “defendants” in the plural includes assertions directed to both of these two defendants. This includes John Black.
Paragraph 28 asserts that John Black was made aware of the inexperience of youngster Sean Lee in using an ATV when he rented it to Sean Lee. It asserts that John Black had a prior policy to give appropriate training to youngsters before renting ATVs to them, and that there was a statute that required that such a course of training be given before rental.
Paragraph 29 asserts that defendants, including therefore John Black, were fully aware of the statute that required basic training be given to minors being rented ATV, and that he told the minor and his father that this training was not necessary.
Paragraph 31 asserts that defendants and each of them including, therefore, John Black, carelessly and negligently owned, operated, maintained and controlled said business by failing and/or refusing, in violation of a state statute, to provide the safety course to Sean Lee, a minor, prior to renting him an ATV; that this absence of training was the cause of Sean Lee’s actions when placed in a difficult driving situation, to act in a manner that caused the accident which led to Kathy White’s initial wrist injury. (See Part 5 of 6.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.