Products Liability and Injury Lawyer Blog

RESPONDEAT SUPERIOR: COURSE AND SCOPE OF EMPLOYMENT

Thu, 22 Dec 2011 15:42:03 -0800

Agustus Vogt v. Herron Construction, --- Cal.Rptr.3d ----, 2011 WL 5142986, 11 Cal. Daily Op. Serv. 13,556

A concrete subcontractor was injured at a construction site when he was run over by a personal vehicle owned and driven by an employee of another contractor. He then filed an action against the driver's employer under the doctrine of respondeat superior, alleging that the employee had accidentally run him over while moving his own pickup truck in order to allow the concrete subcontractor’s employees to begin pouring cement nearby.

The defendant moved for summary judgment, contending that its employee was not acting in the course and scope of his employment at the time of the accident, because he was moving his personal vehicle, which was not required for his job, and was doing so for a non-work-related purpose of preventing damage to the truck from splashing of wet concrete.

The trial court granted summary judgment but the court of appeal reversed, holding that by moving his truck, the worker was furthering the employer’s overall enterprise, and that moving the truck was necessary to “his comfort, convenience and welfare while on the job”:

PREMISES LIABILITY: TRIVIAL DEFECTS

Tue, 29 Nov 2011 15:29:17 -0800

Cadam v. Somerset Gardens Townhouse HOA, (Second District, September 28, 2011, as modified October 28, 2011) --- Cal.Rptr.3d ----, 2011 WL 5110249, 11 Cal. Daily Op. Serv. 13,305

A 63 year old woman who was injured when she fell after tripping on a separation in a concrete walkway next to the townhome she was leasing, filed an action against a homeowner’s association and its management firm. Asserting causes of action for premises liability and negligence, the plaintiff alleged that the walkway had shifted and adjacent sections had separated such that they differed in height by three-fourths to seven-eighths of an inch, creating a dangerous condition.

Following a jury verdict in favor of the plaintiff, the trial court granted the defendants' motion for judgment notwithstanding the verdict. Although the HOA association president had testified that a defect of one-half inch or more is “probably” dangerous, the court found that no reasonable person could find that the condition was not a trivial defect under the circumstances.

The court of appeal affirmed, holding that “[a] trivial defect is no less trivial when it exists on a walkway in a privately owned townhome development”:

PUNITIVE DAMAGES: RATIO RELATIVE TO COMPENSATORY

Sat, 01 Oct 2011 12:06:20 -0800

Bullock v. Philip Morris USA, Inc., (Second District, August 17, 2011) --- Cal.Rptr.3d ----, 2011 WL 3599605, 11 Cal. Daily Op. Serv. 10,492

A woman who contracted lung cancer after smoking for over 40 years filed suit against Philip Morris, alleging that the cigarettes were negligently and defectively designed and that the defendant failed to adequately warn her of the dangers of smoking. The plaintiff also alleged that the defendant intentionally and negligently misrepresented to the public and the medical and scientific community the adverse health effects of smoking, and concealed material facts relating to the dangers of cigarettes. A jury found that Philip Morris was guilty of malice, fraud or oppression with respect to each count, and awarded Bullock $850,000 in compensatory damages, as well as $13.8 million in punitive damages.

On appeal the Defendant contended that the punitive damages award was constitutionally excessive, and that a ratio of one-to-one would be appropriate in light of the substantial compensatory damages award. However, the Court of Appeal affirmed the judgment, holding that in light of the “extreme reprehensibility of Philip Morris's misconduct, including the vast scale and profitability of its course of misconduct, and its financial condition,” an award of approximately 16 times the compensatory damages was justified and not unconstitutionally excessive:

LENDER FRAUD: NEGATIVE AMORTIZATION LOANS

Mon, 12 Sep 2011 12:02:52 -0800

Boschma v. Home Loan Center, Inc., (Fourth District, August 10, 2011) --- Cal.Rptr.
3d ----, 2011 WL 3486440, 11 Cal. Daily Op. Serv. 10, 237, 2011 Daily Journal D.A.R. 12,103

A couple who refinanced their existing home loan utilizing an "Option ARM" filed an action against the lender, alleging that the defendant's loan documents failed to adequately and accurately disclose the essential terms of the loan, and that the plaintiffs would suffer negative amortization if they made monthly payments according to the payment schedule provided prior to the closing of the loan. Asserting causes of action for fraud and violations of Business and Professions Code section 17200 et seq., the plaintiffs alleged that the defendant utilized a “teaser” interest rate of 1.25 percent for the first month of the 30 year loan which bore no relation to the actual cost of credit, and that the payment schedule did not clearly indicate it was based upon the teaser rate rather than the APR listed on the loan.

The trial court sustained the defendant's demurrer to the second amended complaint without leave to amend, finding that the loan documentation adequately described the nature of Option ARMs, and that the loan documents showed detailed, highlighted and repeated warnings regarding the interest rate changes, adequacy of payments to cover both principal and interest, and the prospect of the negative amortization. The court of appeal reversed, rejecting the defendant's contention that strict compliance with the federal Truth in Lending Act (TILA, 15 U.S.C. § 1601 et seq.) provides a safe-harbor from such claims:

NEGLIGENT ENTRUSTMENT: TRUCKING ACCIDENT

Wed, 10 Aug 2011 14:56:23 -0800

Diaz v. Carcamo, (California Supreme Court, June 23, 2011) --- P.3d ----, 2011 WL 2473597

A woman who was injured in a freeway collision filed an action for negligence against the driver of a truck which collided with her vehicle. The plaintiff also sued the driver’s employer under a theory of negligent hiring and retention. The defendant employer offered to admit vicarious liability, arguing that, under Armenta v. Churchill (1954) 42 Cal.2d 448, its admission should preclude a cause of action for negligent hiring, retention and entrustment. However, at trial the court permitted the plaintiff to proceed on the negligent hiring and retention theory, and over objection of the defendants, allowed evidence of the driver’s prior accidents and employment history.

The court of appeal affirmed a jury verdict in favor of the plaintiff, holding that Armenta was distinguishable because it involved entrustment instead of hiring, and did not involve an allocation of comparative fault. However, the California Supreme Court reversed, holding that where an employer admits vicarious liability for any negligent driving by its employees, a plaintiff may not pursue a negligent entrustment, hiring or retention claim:

PRIMARY ASSUMPTION OF THE RISK: AMUSEMENT PARK RIDES

Fri, 15 Jul 2011 11:50:10 -0800

Nalwa v. Cedar Fair, L.P., (Sixth District, June 10, 2011) --- Cal.Rptr.3d ----, 2011 WL 2279049, 11 Cal. Daily Op. Serv. 7167, 2011 Daily Journal D.A.R. 8575

A physician who suffered a fractured wrist while riding in a bumper car at an amusement park filed an action against the owner of the park, asserting claims for negligence and common carrier liability. The plaintiff alleged that her car was hit head-on by another bumper car, and then immediately hit from behind, causing her to be injured when she attempted to brace herself. The plaintiff further alleged that while the defendant’s four other parks were configured so that cars could only be driven in one direction, the only steps to prevent head-on collisions at the subject park were post-collision admonitions to riders from park employees.

The trial court granted summary judgment, finding that the doctrine of primary assumption of the risk barred recovery both as to regular negligence and common carrier claims, and that the defendant did not have a duty to reduce risks that are inherent to bumper car riding. The court of appeal reversed, holding that amusement park rides are not the type of sport or activity susceptible to the primary assumption of risk analysis:

NEGLIGENCE PER SE: CAL-OSHA REGULATIONS

Tue, 28 Jun 2011 11:55:09 -0800

Iversen v. California Village Homeowners Association, (Second District, March 23, 2011) --- Cal.Rptr.3d ----, 193 Cal.App.4th 951, 2011 WL 1034261, 11 Cal. Daily Op. Serv. 3584, 2011 Daily Journal D.A.R. 4282

A heating and refrigeration contractor who was injured in a fall from a ladder while servicing air conditioners at a condominium complex, filed suit against the homeowner’s association which had hired him. The plaintiff asserted a negligence per se cause of action, contending that the defendant had violated Cal-OSHA regulations which require a cage or other safety device for ladders taller than 20 feet, such as the one being used at the time of the accident.

The defendant moved for summary judgment, arguing that because the plaintiff was an independent contractor, and not an employee, it was not required to comply with Cal-OSHA regulations and did not owe him a duty of care. The trial court granted the motion and the court of appeal affirmed, holding that Cal-OSHA regulations do not apply to an independent contractor, and therefore could not be used by the plaintiff to establish negligence per se:

PUNITIVE DAMAGES: FAILURE TO WARN

Wed, 25 May 2011 10:36:28 -0800

Johnson & Johnson v. Superior Court, (Second District, January 20, 2011) --- Cal.Rptr.3d ----, 192 Cal.App.4th 757, 2011 WL 169407, 11 Cal.Daily Op. Serv. 1918, 2011 Daily Journal D.A.R. 2268

A boy who developed a serious skin condition as a result of a severe adverse reaction to an over-the-counter (OTC) pain reliever filed a products liability action against the manufacturer of the drug and its parent company, alleging that the defendants had failed to provide adequate warnings of the risks to consumers. The plaintiffs complaint asserted a claim for punitive damages, contending that the defendants had long known of the risk of the syndrome suffered by the plaintiff, but had misrepresented study results to the FDA in obtaining approval for the drug.

The Defendants moved for summary adjudication of the punitive damages claim, arguing that the product’s label had been approved by the FDA consistent with FDA regulations, and that regardless of whether they could or should have said something more explicit, their “FDA-approved labeling cannot conceivably evidence despicable conduct or a conscious disregard for safety.” The trial court denied the motion, and the Court of Appeal denied the defendants’ petition for a writ of mandate, holding that the evidence raised a triable issue of fact as to whether the manufacturer failed to warn, and whether there was a conscious disregard for safety:

PRODUCTS LIABILITY: FEDERAL PRE-EMPTION

Wed, 06 Apr 2011 11:39:08 -0800

Williamson v. Mazda Motor of America, Inc., (Supreme Court, February 23, 2011) --- S. Ct. ----, 2011 WL 611628

The heirs of a woman who was killed in a head-on collision filed suit against the manufacturer of the minivan in which she was riding at the time of the accident, asserting various products liability theories. The plaintiffs alleged that the decedent would have survived the collision if the defendant had equipped her second row aisle seat with a lap and shoulder harness instead of just a lap belt. Under FMVSS 208, (49 C.F.R. § 571.208) the Federal Motor Vehicle Safety Standard in effect at the time the vehicle was manufactured, carmakers were not required to install shoulder harnesses in middle or aisle seats.

The defendant demurred to the complaint, contending that the claims were pre-empted by federal law which prohibits a state from establishing any safety standard applicable to a motor vehicle which is not identical to the federal standard. (15 U.S.C. § 1392(d)). The trial sustained the demurrer without leave to amend, finding that the action was preempted under Geier v. American Honda Motor Company, Inc. (2000) 529 U.S. 861, 120 S.Ct. 1913, 146 L.Ed.2d 914. However, the United States Supreme Court granted certiorari and reversed, holding that the regulation does not pre-empt the claim asserted by the plaintiffs:

LIABILITY RELEASES: GROSS NEGLIGENCE

Thu, 17 Mar 2011 12:55:45 -0800

Eriksson v. Nunnink (Fourth District, January 10, 2011) --- Cal.Rptr.3d ----, 2011 WL 60516

The parents of a 17 year old equestrian competitor who was killed when the horse she was riding tripped over a hurdle and fell on her, filed an action for wrongful death against their daughter’s riding coach. Although the girl and her mother had signed a liability release, assuming all risks and holding the coach harmless from any and all claims, the plaintiffs alleged the coach had unreasonably increased the risk of harm to the decedent by knowingly permitting her to ride a horse which she knew to be unfit because of prior falls and lack of practice.

The trial court granted the defendant’s motion on the grounds of primary assumption of the risk, but the court of appeal reversed, holding, inter alia, that triable issues of fact existed as to whether the defendant’s conduct was grossly negligent within the meaning of City of Santa Barbara v. Superior Court (2007) 41 Cal. 4th 747:

PRODUCTS LIABILITY: PUNITIVE DAMAGES

Tue, 22 Feb 2011 12:41:47 -0800

Stewart v. Union Carbide Corporation (Second District, November 16, 2010) 190 Cal.App.4th 23, 117 Cal.Rptr.3d 791, 10 Cal. Daily Op. Serv. 14,363, 2010 Daily Journal D.A.R. 17,352

A plumber and his wife filed a products liability action against Union Carbide, an asbestos manufacturer, alleging that he had contracted mesothelioma as a result of exposure to asbestos in products used on commercial and residential construction projects. The plaintiffs further alleged that Union Carbide had been aware of the dangers of asbestos but had failed to adequately warn customers who purchased asbestos for use in their products, and had responded to their questions by downplaying concerns.

Following a jury verdict in favor of the plaintiffs, which included an award for punitive damages, the Defendant appealed, contending that the evidence showed that it had an “honest conviction” that the use of its product was safe when appropriate precautions were taken. However, the court of appeal affirmed the verdict, stating:

EMOTIONAL DISTRESS: CONSUMER REVIEW WEBSITES

Sun, 23 Jan 2011 10:33:13 -0800

Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 117 Cal.Rptr.3d 747
A man who was upset over the treatment his son had received from a pediatric dentist posted a number of criticisms of the dentist on Yelp.com, a website which posts consumer reviews of a variety of businesses. The dentist filed suit against the man, asserting causes of action for libel per se and intentional infliction of emotional distress, contending that the defendant’s comments falsely implied the dentist had not warned about mercury in a silver amalgam, that she had misdiagnosed the son’s case, and that she had improperly used a general anesthetic. The postings also included, “I wish there were a “0” star [] rating. Avoid her like a disease!”

When the defendant filed a motion to dismiss the action as a strategic lawsuit against public participation under the Anti-SLAPP statute (C.C.P. 425.16) the trial court denied the motion, finding that although the action arose from protected speech, the plaintiff had established a probability of success on the merits. The court of appeal held that the trial court had properly denied the motion as to the libel cause of action, but found that the causes of action for emotional distress should have been dismissed, in that the plaintiff’s response to the posting was not sufficiently severe or serious:

MORTGAGE QUALIFICATION DETERMINATIONS: FRAUDULENT MISREPRESENTATIONS

Mon, 06 Dec 2010 13:48:05 -0800

Perlas v. GMAC Mortgage, LLC, (First District, August 11, 2010) 187 Cal.App.4th 429, 113 Cal.Rptr.3d 790, 10 Cal. Daily Op. Serv. 10,254, 2010 Daily Journal D.A.R. 12,466

A man and a woman whose property was foreclosed upon when they were unable to make the payments on their property loan and a home equity line of credit filed suit against GMAC Mortgage, LLC, a commercial mortgage lender, asserting causes of action for fraudulent misrepresentation and fraudulent concealment. The plaintiffs alleged that at the time the defendant prepared and tendered documents for the loan and credit line, it was not possible for them to make the payments called for, but by preparing and tendering the documents to the plaintiffs, the defendant represented that they could in fact make the payments. The plaintiffs further alleged that the defendants failed to disclose to them that they could not possibly afford the payments called for in the loans, and that the qualification for the loans was based upon a fabricated inflated income.

The trial court sustained the defendants demurrer without leave to amend and the court of appeal affirmed, holding that the plaintiffs could not amend to state a cause of action for fraudulent misrepresentation or fraudulent concealment:

PRODUCTS LIABILITY: CONSUMER EXPECTATION TEST

Mon, 22 Nov 2010 13:37:32 -0800

Saller v. Crown Cork & Seal Company, Inc., (Second District, August 27, 2010) 187 Cal.App.4th 1220, 115 Cal.Rptr.3d 151, 10 Cal. Daily Op. Serv. 11,333, 2010 Daily Journal D.A.R. 13,636

The heirs and estate of a man who died of mesothelioma filed an action for wrongful death against several asbestos manufacturers under various theories of products liability. The plaintiffs alleged that the decedent’s disease had been caused by his exposure decades earlier to asbestos-containing products, while at work and while using home repair products.

Following a jury verdict in favor of the defendants the plaintiffs appealed, contending that the trial court had erred in refusing to instruct the jury with CACI 1203, the consumer expectations test. The court of appeal reversed, rejecting the defendants’ contention that the consumer expectations test did not apply because no one knew of the dangers of asbestos at the time the plaintiff was exposed:

NEGLIGENT ENTRUSTMENT: CAR RENTALS

Tue, 19 Oct 2010 11:35:16 -0800

Flores v. Enterprise Rent-a-Car Company, (Second District, September 28, 2010) ---Cal.Rptr.3d ---- 188 Cal.App.4th 1055, 2010 WL 3749502, 10 Cal.Daily Op. Serv. 12,606, 2010 Daily Journal D.A.R. 15,174

The parents of a boy who suffered fatal injuries after he was struck by a rental car brought an action for negligent entrustment against Enterprise Rent-a-Car Company of Los Angeles and Enterprise Rent-a-Car Company. The plaintiffs alleged that the driver of the vehicle was under the influence of marijuana and the drug Ativan at the time of the accident, and that he had been convicted of driving under the influence of August of 2002 and May of 2003. The plaintiffs also alleged that the standard of practice for rental car companies is to screen potential renters for past convictions for driving under the influence of drugs or alcohol, and to refuse to rent vehicles to customers with a conviction within the previous 48 months.

The trial court granted summary judgment, holding that because the driver of the vehicle had a valid driver’s license and had given no indication that he was unfit to drive at the time of the rental, there was no additional duty on the part of the defendants to investigation his DMV records. The court of appeal affirmed, holding that Osborn vs. Hertz Corporation (1988) 205 Cal.App.3d 703, 252 Cal.Rptr. 613, should not be revisited, despite the more recent availability of electronic driver’s license checks: