Articles Posted in Negligence

Many Americans will not hesitate to say their pets are part of their family, even comparing them to children. They might be offended to learn that under California law pets are considered personal property, akin to a family heirloom or an author’s manuscript. California Penal Code Section 491 states, “Dogs are personal property, and their value is to be ascertained in the same manner as the value of other property.” Personal property may have peculiar value, which makes it more difficult or more expensive to replace. In the case of dogs, examples include characteristics such as desirable breed or wins as a show dog. However, owners may not recover for the sentimental attachment to the “property”.

The Fourth District California Appellate Court held in McMahon v. Craig, (2009) that the veterinarian whose negligence caused the death of McMahon’s beloved dog, Tootsie, was not liable for emotional distress, in spite of the fact that the veterinarian lied to cover up her mistakes. According to the court, McMahon failed to show that the veterinarian intentionally inflicted emotional distress on McMahon and that McMahon could not recover for negligently inflicted emotional distress. The court made clear that the emotional distress must be inflicted directly on the plaintiff and that the defendant must have a duty to limit emotional distress. The court held that McMahon was not a direct victim of the veterinarian’s actions nor did the veterinarian’s contract to care for Tootsie impose a duty to limit McMahon’s emotional distress. The Court also reiterated that owners cannot recover for loss of companionship because pets are considered personal property, not companions. The Court disparaged the idea that owners should be able to recover for the loss of companionship when in many circumstances parents cannot recover for the loss of their children’s company, whose death was a result of negligence.

The same Court handed down a decision on August 31, 2012, in the case of Plotnik v. Meihaus (2012). The decision further defined the limits on recovering for emotional distress as a result of injury to a pet. Among other complaints, the Plotniks asked for emotional distress damages after they found their dog, Romeo, seriously injured on their property. Mr. Plotnik then saw their neighbor, Meihaus, wielding a bat and confronted him about it. The trial court jury found that Meihaus inflicted the injury on the dog. While the Court of Appeals reaffirmed its own decision in McMahon v. Craig, it also cited another case, Gonzalez v. Personal Storage, Inc. which states, “…the limits imposed with respect to recovery for emotional distress caused by a defendant’s negligence do not apply when distress is the result of a defendant’s commission of the distinct torts of trespass, nuisance or conversion.”

Because the trial court jury found that Meihaus trespassed onto the Plotniks’ property and injured their dog, the Plotniks were able to recover for mental suffering related to the attack on their pet. In general, California pet owners have little recourse to recover for the suffering they go through after seeing their beloved pets hurt by another dog, a neighbor, or a car. Fortunately, the Plotnik v. Meihaus court has opened up potential recovery in a limited number of cases.
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The National Transportation Safety Board (NTSB) announced on August 21, 2012 that it has opened to the public its docket relating to a September, 2011 incident in which the “Galloping Ghost” aircraft crashed into spectators at the Reno National Championship Air Races. The crash killed 11 people and seriously injured another 66.

On August 27, it unveiled its analysis of the crash. According to the NTSB report, the pilot of the P-51D Mustang, Jimmy Leeward, made several extensive modifications to the plane without testing or reporting them to Federal Aviation Administration (FAA) as required. The modifications successfully reduced drag on the plane by making it lighter, but also destabilized the flight controls. Between pylons 8 and 9 of the course, Leeward lost control of the plane when it succumbed to “aerodynamic flutter“.

During flutter, aerodynamic forces act on the vibration of the plane’s structure, causing it to oscillate. In this case the structure of the plane was not stiff enough to resist the forces and combine with airspeed of 512 MPH the plane started to oscillate, or flutter. As the plane took on a life of its own, the plane jolted upward and the gravitational forces reached 17.3 G’s, knocking Leeward unconscious. The plane had been modified with used screws and bolts, which failed within seconds of the plane’s initial pitch higher into the air. Then, the plane plummeted to the ground and right into the spectators and sent debris flying into the crowd.

The NTSB concluded that the weak screws and questionable modifications contributed to the flutter in the first place. The NTSB pointed out that while Leeward took risks as a stuntman and racer, the crowd reasonably believed that the organizers had assured their safety. As early as April of this year, the NTSB released recommendations to the FAA, the Reno Air Racing Association, and the Unlimited Division of the National Air-racing Group, which all had a hand in the event. As of August 22, all three entities accepted the NTSB’s recommendations. The recommendations to the racing groups were:

• Require aircraft owners to provide an engineering evaluation for aircraft with any major modification

• Evaluate the design of the course and safety areas to minimize near and potential conflicts with spectators and make necessary changes to the course

• Relocate the fuel truck away from the ramp area and in front of any area where spectators are present; install barriers more substantial than those currently in place

• Provide high g training to pilots

• Evaluate the feasibility of requiring pilots to wear g suits when participating in the race

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  Although you might not know it from the many reports of drunk driving in the news (such as the tragic story of 19 year old Eduardo Perez who recently died after being hit by a drunk driver), most people know the risks of driving under the influence of alcohol. However, the risks of driving after taking prescription and over the counter medication are less well known. For instance, the National Highway Traffic and Safety Administration found in 2009 that 18 percent of fatally injured drivers had at least one illegal, prescription or over the counter drug in their system. Unfortunately, there is no reliable data that looks the connections between the effects of legal drugs on the ability to drive, apart from alcohol.

It is harder for consumers to assess the risk of driving after taking medications, because for many people taking medication and driving are both daily activities. There are as many medications as there are ailments, and each affects the body’s chemistry differently. These wide variations make it less obvious to drivers whether they are engaging in reckless driving or not.

For that same reason, the states, including California, have not set a limit on the level of drugs in the blood system while driving. Although, California Vehicle Code section 23630 does specifically state “The fact that any person charged with [a DUI] . . . is, or has been entitled to use, the drug under the laws of this state shall not constitute a defense . . . .” A 2010 New York Times article explains that law enforcement is much less likely to cite drivers for reckless driving when it appears they are impaired from prescription drugs rather than alcohol because of the lack of a legal limit. As a result, District Attorney’s tend to pursue criminal charges only when extremely high doses of legal drugs are involved in an accident or if a driver mixed multiple drugs. However, the failure of a District Attorney to file suit in criminal court does not prevent an accident victim from suing for damages in civil court stemming from negligent driving after taking prescription or over the counter drugs.

Many drugs affect the ability to safely operate heavy machinery or complete complex tasks, such as driving. Examples of drugs that make drivers susceptible to drowsiness are: cold medications, pain relievers and, of course, sleeping pills (even the morning after). Anti-histamines found in allergy medications can slow reaction time. Conversely, diet pills and other stimulants are associated with aggressive and reckless behavior on the road. Anti-depressants and anti-anxiety medications are associated with drowsiness and also trouble paying attention to the road and keeping to one lane. Anti-hypertensive medications can cause fatigue and dizziness. The website Medscape lists additional medications, common doses, and their effects on driving.

The answer to the question, “Should I take my medication and drive?” is often ambiguous. The Federal Drug Administration recommends that you consult with your doctor in order to be completely informed about the risks. Your doctor can also work with you to adjust the dose of your medication or the time which you take your dose to work better with your driving schedule. Self-monitoring is key to safe driving in any situation, but being aware of particular medication’s affect on your body is extremely important because every person is different.
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The Fourth of July is an activity packed holiday, from the typical summer barbeque to the after dark fireworks display. Of course, the temptation is too great for many celebrators and many neighbors hear the blast of small scale fireworks off and on all week. Fireworks have the aura of magic about them, but are bit like the magic of the Sorcerer’s Apprentice. When the unprepared or immature set off fireworks, they could let the magic get out of control, which gets them, or others, burned.

It is important to remember that fireworks are explosives in every sense of the word. Fireworks are made of a shell with a fuse that contains explosive material. Smaller fireworks may consist of paper or cardboard wrapped tightly around black powder. Urban cities such as San Francisco, Oakland, and San Mateo have banned the sale and use of fireworks all together by non-professionals. Close quarters ramp up the hazard for fires and injury and make it a matter of public policy to crack down on violators. Other Northern California cities like Dublin, Union City, Sacramento, and St. Helena allow residents to set of so-called safe and sane fireworks. Safe and sane fireworks include sparklers and spinners and are characterized by the fact that they do not fly or explode.

Illegal fireworks, for example the notorious M80, are responsible for many holiday related injuries because they are more powerful and more unpredictable than safe and sane fireworks. Illegal fireworks are unregulated and therefore do not undergo quality control. Illegal fireworks have been known to explode prematurely while still in the amateur pyrotechnician’s hands.

In general, fireworks should be handled very carefully at a safe distance away from spectators and especially children. If you are having your own show, never relight a dud firework as it has already proven to be unpredictable and could explode without warning. Carefully place used fireworks in a bucket of water to prevent unwanted explosions. Of course, it is never advisable to handle fireworks under the influence of alcohol as it severely impairs judgment.

Sparklers may seem like the most innocuous of fireworks, but actually the slow burning wands can reach temperatures of 1800 degrees Fahrenheit. Children are more susceptible to burns and eye injuries from fireworks and sparklers are a big culprit.

The American Pyrotechnics Association released a chart showing fireworks related injuries from 1974-2006. Unfortunately, the number of injuries each year has stayed fairly constant, fluctuating between 8,000 and 12,000 injuries every year. In 2006, 9200 injuries were reported. The good news is that although the base numbers have not declined much, the number of injuries per pound of fireworks consumed by Americans has actually decreased drastically. In other words, there are a lot more fireworks being shot off on Fourth of July, but no more injuries than in past years.
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The deadly San Bruno pipeline explosion in September of 2010 drew attention to PG&E’s policies and procedures for monitoring its infrastructure and implementing strategies to protect public safety. The National Transportation Safety Board formed an Independent Review Panel to investigate the San Bruno blast, which found the pipeline that exploded had multiple seams with lengths of pipe that were taken from pre-1950 inventory. A 2010 audit of PG&E’s compliance with state regulations found that it was not allocating sufficient resources to assess the integrity of its infrastructure. PG&E also took advantage of an exception to the rules to delay critical repairs and other required activities.

A second example is that of the 20 gallon spill of “Chevron Clarity” that occurred at Coyote Reservoir last January. The spill prompted the Santa Clara District Attorney’s Office to send a complaint letter to the Santa Clara Water District in March of this year. The letter brought up concerns about multiple leaks of hydraulic oil into the reservoirs it preserves. The Santa Clara Water District may face $25,000 dollars in fines for water pollution.

For its part, the Santa Clara Water District admits that around 107 gallons have been leaked since 2001 in eight separate incidents. However, it contends that all leaks dissipated into the water system with no ill-effects. It also issued a statement stating that it routinely replaces accessible leaky valves. The Santa Clara Water District acknowledges that it needs to replace aging valves that are placed at the bottom of the reservoirs. The District will need to drain most of the water from the reservoirs in order to safely replace the valves. Therefore, the Santa Clara Water District has been waiting for a scheduled seismic retrofitting of reservoir dams to replace the poorly functioning valves, because it will have to drain the reservoir for the retrofitting anyway. The District is reportedly working the District Attorney’s Office to come to some sort of agreement with regards to the leaks.

ABC news reports about another example. In 2011, the San Francisco Water District’s hired contractor started to replace current water meters in San Francisco homes with wireless water meters. Unfortunately, the work, which requires the water to be turned on and off, puts pressure on older plumbing systems. Water that gushes back through the pipes can damage pipes that are already in poor condition because of age. Since the work started, 69 cases have been reported of broken pipes after the contractor finished replacing the meter. Since the pipes are located on private property the owner is responsible for the repairs which cost upwards of $2,000. In the case of John Lubimir the cost was $5800 to repair the water pipes on his property. The contractor, Grid One Solutions, insists the most of the broken pipes were old and probably previously damaged. The contractor tells affected residents the breakages are not its fault, that it is upgrading the meters as a service, and that the homeowner is completely responsible for their pipes. Meanwhile, Supervisor Scott Weiner has complained that the installation of the wireless water meters is mandatory, so homeowners really have no choice. The San Francisco Water District reviews each claim individually, and usually turns it over the the contractor in this matter.
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Delaware bankruptcy judge, Kevin Gross, approved an agreement between the family of Bryan Stow and the L.A. Dodgers on March 19, 2012. The agreement provides that Bryan Stow’s family will be able to continue their suit against the Dodgers for negligence once the club completes its bankruptcy proceedings and is sold to a new owner. Initially, the club tried to include the pending lawsuit in its bankruptcy, taking advantage of the protections afforded by bankruptcy to avoid monetary liability. The Dodgers organization argued that the lawsuit would make it too hard to sell the team, but facing criticism it agreed to allow the claim as long as the Stow family agreed to sue only the team’s insurance provider and not Frank McCourt, the current Dodgers owner.

Sports stadiums have been subject to the same liability as other premises owners since the late 1950’s, with the caveat that a spectator that has notice of the dangers inherent to a specific sport waives some of that liability. For instance, a baseball fan probably knows that fouls are hit into the fan area and assumes that risk by sitting in the stadium. In the Stow case, Bryan Stow had a reasonable expectation that he could attend a baseball game at Dodger Stadium without fearing an attack, at the very least because the stadium provides security and ejects rowdy spectators.

Since the injury was caused by a third-party, in order to bring a successful suit the Stow family will have to argue that the Dodgers negligence contributed to the attack and that the Dodgers could have reasonably foreseen such an attack. The plaintiff’s complaint argues that the Dodgers were negligent because the club cut security to save money for its upcoming bankruptcy and that the lighting in the parking lot where Stowe was beaten was inadequate. The complaint also alleges that the Dodgers had knowledge that there was a criminal element in the spectators and that the stadium encouraged the over-consumption of alcohol during the highly charged opening game, which substantially contributed to the beating.

Slips and falls are by nature unexpected- but the causes are often predictable. Some of the more common reasons for falls include pitfalls, slippery surfaces, obstructions of walkway areas, and stairs. Stairs are one of the most common culprits because they have multiple surfaces on which to slip and stepping to the next level forces the body off balance.

The California Uniform Building Code sets out specific requirements for residential and commercial stairs in order to make their everyday use safer. In order to be comfortable for the average human’s height and gait, requirements for stairs are that they be at least 10 inches deep and 4 inches tall, but no taller than 7 3/4 inches. The human brain automatically adjusts to a repetitive walking patter, such as the space between steps. Therefore, the difference between each individual steps’ measurements may not have more than a 3/8 inch variance from the other steps. To accommodate the height and weight of both humans and their belongings, there must be a clearance space above the surface of the stair of at least 6 feet 8 inches and be able to support a 300 pound load.

In addition, all stairs with more than four risers must have a handrail installed for the length of the stairs. Handrails may not obstruct the stairs by more than 3 1/2 inches and they must support a 200 pound load. Stairs that are not enclosed on one or both sides must have a guardrail at least 36 inches tall to protect from falls over the side. City ordinances may have stricter requirements and should be researched as well.

Property owners have a duty to maintain stairways to prevent loose handrails or well-worn surfaces that leave stairs slippery or uneven. If a problem arises, the property owner should put up a warning sign until the problem can be fixed. Stairways should be well lit to increase visibility and prevent potential trips.

Serious falls can result in traumatic brain injury, broken bones, lacerations and contusions, or even paralysis. A slip and fall victim who would like to pursue a civil action in order to recover costs associated with the fall, such as medical expenses and lost wages should do a basic review of California law to determine if the property owner may be liable for injuries sustained. A slip and fall victim may also recover money damages for pain and suffering.

According to Nolo Press, in order to bring a successful action against the entity in charge of stair maintenance a plaintiff must prove one of the following:

• The property owner caused the slippery or dangerous surface or item, to be underfoot.
• The property owner or an employee knew of the dangerous surface but did nothing about it.
• The property owner should have known of the dangerous surface because a “reasonable” person taking care of the property would have discovered and resolved the dangerous situation.

In addition, the defendant may avoid some or all liability if the plaintiff’s own actions or carelessness contributed to the fall.
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