Negligence

Scrap Metal Fire Extinguished, But Noxious Effects May Linger

November 12, 2013 | Gregory J. Brod

The smoke billowing from a fire Sunday at a scrap metal recycling plant in Redwood City was so big that a health advisory was issued urging residents of three counties to shelter in place. But while the blaze has now been brought under control and authorities have canceled the health advisory, toxic tort attorney Gregory J. Brod suspects that those who live in the zone impacted by the conflagration’s fallout may very well have reason to be concerned about their health.

Foul Air From Fire Detected Through Much of Bay Area
According to the San Francisco Chronicle, the fire began in a pile of scrap metal at the Sims Metal Management yard, which is close to the Port of Redwood City, at approximately 1 p.m. Sunday. At least 50 firefighters were called upon to subdue the blaze until it was declared officially extinguished just after 7 a.m. Monday. In the interim, though, due to the voluminous plumes of smoke and foul air fire officials advised residents of San Mateo, Santa Clara and Alameda counties to remain indoors overnight with their windows shut. The smoke was so bad that people from as far away as San Francisco and Oakland reported smelling it. Even though some residents of the area still reported lingering smoke and bad air quality on Monday, the shelter-in-place precaution has been deemed to be no longer necessary.

To put the fallout from the blaze in a more disturbingly comparative context, air quality officials recorded the release into the air of as much as 114 micrograms of particulate matter per cubic meter during the fire; the federal standard for unhealthy air is a maximum of 35 micrograms of particulate matter per cubic meter.

Numerous Complaints Filed Over Malodorous Smoke
Not surprisingly, the Bay Area Air Quality Management District has already received 30 complaints Monday stemming from the fire – even though the blaze has been contained – according to KTVU. As one would expect, people with respiratory and other health problems would be among those most severely impacted by the noxious smoke.

Officials are conducting an investigation into the cause of the fire, and Sims could be facing fines of up to $10,000 per violation, per day. It’s worth noting that the company has been in trouble before over a fire, as in 2007 Sims was slapped with a $20,000 fine for a blaze at its Redwood City plant, and the firm has had fires at facilities in Hayward and San Jose. In addition, the federal Environmental Protection Agency has investigated the company for polluting San Francisco Bay.
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Tragic Death of Sonoma County Teenager Spurs Litigation

November 5, 2013 | Gregory J. Brod

One of the more tragic cases of mistaken assumptions occurred last month in Sonoma County when a sheriff’s deputy shot and killed a 13-year-old boy whose replica gun the deputy thought was a genuine assault rifle. And now, in a development that’s not surprising to Bay Area wrongful death attorney Gregory J. Brod, the family of the teenager has filed a lawsuit against the Sonoma County Sheriff’s Office.

Attorney: Deputy Thought Toy Gun Was Real
According to the San Francisco Chronicle, the family of Andy Lopez Cruz filed a lawsuit Monday in U.S. District Court in San Francisco, claiming that Sonoma County Deputy Sheriff Erick Gelhaus should have recognized that Andy’s replica AK-47 was a toy and not the real thing when on October 22 he fired eight rounds at the teenager after ordering him to drop his gun. Gelhaus has said through his attorney that he thought the rifle was real and that his life and the life of partner were threatened. The deputy realized that the gun was an air gun that only shot plastic pellets after Andy had been mortally wounded, according to the Sheriff’s Office.

The lawsuit names both Gelhaus and Sonoma County as defendants and seeks unspecified damages. On the face of it, the case has the markers of a wrongful death lawsuit, but the attorney for the boy’s family raised another issue when he stated that the deputy made inappropriate assumptions due to the fact that he was patrolling a largely Latino neighborhood near Santa Rosa, noting, too, that the Lopez Cruz family is Mexican-American. Indeed, the FBI has launched an independent investigation to find out whether the 13-year-old’s civil rights were violated. The Santa Rosa and Petaluma police departments and the Sonoma County district attorney are all conducting their own probes into the tragedy.

State Statutes Govern Wrongful Death Cases
Insofar as wrongful death as a cause of action is concerned, the jurisdiction in which the alleged tort occurred determines which statute will apply, with every state having its own wrongful death statute. California’s wrongful death statute, beginning with the Code of Civil Procedure Sec. 377.60, spells out who would have standing to bring a lawsuit for “the death of a person caused by the wrongful act or neglect of another…”

Typically, the factual pattern of a wrongful death action follows from the tortfeasor committing the tort against the victim, which results in the death of the victim as a result of the tortfeasor’s actions. As a result, the victim’s survivors sue the tortfeasor for wrongfully causing the victim’s death. The deceased party’s claim passes on to his or her family, with a state’s survivor statute permitting the victim’s relatives to seek damages based on the wrongful death cause of action.
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D.A.’s Decision on Firefighters in Asiana Crash Puts Focus on Good Samaritan Law

October 18, 2013 | Gregory J. Brod

When one surviving passenger from an ill-fated Asiana Airlines jumbo jet attempting a landing at San Francisco International Airport ended up on the tarmac and then was struck and killed by a San Francisco Fire Department fire truck on July 6, the tragedy ranked as one of the more bizarre developments of the crash landing that claimed three lives. And now San Mateo County’s district attorney has announced that the firefighters involved in the response to the airplane crash will not be criminally charged in connection with the death of the person who was run over and killed, but San Francisco airplane accident attorney Gregory J. Brod would caution that the decision does not address the question of any potential civil litigation.

Factors Included First Responder Reports, Videos and Autopsy
As reported in the San Francisco Chronicle, San Mateo County District Attorney Steve Wagstaffe on Friday declared that his office would not file criminal charges against the SFFD firefighters whose fire truck hit and killed Chinese student Ye Meng Yuan, 16. Ye somehow ended up on the tarmac after the crash landing of Asiana Airlines Flight 214 and was still alive but under a foot-deep layer of fire-retardant foam when she was struck by the fire truck. Wagstaffe said that his office had opted not to file charges against the firefighters after considering reports from police, firefighters and other first responders, footage from numerous video recordings, as well as the findings of San Mateo County Coroner Robert Foucrault. The coroner’s autopsy found that Ye died of multiple blunt-force injuries that were consistent with being struck by at least one motor vehicle.

Wagstaffe’s office had jurisdiction concerning the accident because of SFO’s location in San Mateo County, and Wagstaffe said that Ye’s death “was a tragic accident that did not involve any violation of our criminal laws.”

Civil Litigation Still Being Considered
While the SFFD firefighters are now out of jeopardy when it comes to criminal charges, the Ye family attorney is considering filing a civil lawsuit under the claim that the girl’s death was “completely avoidable,” and that the firefighters allegedly knew that she was outside the airplane and in the midst of the firefighters before they sprayed the foam on the ground and basically neglected her.

Any defense of the firefighters involved in the first-response mission surrounding the Asiana Airlines crash against a civil lawsuit will largely rest on California’s version of what are known as Good Samaritan laws. And that relevant code, California Health and Safety Code Section 1799.102, will offer solid immunity grounds for the firefighters:

No person who in good faith, and not for compensation, renders emergency medical or nonmedical care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission.

However, while the firefighters may be in the clear legally, the doctrine of sovereign immunity would have to apply to remove their employer – in this case, the SFFD – from legal crosshairs. A key authority on the matter of sovereign immunity – whether private parties can sue the government for torts committed by its officers or agents – is California Government Code Sec. 815.2:

(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his personal representative.
(b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.
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Drunken Driving by the Numbers: a Sobering Set of Statistics

October 11, 2013 | Gregory J. Brod

The warning not to drive a motor vehicle while under the influence of alcohol is probably one of the highest-profile messages that we hear from law enforcement and other government agencies, public officials, and interest groups concerned with the problem. Our San Francisco automobile accident law firm often finds that the foregoing message has not been heeded by one or more of the parties in many of the cases it handles. And repeated news accounts of deadly DUI accidents as well as statistics show that this simple bit of sound advice is still lost on far too many people.

Because the advice of not driving a motor vehicle while under the influence of alcohol has become almost like a mantra, one would expect that this message should resonate most emphatically with the law enforcement officials who often promulgate it. However, public officials or even the peace officers who are entrusted with enforcing DUI laws can find themselves arrested for drunken driving. A unsettling example of this problem was detailed in the San Francisco Chronicle on Friday, when the newspaper reported that an off-duty San Francisco Police Department sergeant was arrested on suspicion of drunken driving and hit and run after he allegedly slammed his own vehicle into a parked car in San Francisco’s Sunset district Tuesday night. The police officer who was arrested, Sgt. Thomas Haymond, 52, is a 22-year veteran with the SFPD. A witness reported the collision, and police tracked a trail of of debris from the crash scene to Haymond’s home.

The statistics on drunken driving in the United States, unfortunately, continues to be a messy trail of facts, including these compiled by the national organization Mothers Against Drunk Driving:

Almost every 90 seconds, a person is injured in a drunken driving crash.
In 2011, 9,878 people died in drunken driving crashes, or one every 53 minutes.
Every day in the United States another 27 people die as a result of drunken driving crashes.
The typical drunken driver has driven while under the influence of alcohol 80 times before getting arrested for the first time.
Fifty to 75 percent of convicted drunken drivers continue to drive on a suspended license.
Drunken driving costs the United States $132 billion a year.

The impact of drunken driving isn’t limited to the motorists involved in automobile crashes, but also pedestrians and bicyclists. According to the Bureau of Transportation Statistics, in 2010 alcohol was a factor in 2,020 – or 47.2 percent – of pedestrian fatalities and 209 – or 33.8 percent – of pedal cyclist fatalities. However, the statistics on DUI-linked accidents are not all grim, as the BTS suggests that the application of so-called Zero Tolerance Laws may have been a factor in causing the number of alcohol-related fatalities in the United States to drop from 50.6 percent in 1990 to 42 percent in 2009.
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Questions Raised After Missing Patient Is Found Dead at S.F. General Hospital

October 9, 2013 | Gregory J. Brod

One doesn’t normally expect to sustain personal injury when checking into a hospital or other medical facility, but unfortunately a significant number of patients are wrongly harmed or die every year while receiving medical care in the United States. And the perplexing death of one San Francisco hospital patient has left questions unanswered, including whether medical malpractice was involved.

Medical Examiner Investigating Cause of Death
As reported by the San Francisco Chronicle, the body of Lynne Spalding, 57, was found by a San Francisco General Hospital employee in a stairwell about 10 a.m. Tuesday. As shocking as the discovery of the body of the mother of two and native of England was, the fact that Spalding was reported missing from the hospital more than two weeks before adds to the bizarre nature of this story. Spalding was last seen at SFGH on the morning of Sept. 21, two days after she was admitted to the hospital for complications resulting from an infection, and she disappeared from her room during a scheduled check by hospital staff on that day. Spalding’s friends have speculated that she may have been disoriented as a result of medication for her condition, and the San Francisco medical examiner’s office is attempting to determine the cause of her death.

While the exact cause of Spalding’s death remains to be determined, one thing that is certain is that SFGH had a duty of care for her and would be responsible for any incompetence on the part of hospital staff that led to her injury or death and that any such negligence would be the basis for a medical malpractice lawsuit. Typically one of the questions involved in a medical malpractice lawsuit against a hospital is whether the attending physician or physicians of the harmed patient is or are considered hospital employees or contractors, a factor that may impact the hospital’s liability.

Medical Errors Growing Problem in United States
The tragic death of Spalding stands out as grim example of when things go wrong at a hospital and may very well have been avoidable, but preventable errors at medical facilities include a wide range of never-should-have-happened phenomena, such as sponges left inside surgical patients, administration of improper medications, use of contaminated equipment and other types of mistakes. And it may come as a surprise to many, but medical errors are an increasingly deadly occurrence in the United States.
According to a recent report in Forbes magazine, 1999 statistics showed that 98,000 people were dying every year from preventable errors in American hospitals. However, the magazine goes on to say that a new study reveals that as many as 440,000 – or four times as many – people die from preventable medical errors in the United States. Putting the new numbers in perspective would mean that medical errors are now the third leading cause of death in the United States, more deadly than auto accidents or diabetes but in line behind notorious killers such as cancer and heart disease.

Another disturbing fact that came to light this year concerns the record of hospital care in the San Francisco Bay Area. While Bay Area hospitals generally get high marks for keeping patients alive, at least half of all the region’s medical institutions posted worse-than-average death rates in one or more medical procedure or patient condition in 2010 and 2011, according to a recent report in the San Jose Mercury News. SFGH was among the many regional hospitals that registered worse-than-average death rates in some categories compared with the state average.
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Yerba Buena Island Fire: Reminder of Danger of Fireworks

October 7, 2013 | Gregory J. Brod

A curious twist has surfaced from Sunday’s traffic-snarling fire on Yerba Buena Island as a San Francisco Fire Department official stated that the SFFD received telephone calls suggesting fireworks may have sparked the blaze. There were no reported casualties caused by the fire, but it may surprise people to know that fireworks are responsible for a significant number of injuries every year in the United States, a fact that raises burn injury, products liability and negligence issues thatSan Francisco attorney Gregory J. Brod has experience with.

Sunday’s fire on Yerba Buena Island erupted about 8 p.m. near the Bay Bridge’s western span and was contained in about two hours. However, eastbound commuters, many of whom were returning home from a San Francisco 49ers game, were stuck in traffic on the bridge after the fire prompted the shutting down of two eastbound lanes while firefighting crews battled the blaze. Dry, warm weather may have helped provide more ideal conditions for the fire, but reports suggest that another combustible element may have been a factor.

“We had some initial reports from telephones that there could have been some fireworks involved,” said SFFD Assistant Chief Matthew McNaughton, according to KGO-TV. SFFD firefighters are in the process of investigating the fire and what triggered it.
Regardless of the final outcome of the SFFD’s investigation, some facts are on the record about the perils of fireworks, according to statistics from the National Fire Protection Association and the National Council on Fireworks Safety, including the following:

Every year in the United States there are 9,300 serious injuries caused by fireworks, with an average of four deaths due to fireworks.
Forty percent of all fireworks-linked injuries in the United States are caused by illegal fireworks.
In 2011, hospital emergency rooms in the United States treated an estimated 9,600 people for fireworks-related injuries, and fireworks reportedly caused the death of eight civilians.
In 2011, there were an estimated 17,800 reported fires caused by fireworks in the United States, including 1,200 structure fires and 400 vehicle fires that resulted in direct property damage of $32 million. On average, 20,000 fires in the United States each year are blamed on fireworks.
Forty-five percent of injuries caused by fireworks are sustained by children under the age of 14.
On average, every year 400 Americans lose sight in one or both eyes due to fireworks.
In 2010, 61 percent of emergency room fireworks-related injuries were sustained by the extremities of the victims and 34 percent were injuries to the head.

Now-Infamous Motorcycle Road Rage Incident Follows Grim Numbers on Fatalities, Injuries

October 4, 2013 | Gregory J. Brod

While accidents involving motor vehicles are, unfortunately, all too common in the United States and not particularly unusual from a news reporting standpoint, occasionally accidents occur that are so offbeat or even bizarre that they generate sustained public interest, often from across the nation. One such incident occurred Sunday in New York City when a group of motorcycles and a sport utility vehicle had a fateful encounter that has captivated the nation and drawn the interest of San Francisco personal injury attorney Gregory J. Brod.

The incident in question involved a large group of motorcyclists who had gathered in New York City on Sunday for a planned but unauthorized ride that was disrupted by the police, and the motorcyclists ultimately ended up in a confrontation with a family of three in an SUV on the city’s Henry Hudson Parkway. While many details of the confrontation remain to be determined, a video from the helmet-mounted camera of one of the motorcyclists has surfaced on YouTube showing the motorcyclists surrounding the SUV, the two parties slowing down, and the SUV hitting one of the motorcycles from behind. After halting, the SUV suddenly accelerates forward, striking several of the motorcyclists as it tries to flee. One of the motorcyclists was seriously injured and remains in a hospital, but many of the remaining motorcyclists give chase to the SUV up the parkway and then onto the streets of the city. Along the way, the SUV briefly stops, and one of the motorcyclists attempts to open the SUV’s door before the vehicle takes off again. Eventually, though, once the SUV exits onto city streets, the motorcyclists manage to encircle the vehicle while it is stuck in traffic, and at least one of the motorcyclists is seen in the video attacking the SUV with his helmet.

The dramatic chase culminated in the beating of the driver of the SUV and, according to the New York Times, the wife of the driver said that she and her husband were terrified when what she called “a mob of reckless and violent motorcyclists” surrounded their SUV after it hit one of the motorcyclists from behind. Their fears and attempt to flee were justified, she said, by the eventual beating of her husband.

The injured motorcyclist has garnered much attention and sympathy, but setting aside liability in this particular incident, his injuries are reflective of a disturbing national trend. According to the Centers for Disease Control and Prevention, deaths and injuries from motorcycle collisions regardless of the cause rose from 2001 to 2008 in the United States. Here are a few of the CDC findings:

Between 2001 and 2008, motorcycle death rates increased 55 percent, with more than 34,000 motorcyclists having lost their lives during that period.
Between 2001 and 2008, the number of nonfatal motorcyclist injuries that were treated in an emergency department increased from nearly 120,000 injuries in 2001 to about 175,000 in 2008, with an estimated 1,222,000 motorcyclists treated in an ED for a nonfatal motorcycle-related injury.

California’s statistics on motorcycle-involved fatal and injury collisions mirrored the national figures from 2001 to 2008, according to the California Highway Patrol. However, the CHP reports that data from 2009 and 2010 show that motorcycle-involved collisions are down significantly in the Golden State. Interestingly and somewhat surprisingly, California is one of only 20 states and the District of Columbia to require motorcyclists to wear helmets, according to the National Highway Traffic Safety Administration. California is also the only state in the nation to officially state that, when done safely, so-called lane-splitting by motorcyclists is legal.
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Dangling Window-Washing Rigs and Cranes: When Things Go Wrong at Construction and Building Maintenance Sites

September 13, 2013 | Gregory J. Brod

Construction or maintenance activities in public spaces carry with them a measure of risk to public safety, and that’s why we have safety regulations in place to help protect not only the workers involved but also residents, workers and other passers-by in the vicinity of such sites. However, as one short but tense incident in San Francisco on Friday and another longer-lasting and more consequential incident nearly a year ago in New York City demonstrate, even the best intentions of regulations may not be enough to stave off potentially devastating accidents related to construction or maintenance work.

Tense Morning in San Francisco’s Financial District
Fortunately for those people who were impacted by Friday’s suspenseful dangling of a window-washing platform in San Francisco’s Financial District, the drama that unfolded didn’t get to the point that anyone was injured. According to a report filed by KGO News, the local ABC affiliate in San Francisco, the window-washing rig was seen to be hanging unsafely from the 41st floor of a 45-story building at 301 Clay Street at 7:02 a.m. As a result, traffic was blocked on Battery Street between Clay and Sacramento streets and several floors of the building impacted by the errant rig were cleared of workers. Understandably, nerves in the neighborhood were on the jangled side until the rig was finally secured when it was pulled over the top of the building at about 10 a.m. No one was inside the rig, and firefighters believe it did not have a secure latch engaged when it started to go astray.

While the Friday the 13th scare in San Francisco ended without anything bad happening, the story in New York City emanating from the collapse of a construction crane in the wake of Hurricane Sandy nearly one year ago has been far more momentous. As the hurricane’s 80-mph fury raged through New York City on October 29, 2012, the construction crane at a 90-story apartment high-rise being built on West 57th Street snapped backward and then began dangling perilously over Midtown Manhattan for the next six days, compelling the city to shut down two city blocks and order the evacuation of thousands of area residents and workers. Residents and workers were allowed to return to the affected neighborhood six days later after the city and the crane owner slowly managed to tether the crane to the building.

Crane Collapse in New York City Causes Legal Fallout
The drama over Halloween week last fall in Gotham impacted far more people for a much longer period than the Friday incident in San Francisco, and it has since triggered legal action. The first of several cases of litigation involved two dentists whose dental practice was in the same block as the ill-fated construction crane and who have sued the crane’s owner for allegedly causing them to lose one week’s worth of business due to the crane mishap.
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Nalwa v. Cedar Fair – The California Supreme Court on Amusement Park Injuries

September 11, 2013 | Gregory J. Brod

Part of the attraction of roller coasters and other amusement rides is getting the thrill of risk and the rush of adrenaline while still having faith that you (and, often, your children) are safe. However, as illustrated by an incident that injured thirteen fairgoers in Connecticut on Sunday, amusement park injuries do occur. Our thoughts go out to the victims, seemingly all children according to a report in the Sacramento Bee. As a San Francisco injury attorney and a lawyer for amusement park injuries in Northern California, Attorney Greg Brod knows that such injuries can range from minor to catastrophic and even fatal. In California, the state’s highest court recently handed down a ruling about these injuries.

Background of the Case

On the final day of 2012, the Supreme Court of California issued an important ruling on the liability of amusement parks for injuries sustained by riders in California. The plaintiff in Nalwa v. Cedar Fair fractured her wrist while riding the bumper cars with her children at the Great America in Santa Clara on July 5, 2005. The trial court granted summary judgment to the park on the plaintiff’s negligence and willful misconduct claims, suggesting the plaintiff did not have a legal claim against the park. The Court of Appeals reversed that decision. In the ruling handed down on December 31, 2012, the state Supreme Court found in favor of the amusement park.

Hit-and-Run Fatality in S.F. Park Yet Another Shocking Personal Injury Incident

September 6, 2013 | Gregory J. Brod

Ask most people to offer a list of activities they would associate with leisure and it’s safe to say that an outing to one’s local park facilities, especially with family or friends, would rank among the likely candidates. It’s therefore hard to imagine that a relaxing day in the park would turn out to be the nightmare that took the life of a Daly City mother spending time with her baby and dog in San Francisco’s Holly Park on Thursday, and one that triggered not only criminal charges but also civil law questions of liability, negligence and wrongful death.

City Vehicle at Center of Tragedy
As reported by the San Francisco Chronicle, Christine Svanemyr, 35, her baby girl, Isa Amalie, and the family dog were spending the afternoon lying on the lawn at Holly Park in the Bernal Heights neighborhood when a Recreation and Park Department truck ran her over and killed her shortly after 2 p.m. Svanemyr’s daughter and dog were unharmed in the incident, according to the San Francisco Police Department, and in addition to Isa Amalie, she leaves her husband, Vegar Svanemyr.

The driver of the Recreation and Park vehicle, Thomas Burnowski, 57, was arrested on suspicion of vehicular manslaughter and felony hit-and-run. It’s not clear whether Burnowski was the gardener several neighborhood residents recall driving recklessly at the park, but the SFPD said an investigation into Svanemyr’s death is continuing. The Recreation and Park Department has placed Burnowski on administrative leave without pay pending the investigation.

A spokeswoman for the Recreation and Park Department stated that the department’s vehicle policy is that employees are not allowed to drive on park pathways, sidewalks, closed roads or the actual park area “merely for convenience purposes.”
“If work requirements necessitate operating a city vehicle on a park-scape or other surface not designed for vehicle operation, utilize a staff person outside the vehicle to serve as a safety watch or otherwise guide vehicle movement,” the Recreation and Park Department policy reads.

Driver Faces Multiple Felony Charges
Whether Burnowski violated Recreation and Park Department policy while driving his vehicle on park land is definitely one issue to consider, but one thing is certain, according to the SFPD: the parks department employee took off from Holly Park after hitting Svanemyr and was detained several blocks away and then arrested – and both manslaughter and hit-and-run is are serious felonies.

Unfortunately, Svanemyr is far from the only American to die as a result of a motor vehicle striking a pedestrian or other nonmotorist, as 5,307 such people died in the United States in 2011, according to the National Traffic and Highway Safety Administration. The NTHSA figure in that category has been creeping up since 2009 after generally falling off since the mid-1970s. The majority of pedestrian deaths as a result of being struck by a motor vehicle in an urban area in 2011 occurred on roads with speed limits or 40 mph or less, according to the NTHSA.
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