San Francisco Injury Lawyer Blog

Despite Legislation and Regulation, Elder Abuse Remains a Major Problem in California

September 11, 2013 | Gregory J. Brod

California, as in all other states, there are laws in place that were crafted to prevent elder abuse in nursing homes. Unfortunately, however, elder abuse still occurs in this state, and, in spite of some high-profile horror stories of wrongdoing against the elderly in convalescent homes, public advocacy or investigative group studies show that many such cases go unreported or, at best, quickly reviewed and then set aside by regulators.

Shocking Death Foreshadows Key Measure
At least one notorious recent case of elder abuse has been instrumental in prompting additional legislation to help improve the lot of senior citizens in nursing homes. In the wake of the Feb. 26, 2013, case of Lorraine Bayless, 87, who collapsed and then died in a Bakerfield convalescent home after the staff there stated that they could not perform CPR on her, the state Legislature has passed a bill that would forbid employees of retirement homes from not taking such life-saving measures as CPR on retirement home residents. The measure in on the desk of Gov. Jerry Brown awaiting his signature.

Beyond the well-known instances of neglect, however, there are a significant number of cases of suspected violence and alleged misconduct by staff members at nursing homes in California. Worse still, according to a study filed by the Center for Investigative Reporting and KQED that appeared in the San Francisco Chronicle, state regulators are hastily opening and closing probes into suspected elder abuse without ever leaving their desks. According to the report, in 2009, the Department of Public Health ordered department investigators to dismiss almost 1,000 pending cases of misconduct, a move that apparently had been prompted by a ballooning backlog of cases. In the wake of the DPH directive, the overwhelming majority of cases in which abuse or misconduct has been alleged have been closed without the state taking action. Not surprisingly, Sacramento has also significantly reduced the number of license revocations for nursing home employees suspected of abuse and misconduct.

Abuse Comes in Varied Guises, Has Multiple Causes
The causes of nursing home abuse, which can include physical, mental or financial abuse – the most common form of physical abuse suffered by patients are beatings, sexual assaults and forced feedings of food or medicine – are largely centered around a few well-known factors. Typically, abuse at convalescent homes arises from understaffed facilities, overworked employees, stressful working conditions and inadequate training. In many instances these factors result in employee burnout, which, in turn, causes nursing home staff members to lose empathy and patience for the residents of these facilities, and then to manifest itself in the form of neglect or abuse. All convalescent homes receiving federal funds are governed by the Nursing Home Reform Act, which mandates that a nursing home perform an evaluation of each resident and to prepare and execute a customized “plan of care” reflecting the optimum mental and physical treatment for each resident.
Continue Reading ›

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.

As in Other Stadium Falls, Tragedy at Candlestick Raises Premises Liability Issue

September 9, 2013 | Gregory J. Brod

A great game, recreation and good company are usually among the highlights one looks for when attending a sporting event at a stadium. Certainly injury or even death is not something one would expect to happen in such a venue but, as we were reminded by a fan’s fatal fall at a San Francisco 49ers game Sunday, these unfortunate tragedies do occur. And an injury or loss of life suffered by someone attending a sporting event always triggers the question of exactly who is liable for the victim’s misfortune.

Ill-Fated 49ers Fan Was Traversing Pedestrian Walkway
As reported by the San Francisco Chronicle, a 32-year-old man identified as Kevin Hayes of Hayward was walking with his brother outside Candlestick Park before the kickoff Sunday between the 49ers and the Green Bay Packers when he fell from a pedestrian walkway and died from his injuries suffered in the fall. Witnesses said that Hayes appeared to be intoxicated when he fell from the Jamestown Avenue overpass. A toxicology report is pending from the medical examiner’s office.

Sad to say, the death at the 49ers season opener was far from the only fatality that has occurred in recent years at sporting events in the United States. Indeed, according to the Institute for the Study of Sports Incidents, the fatality at Candlestick was one of more than two dozen cases of fans falling at stadiums in this country during the last 10 years. Only last month, a man fell to his death from the upper level of Atlanta’s Turner Field while watching the Atlanta Braves play the Philadelphia Phillies. And one of the more high-profile such incidents occurred in July 2011 when a 39-year-old firefighter fell to his death while attempting to catch a ball that star outfielder Josh Hamilton tossed to him at a Texas Rangers game in Arlington, Texas. In that tragedy, the victim’s 6-year-old son witnessed his father’s demise.

Reasonable Care Required for Safety of Visitors to Sports Events
In all cases involving the injury or death of someone attending a sporting event, the central legal issue raised that is important in determining who is responsible is one called premises liability. The legal theory starts with the premise that when someone enters your property they have a reasonable expectation of not suffering an injury or death. Thus, the property owner has premises liability and is responsible for maintaining a relatively safe environment. Fans attending sporting events are included among the invitees, guests and licensees who are present at a stadium at the consent of the owner and should expect the stadium owner to exercise reasonable care for the safety of such visitors. The determination of whether a stadium owner or other property owner has met the required standard of reasonableness toward fans or other invitees revolves around four main factors: 1) the circumstances under which the visitor entered the property; 2) the foreseeability of the incident that occurred; 3) the purpose or use to which the property is put and; 4) the reasonableness of the property owner/possessor’s attempt to repair a dangerous condition or to adequately warn those who visit the property.
Continue Reading ›

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.
Continue Reading ›

Buckling Up: Are Seat Belts Necessary for School Buses?

September 6, 2013 | Gregory J. Brod

Initially, it may seem as though this is an obvious question-laws requiring seat belts in cars are meticulously enforced in the United States. As a result of education and enforcement, seat belt use in the United States averages to about 86%, ranging from 66.5% in South Dakota, to 96.9% in Washington as of 2012. According to the Center for Disease Control (CDC), seat belts reduce 50% of deaths caused by car accidents. And yet, despite these statistics, a poll conducted by the National Education Association’s NEA Today magazine showed that 53% of respondents favored seat belts on school buses, whereas 47% did not . Given the aforementioned context of seat belt use U.S., these results are not necessarily intuitive. In fact, they open the door a debate about whether or not buses have different safety needs than cars.

In a 2006 Texas bus crash , a school bus overturned resulting in twenty-one injuries and the deaths of two students. Among the injured was a seventeen-year-old girl who was hurled out a window, landing so that her arm was stuck underneath the fallen bus. In yet another accident in February 2012 in New Jersey, a bus carrying twenty-five students collided with a truck resulting in seventeen injuries and one death. What is unique about the latter incident is that New Jersey is one of six states requiring school buses to have seat belts, whereas in Texas, school buses are not required to do so. Federal law requires that any vehicle weighing more than ten thousand pounds (like school buses) is not required to have seat belts as their high inertial capacity makes them less vulnerable to damage in a collision. The decision to include seat belts in such vehicles has been left to the discretion of the states, where the debate ensues.

However, in light of the disproportionately lower statistics associated with bus accidents, most state legislatures and the NHTSA have decided that the cost of installing the seat belts is not a cost-effective investment. According to a 2002 study by the NHTSA, compartmentalization was found to be effective in lowering the incidence of severe injuries, without the heavy costs associated with installing seat belts for which there is a projected loss of 104 to 125 million dollars. In addition, the National Education Association brings an interesting angle to this, explaining that bus drivers are generally opposed to the implementation of seat belts as well, citing that there are significant liability issues that are difficult to control and prove: children could unfasten their seat belts during the bus ride when the driver cannot enforce the rule .

California is one of six states requiring seat belts in school buses, and the only state in the country requiring lap-shoulder belts in new school buses. To resolve the issue of liability that concerns bus drivers, the state’s legislation explains that charges cannot be brought against the driver if a student has improperly fastened his/her seat belt, or does not fasten the seat belt at all. However, the law requires that the passengers are trained on how to use the seat belt, thereby placing a notable amount of personal responsibility for one’s safety. As for the problem of cost, most of California’s schools primarily transport elementary school students and not high school or middle school students. As a result of this, the costs associated with seat belt installation are reduced in proportion to the fewer number of buses in which to install them. Nonetheless, California is unique in this requirement. Most states cite the studies performed by the NTSB and NHTSA as grounds to consider the benefits of seat belts insufficient to warrant the expenditure.

On one side of the debate, school buses are said not to need seat belts on account of their structural design. According to the National Transportation Safety Board (NTSB), school buses have a compartmentalized design that renders seat belts unnecessary. Instead, the tall, cushioned seats that are closely spaced together “effectively lower injuries” experienced by passengers resulting from a violent, forward motion in the case of a frontal collision. In addition, buses are said to be safer because they get into fewer accidents than cars, accounting for only 0.2 deaths per one hundred million vehicle miles traveled, compared to 1.44 deaths experienced by cars for the same unit of miles traveled. Blueford, one of the major manufacturers of buses, points out that children are twenty times more likely to be fatally injured in a car crash on their way to school than they would be on a bus.

However, statistics are not always as clear cut as they seem. A 2002 study by the National Highway Traffic Safety Administration (NHTSA) demonstrated that neither the compartmentalization nor presence of seat belts can independently improve safety. Art Yeager, a school bus safety advocate, points out that NTSB statistics are not a complete representation of the advantages buses may have over cars. In contrast with cars, buses are only on the road 180 days of the year, during the early morning hours whereas cars are on the road all day and all year including the statistically accident prone summer. And noticeably, there are more cars than there are buses on the road possibly explaining why there may be more instances of car accidents than bus accidents. These mediating variables convolute the statistical analysis by the NTSB, and further the debate.

The New Jersey crash presented a unique opportunity for analysis of the effects of seat belts. In the bus crash that occurred in 2012, some students were wearing seat belts, while others were not. Remarkably, the bus had a functioning camera in the interior of the vehicle that captured the events leading up to, and following the crash. This unique set of data was then used by doctors from The Children’s Hospital of Philadelphia to analyze the effects of the impact on the children and compare the relative severity based upon whether or not the child was wearing a seat belt. Even in this analysis however, it is important to keep in mind that because there were different points of impact-when the tractor hit the bus causing the bus to spiral into a pole-a possible challenge in the doctors’ assessment may have been the uneven distribution of force amongst the passengers. Nonetheless, the doctors reviewing the video concluded that the compartmentalized designs of school buses do little to protect a side collision, and that seat belts that restrain both the lap and the shoulder are essential to preventing severe injuries.
Continue Reading ›

Safety Reminders Following Death of a Toddler in an Oakland Parking Lot Accident

September 6, 2013 | Gregory J. Brod

In the course of a day, we can visit several and we rarely think about the time spent in them. They are an in-between place, a necessity that we often rush through on the way to our destination. They are also one of the most dangerous places, posing a particular danger to our community’s youngest members. Parking lot accidents are all too common and parking lot fatalities are all too tragic. As an Oakland parking lot accident lawyer, Attorney Brod recognizes the potential dangers or parking lots and the risk of child fatalities in this under-looked danger zone.

Two Year-Old Hit and Killed By Vehicle Pulling Into Parking Lot

A tragic accident took the life of a toddler in an Oakland parking lot on Wednesday. The Contra Costa Times identified the young victim as Rafael Perez. Two year-old Rafael was playing in the waterfront-area parking lot while his mother sold fruit. According to police, the driver of a pick-up truck was pulling slowly into the lot when he struck and killed the toddler at around 4:15 P.M. The unidentified driver is cooperating with the authorities and neither drugs nor alcohol appear to be involved. The lot is on the 600 block of Embarcadero and situated adjacent to an abandoned furniture warehouse.

Focus on S.F. Firefighter Whose Helmet Camera Filmed Demise of Asiana Airlines Survivor Reminder of Importance of Evidence

September 4, 2013 | Gregory J. Brod

The old adage of “a picture is worth a thousand words” is no more relevant than in the course of a legal investigation and potential litigation. By extension, if a picture’s worth can be measured in the thousands, a video’s value can be exponentially greater in terms of what it might say about facts or issues in legal proceedings. We are reminded of the power of images in the wake of news that footage from a San Francisco Fire Department firefighter’s helmet camera may land him a departmental reprimand. And San Francisco personal injury attorney Greg Brod reminds us of the critical importance of preserving and recording evidence that could prove pivotal to supporting a legal claim one may decide to pursue.

Disciplinary Action Against Firefighter Being Considered
As reported by the San Francisco Chronicle, SFFD Fire Chief Joanne Hayes-White is considering disciplinary action against Battalion Chief Mark Johnson, whose helmet camera filmed the precise moment when a 16-year-old survivor of the July 6, 2013, crash of Asiana Flight 214 at San Francisco International Airport was struck and killed by an airport fire rig. The young woman, who was prostrate on the airport tarmac and covered by fire-retardant foam, died as a result of being run over by the water-carrying fire rig, according to a forensic investigation conducted by the San Mateo County coroner’s office.

According to Chief Hayes-White, the film from Johnson’s camera was not permitted under a 2009 departmental order that disallowed unauthorized video recordings “in the workplace” and at fire stations. The fire chief, whose disciplinary action comes two weeks after the helmet camera footage became public, stated that the privacy rights of victims and firefighters outweighed the value of videos from helmet cameras.

Evidence Falls into Different Categories
The ill-fated Asiana Airlines flight that crashed while attempting to land at SFO this summer will have provided a plethora of evidence that could prove or disprove facts in the airplane accident, not least of which is the abundant debris from the crash. The remains of the Boeing 777 would be considered physical evidence, or that evidence that can be touched. Such tangible evidence would stand in contrast with evidence that is provided orally – testimony from the survivors of the crash, for example. In addition to the matter of whether evidence is physical or oral, an additional question is raised as to whether it is direct, i.e., without need of an inference, or circumstantial, which requires an inference to establish a fact. Pictures or film are considered to be a form of direct evidence, and they can be either direct or circumstantial. And in the case of a video that shows an alleged act being carried out, a judge and jury could be staring down the barrel of a proverbial smoking gun.

In addition to the important questions of defining and classifying evidence, sometimes a legal proceeding involves the serious matter of whether there was spoliation of evidence. Spoliation of evidence is defined as the withholding, hiding or destruction of evidence to a legal proceeding, which is a criminal act. Spoliation is also considered a separate tort in many states.
Continue Reading ›

Crash Kills Two Women in San Jose, Police Looking for Suspect After Declining to Pursue for Prior Violations

September 4, 2013 | Gregory J. Brod

Every situation, including every accident, is unique. In our work as a law firm for Oakland car accident victims, this lesson is reinforced with every case we take. This holds whether the case gives rise to civil personal injury or wrongful death claims, or both. Often, facts are complex and multiple factors played a role in a tragic outcome. We are committed to examining all facts, even if some questions are hard to ask, and uncovering the decisions that led to a crash. This commitment protects our clients and the public at large, helping to ensure victims are compensated and future crashes avoided whenever possible.

CHP Spokesman on Fatal San Jose Crash

An accident that occurred during the early morning hours of Monday September 2, written about by The Oakland Tribune, left two women dead and police searching for the man responsible. According to California Highway Patrol (“CHP”) spokesman Chris Falkowski, at approximately 3:16 A.M. on Monday September 2, two CHP officers spotted a 2004 silver Mercedes sedan weaving and speeding north on Highway 101. The patrol officers followed as the car took the Brokaw Road-First Street exit. At the end of the off-ramp, the officers turned on their emergency lights. While the sedan initially appeared to be preparing to pull on to the shoulder, the driver then accelerated and ran through a red light before turning left on North First Street.

On Labor Day San Francisco Personal Injury Lawyer Reflects on Workers’ Compensation, Workplace Safety

September 2, 2013 | Gregory J. Brod

There are multiple reasons for workers in California to be somewhat pleased this Labor Day. For one thing, the number of Californians in nonfarm and salaried employment continues to grow while the state’s unemployment figure remains well below its double-digit recession high, according to statistics compiled by the U.S. Bureau of Labor Statistics. The BLS numbers also show sustained growth in employment in key sectors of the Golden State’s economy, including construction, trade, transportation, utilities, finance, professional and business services, education, health care, and leisure and hospitality.

Workplace Deaths Down in California
While the employment landscape has improved in California, one might think that the opportunities for workplace injury or death would increase. However, according to a report in the Orange County Register, the opposite trend has occurred in the state, at least with respect to workplace fatalities. In 2012 there were 339 workers who died on the job in California, down 13 percent from the 2011 total of 390, and well below the recent high of 537 workplace deaths set in 2006. The improving numbers have been recorded in California despite the fact that one in three workers in the state continue to be employed in construction, manufacturing, and trade and transportation, three often dangerous industries.

California’s relatively strict workplace safety regulations may very well have played a role in reining in the number of deaths of workers on the job and allowing the state to record a lower than national average per-worker death rate. The Golden State’s figures stand in stark contrast to states with a relatively laissez-faire attitude toward businesses. Indeed in 2012, Texas – a state with few business regulations – once again held the dubious distinction of reporting the nation’s highest number of workplace deaths at 531, a figure that was 23 percent higher than the year before and one that gave the Lone Star State a per-worker death rate more than double that of California.

Workers Face Array of Potential Sources of Harm
In California, as in most states, workers who are injured or killed due to incidents that transpire during the course and scope of their employment are covered for their injuries by workers’ compensation. As a form of strict liability, workers’ compensation essentially is a no-fault system established by the state in which contributory negligence is not a factor – a legitimate workers’ compensation claim must be covered. And the gamut of injuries suffered on the job is a wide one, including all manner of construction accidents, accidents involving motorized equipment, slip-and-fall injuries, chemical burns, lung damage from inhalation of chemical vapors, hearing loss from loud noises or vibrations, carpal tunnel syndrome, etc.

While workers’ compensation laws have largely precluded lawsuits between injured employees and their employers, a worker who has been hurt on the job may still be able to file a lawsuit against a third party who may have caused or contributed to the worker’s injury. These third-party actions usually involve firms whose services have created unsafe working conditions or those that manufactured a defective product that was instrumental in the worker’s injury.
Continue Reading ›

Texting While Driving: A New Twist Out of New Jersey and Increased Efforts to Crack Down on Distracted Driving

September 2, 2013 | Gregory J. Brod

On January 1, 2009, California’s wireless communication law (V.C. Section 23123.5) made it a code infraction to write, send, or read a text message while driving unless it is done on a voice-operated and hands-free mode. As a San Francisco car accident law firm, we are all too familiar with the terrible costs of texting while driving, a form of distracted driving that kills far too many and leaves others with catastrophic injuries. There is an on-going debate about how our state and our nation can best fight this continued threat. As a recent CNN article illustrates, a New Jersey appeals court recently suggested one new route for battling the texting and driving menace. The new liability target? People who are texting someone, knowing that the other person is driving at the time.

The Facts and Procedural History

During September 2009, 18 year old Kyle Best was driving along a rural highway in his pickup truck. Court documents reveal that he was also texting with Shannon Colonna, 17, at the same time. The teens were dating and the pair had exchanged 62 text messages throughout the day. Records show that a mere 17 seconds of sending Colonna a text, Best was using his phone to call 911 and report a gruesome scene. Best, presumably distracted by the texts, had drifted into the oncoming lane of traffic and crashed head-on into a motorcycle. David Kubert and his wife Linda were aboard the blue touring motorcycle when the truck hit. The collision nearly severed David’s left leg and left Linda with a shattered left leg, her thighbone sticking out from underneath her skin. Both legs were lost. During the aftermath, Colonna sent Best two additional messages.