Assumption of Risk Doctrine Applies (Again)...

If you are a fan of bumper cars and other "thrill rides" at amusement parks, be careful.  You may not be able to sue if that extra bumping leaves you with an injury. On December 31, 2012, the California Supreme Court ruled that amusement parks cannot be sued for injuries that occur in rides such as bumper cars, finding that such thrill-seeking carries an "inherent risk" just like playing a sport.  

The issue presented was whether an amusement-park operator must take reasonable, or even utmost, precautions to protect patrons from injuries associated with bumper-car “bumps”?  According to the California Supreme Court, the answer is "No." 

In the case of Nalwa v. Cedar Fair, LLP, a decision filed December 31, 2012, the California Supreme Court ruled that the doctrine of "primary assumption of the risk" barred a plaintiff's claims of injury resulting from a "bumper car" accident.  

Plaintiff, Smriti Nalwa, fractured her wrist on a bumper car ride at the Great America amusement park in Santa Clara.  She then sued the park owner for negligence in not configuring or operating the bumper car ride so as to prevent her injury. The superior court granted summary judgment for defendant on the basis of the primary assumption of risk doctrine, under which participants in and operators of certain activities have no duty of ordinary care to protect other participants from risks inherent in the activity. (Knight v. Jewett (1992) 3 Cal.4th 296, 315-316.) The Court of Appeal reversed the trial court, holding that the public policy of promoting safety at amusement parks precluded application of the primary assumption of risk doctrine, and that the doctrine was inapplicable to bumper car rides in particular because that activity is “too benign” to be considered a “sport.”

The Supreme Court, however, reversed the Court of Appeal, concluding that the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides.  The Court further concluded that the doctrine applied to the ride in that case, even though amusement parks are subject to state safety regulations and even though, as to some rides, park owners owe participants the heightened duty of care of a common carrier for reward.

The Supreme Court decision also gave a useful summary of the history of the "assumption of risk" doctrine and how it developed.  (For those interested, the full Supreme Court decision is available here http://www.courts.ca.gov/opinions/documents/S195031.PDF.)

New CA Vehicle Laws for 2012

New California Vehicle Laws 2012

As Personal Injury Lawyers, and ones who deal with car accidents and the vehicle code on a regular basis, we here at T&H try to keep up with new driving laws as they come into effect, as those new statutes can sometimes significantly affect your case. Though not all of these are directly related to "PI" cases, the following are some of the new code sections or bills that have come into effect as of January 1, 2012, that you all might be interested in.

New Double White Line Law

AB 1105 prohibits vehicles from crossing double parallel solid white lines in California, except where expressly permitted.

New DUI Law

Vehicle Code Section 23579 has been added to the California Vehicle Code, which authorizes courts to revoke a driver's license for 10 years if a person is convicted of three or more DUIs. Motorists may apply for reinstatement of their license with the DMV after five years, if the driver installs an Ignition Interlock Device (IID) in their vehicle.

New Reckless Driving Restricted License Law

AB 520 allows California drivers convicted of reckless driving under Vehicle Code Section 23103.5 to apply for a restricted driver's license prior to the completion of their one-year suspension if they meet specific conditions, such as the installation of Ignition Interlock Device in their vehicle.

New DUI Checkpoint Vehicle Impound Law

AB 353 prohibits law enforcement officers from impounding a vehicle for 30 days at a DUI checkpoint if the only offense is failing to hold a valid driver license.

FDA Warning on Dangerous Weight Loss Supplements

According to a recent report in Consumer Reports (link below), the FDA has issued a warning regarding certain weight loss aids. The 20 different supplements are said to contain sibutramine, the active ingredient in weight-loss medication Meridia, previously found to substantially increase blood pressure and heart rate and also linked to an increased risk of heart attack and stroke. It was removed from the U.S. market in October 2010.

The targeted supplements include:

-Acai Berry Soft Gel ABC
-Advanced Slim 5
-A-Slim 100% Natural Slimming Capsule
-Botanical Slimming
-DaiDaiHuaJiaoNang (also contains phenolphthalein, a solution used in chemical experiments and a suspected cancer-causing agent not approved in the U.S.)
-Dream Body Slimming Capsule
-Fruit Plant Lossing Fat Capsule
-Health Slimming Coffee
-Ja Dera 100% Natural Weight Loss Supplement
-Leisure 18 Slimming Coffee
-Lishou
-Lose Weight Coffee
-Magic Slim Tea
-Magic Slim Weight Reduction Capsule
-P57 Hoodia
-Pai You Guo Slim Tea )also contains phenolphthalein, a solution used in chemical experiments and a suspected cancer-causing agent not approved in the U.S.)
-PhentraBurn Slimming Capsules
-Sheng Yuan Fang
-Slender Slim 11
-Tengda

The Consumer Reports account further notes that the FDA has recommended that the public steer clear of such supplements. We agree. Our lawyers have long advised against using weight-loss supplements because the risky side effects often outweigh the benefits. The supplement industry, unlike "Big Pharma," is largely unregulated and as consumers you have very little protection from public safety regulation (aside from those disclaimers that 'these claims have not been evaluated by the FDA...").

The lawyers at our office have had years of experience in dealing with injuries caused by harmful supplements. If you've experienced health problems from using one of these supplements, feel free to contact our office (951-549-9400) for a consultation, or visit our website for additional information (www.tiedtlaw.com)

(The link to the Consumer Reports post is: http://news.consumerreports.org/health/2011/10/20-weight-loss-supplements-contain-undeclared-drug-fda-warns.html)

Trial Tips-Cross-Examination

With court back logs and the emphasis in litigated matters on "alternative dispute resolution," it seems that trial lawyers just don't get into trial as often as we once did. That could explain, in part, why the "art" of cross-examination has (IMHO) suffered some in recent years. To "stay sharp", I'm always on the lookout for material that allows me to stay on top of my litigation game. In that effort, I came across some trial tips from Judge William Rylaarsdam in a recent CEB publication (link below) that addresses, fairly succinctly, some ground rules for cross-examining a witness in trial that I thought I'd share.

In Mastering the Art of Cross-Examination: Tips from a Judge Judge Rylaarsdam offers useful insights for a successful cross.

Don’t confuse cross-examination with a deposition. The purposes of each are completely distinct: the purpose of a deposition is to find out what information the witness has and nail the witness down to a particular version of the facts, and the purpose of cross-examination is to ascertain the truth of alleged facts.

Consider whether to cross-examine at all. The answer to this depends on whether the witness has testified to anything that injures your case.

Control your own demeanor during cross-examination. When counsel speaks pleasantly and frankly, shows confidence, refrains from acting surprised, and stays focused on the real issues, he or she projects credibility and adds to the credibility of his or her case.

Keep it simple. Always keep cross-examination questions short and simple. Convoluted questions will lead the jury to conclude that you are trying to confuse witnesses rather than to get to the true facts.

Keep it short. A long cross-examination may lead the jury to conclude that the witnesses’ testimony must be of particular significance.

Only ask questions that help you. Never ask a question on cross-examination unless (1) you know what the answer will be, and (2) the answer aids your side of the case.

Avoid open-ended questions. Open-ended questions give the witness too much latitude to answer. They are particularly harmful when asked of an expert witness who will then look toward the jury in a very professorial manner and explain the matter yet again to the dummy lawyer who didn’t get it the first time.

Know when to quit. Always quit while you are ahead. When a cross-examination question elicits a helpful answer, don’t elaborate by asking a further question on the same subject because the witness will likely use those further questions to try to explain away the earlier answer.

Make good use of deposition answers. Having the witnesses’ sworn answer to a question means that you can safely ask that question during cross-examination as long as it advances your position. If the answer is the same as that given during the deposition, then favorable information is before the jury, and if it differs, then you can impeach the witness with the deposition testimony.

Get the court’s help with a recalcitrant witness. Each time the witness gives an evasive answer, politely ask the court to instruct the witness to answer the question. Each time the witness’s answer goes beyond the scope of the question, ask the court to strike the offending portion of the answer and to instruct the jury to disregard it.

To these I would also add "Be Balanced." By this, I mean that in the heat of trial an attorney can get "tunnel-vision" and focus too dramatically on one area, at the expense of others. Even after nearly 25 years of trial experience, I am constantly surprised by at least one "piece" of a case that jurors find important. If you spend too much time on that "one thing" that you thought was key, you may "gloss over" others that jurors may find decisive in your case.

In the end, trial lawyers have to be themselves and "tips" like these should be used as ways to improve what you already do, not replace your style.

(These tips can be found in their original form at blog.ceb.com/2011/10/17/mastering-the-art-of-cross-examination/ )

Recoverable Medical Damages-The Howell v. Hamilton Meats Case

Well, the California Supreme Court has finally spoken on the apparent conflict between the so-called "Hanif Rule" and the long-established "Collateral Source Rule." The Court succinctly framed the issue in its opening paragraph, and provided:

When a tortiously injured person receives medical care for his or her injuries, the provider of that care often accepts as full payment, pursuant to a preexisting contract with the injured person‘s health insurer, an amount less than that stated in the provider‘s bill. In that circumstance, may the injured person recover from the tortfeasor, as economic damages for past medical expenses, the undiscounted sum stated in the provider‘s bill but never paid by or on behalf of the injured person? We hold no such recovery is allowed, for the simple reason that the injured plaintiff did not suffer any economic loss in that amount.

I'll have more on this as I digest the full measure of the 18 page decision.

Howell v. Hamilton Meats Saga

The long-awaited decision in the Howell v. Hamilton Meats case [Howell v. Hamilton Meats & Provisions, Inc. (2009) 179 Cal.App.4th 686, 101 Cal.Rptr.3d 805 (Howell), Supreme Court Case Number S179115] is expected to be published on Thursday August 18, 2011. I will provide my assessment of what that decision means for the future handling of personal injury cases as soon as I can after the decision is available.

The Importance of Jury Trials

There has been a lot of talk in recent years about "tort reform" and attempts by the US Chamber of Commerce (i.e. "big business") to minimize our rights to trial by jury. With this background, I came across this Slate article on the importance of jury trials in our country. The article focuses on the recent high profile cases (one criminal and one civil) of the Casey Anthony murder trial and Janet Leigh Jones' case against Halliburton. It's a good read. (See link below...)

As noted in the article, the framers of the Constitution "understood that trial by crazed mob, by the media, or by the crown, did not produce justice. The jury system was their best guarantee of something to mitigate those powerful forces." As a trial lawyer I have come to embrace jury trials and, at the same time, to live with the "inconsistencies" that they sometimes may generate. Thomas Jefferson said the jury trial was "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution."

Though we each may, through our own personal political, social or moral lenses, disagree with the outcome of certain cases, our system of justice in the US, including the right to trial by jury, is the best in the world, and these rights should be protected, or they will be abridged at our peril.


http://www.slate.com/id/2299039/pagenum/all/