Dog Attacks, Lawsuits, California

California Personal Injury Verdicts: Week of November 3, 2014

Dog Attacks, Lawsuits, CaliforniaIn our ongoing series highlighting interesting personal injury jury verdicts in California, I found this case tried in downtown Los Angeles in June and recently reported (Thomas A. Pappas v. Union Pacific Railroad Company, Master Recovery Auto Insurance Auction, et.al Los Angeles Superior Court Case No. BC475219).  The trial involved the following:

Facts of The Case: Plaintiff alleged that on January 8, 2010, he was working for Union Pacific Rail Co.  As he was walking through the rail yard, two dogs from an adjacent property jumped the fence and began chasing the plaintiff causing him to run and jump onto an electrical box.  In jumping up and down from the box, he alleges to have sustained injury including a lateral meniscus tear in his knee and a shoulder injury.

Contentions of the Plaintiff: Plaintiff alleged that defendant, “Master Recovery Auto”, owned the yard where the dogs were harbored and negligently allowed them to escape.

Arguments of the Defense: Master recovery argued that it did not own the dogs and that they were “strays;” that the fence over which the dogs jumped was on Union Pacific’s property and they had an obligation to fix it.  They filed a cross-complaint against Union Pacific over this issue.  Union Pacific argued that the fence was defective in any way (i.e. had an opening in it that needed repair).

Settlement Discussions: Plaintiff made a settlement demand of $500,000 and Union Pacific offered to pay $50,000 towards settlement.  There was no mention of any offers being made by Master Recovery.

Result of the Trial: The jury awarded the plaintiff $600,071.32 as a gross award.  They found Master Recovery to be 90 % at fault and Union Pacific 10% at fault.  Because plaintiff was a UP employee rail worker, Union Pacific was only obligated to pay wages losses under the Federal Employer’s Liability Act (FELA).

Things I draw from this verdict in my perspective as a California personal injury attorney:

California actually has a “strict liability” rule (i.e. automatic liability even absent a showing of negligence) for injuries caused by dogs (see full discussion here).   However, one requirement of the so-called California “dog bite statute” is proving that the defendant was the dog owner.  Obviously, proving ownership of canines can be difficult, especially if they are not registered and are found wandering between two properties such as the case here.  Nevertheless, arguing that the defendant had a duty to act reasonably and breached that duty causing injury to the plaintiff (i.e. a “negligence” theory of recovery) is still available with regard to animal attack cases even absent application of the “dog bite rule”.  For the plaintiff in this case, it was important to have the jury apportion the majority of fault on the third party defendant rather than on his employer.  Federal rail workers are restricted by statute on what they are able to recover against an employer by the FELA similar to the restrictions of workers compensation for work related injuries in general where there is no third party negligence.  All in all, I would say this was a very positive result for the plaintiff in this case.

$9.9 Million Verdict on Trip and Fall in Los Angeles

trip and fall injury claims, Los AngelesJury Verdict Alert reported today (see here) that there was a recent $9.9 Million verdict rendered by a judge in downtown Los Angeles on a trip and fall personal injury claim arising out of an incident at a restaurant in Toluca Lake, CA.  I find several things interesting about this verdict as follows:

Facts of the Case: Plaintiff was a 70 year old female who was a chief publicist for Walt Disney Studios.  As she was headed to the restroom of the D’Cache Restaurant during a lunch, she tripped over a 6 inch single step between the foyer and dining room and struck her head on the doorknob of the bathroom.  Various restaurant employees and management testified that they had tripped on this same lip prior to the incident, although without injury.  Plaintiff’s experts testified that the restaurant had been converted from a residence to a commercial business in or around 2007 but, failed to comply with applicable building codes which required a ramp for areas with changes in elevation of 6 inches or more within the commercial property.

Injuries: Plaintiff sustained damage to her cervical spinal cord, which resulted in partial quadriparesis leaving her with limited use of both her upper and lower extremities. She presented evidence of the need for round the clock home health care assistance.

Damages Presented:

  • Past and future medical: $5,563,635.11
  • Past and future lost earnings: $988,953
  • Past pain and suffering: $2,000,000
  • Future pain and suffering: $8,000,000

Verdict Amount: The court (on a bench trial) issued a gross verdict of  $16,552,588.11 and found plaintiff to be 40% at fault, thereby reducing the net verdict to $9,931,552.87.

Settlement Discussions Prior To Verdict: The restaurant was insured by Farmers Insurance Group for $2,000,000.  The plaintiff made a policy limits demand for this full amount and that demand was rejected by attorneys for the insured (on behalf of Farmers Ins.).

Things that I find interesting about this verdict as a Los Angeles Personal Injury trial lawyer:

There are several things that are interesting about this verdict.  First of all, California law states that an insurance company may be liable for bad faith to their insured if they fail to tender the policy limits based upon a legitimate limits demand and a verdict is later rendered in excess of the policy limits.  Therefore, the restaurant owner (as insured) clearly has a claim for bad faith for the excess exposure of almost $8,000,000.00 in this case.  Interestingly, the restaurant filed for bankruptcy at some time following the incident and this bad faith claim then became an asset of their bankruptcy estate.  The bankruptcy trustee offered to sell their rights to this claim for an initial amount of $7,500, which plaintiffs attorney offered to pay.  This was then “bid up” to over $200,000 by representatives of Farmers Insurance.  In addition, the verdict is now subject to a “Motion for New Trial” and, most likely, an appeal thereafter if the motion is denied.   All of this shows what lengths insurance carriers will go to to keep from paying out a legitimate limits demand.  This claim clearly had arguments as to comparative fault and liability, however, given the severity of the injuries, the $2,000,000 limits demand was within reasonable limits of potential results.

California Personal Injury Verdicts: September, 2014

personal injury verdict, California, Los Angeles, motorcycle accidentCalifornia personal injury verdicts is a continuing series where we highlight personal injury jury verdict awards in the Los Angeles Superior Court and the surrounding areas including Orange County, San Diego and Riverside / San Bernardino.  This episode, I am highlighting a recent motorcycle accident claim that went to trial in downtown Los Angeles (Stanley Mosk Courthouse).  The facts were as follows:

Facts of the Case: On July 18, 2011, the plaintiff was traveling on his motorcycle going northbound on Baldwin Avenue in the City of El Monte, CA.  The defendant (driving an automobile) pulled out of a gas station parking lot causing the motorcyclists to swerve, loose control and crash with the bike landing on top of him.  The case went to trial on July 9, 2014.

Legal Contentions of the Plaintiff:  Plaintiff (the biker), argued that defendant (motor vehicle operator), failed to make a prudent entry onto a highway, failed to see the motorcycle, and caused the wreck.  Plaintiff contended that defendant was negligent “per se” in violating several California Vehicle Codes as follows:

  • California Vehicle Code 21804(a): Requires all partied intended to enter a highway to yield the right of way to any oncoming traffic prior to entry.
  • California Vehicle Code 21658(a) and 22107: Requiring observation and waiting for vehicles to be within a reasonable safe distance prior to attempting to turn right or left upon any roadway or highway.
  • California Vehicle Code 22108: Failure to signal prior to making a turn.

Legal Arguments of the Defense:  The defendant argued that the incident was caused by the plaintiff’s unsafe speed, inattentiveness and/or failure to properly apply his brakes.

Injuries Claimed by Plaintiff: Plaintiff’s most significant injuries included a right knee tibial plateau fracture and a left ring finger distal phalangeal shaft fracture.

Settlement Discussions of the Parties: The defense made a pre-trial offer of $137,000 by way of a California Code of Civil Procedure section 998 “Offer to Compromise”.  This was rejected by the plaintiff.

Result of Trial by Jury: The trial lasted seven days with both sides presenting both medical expert witnesses (Orthopedists) and Accident Reconstructionists.  The jury deliberated a mere five hours and came back with a total verdict of $1,120,773.00 broken down as follows: (1) $9,704 for past loss of earnings; (2) $16,000 for future loss of earnings; (3) $56,969 past medical expenses (based upon a “Howell” calculation [i.e. what was paid by plaintiff’s health insurance provider]); (4) $200,000 for future medical expenses; (5) $8,100 for past “attendant care”; (6) $350,000 for past non-economic damages and (7) $480,000 for future non-economic damages.

Analysis by Los Angeles Personal Injury Attorney, Steven Sweat, Glotzer & Sweat, LLP

There are a few interesting things to analyze on this verdict.  First, it would appear that there was a gross miscalculation on the part of the defense as to the potential amount a jury may award under these facts and with these injuries.  It is clear from the verdict that the jury did not find any comparative fault on the part of the plaintiff (motorcycle rider).  In addition, it would appear that plaintiff’s medical experts provided persuasive testimony as the serious nature of a tibial plateau fracture and the fact that this level of fracture has a lifetime of health consequences including arthritic changes and the potential for future surgeries.  The fact that the defense made an offer that was less than 2 and a half times the agreed upon value of present medical bills, shows that they clearly thought that the jury would not “buy” the arguments regarding future medical expenses and/or that there would be some finding of comparative fault to reduce the award.  One further thing to note is that the venue (downtown Los Angeles Superior Court) is, generally viewed as a favorable venue for plaintiffs as it draws its jury pool from some very diverse areas in and around downtown L.A.

Sources: The foregoing is a summary of facts reported on this verdict by the Los Angeles Daily Journal, Verdicts and Settlements, September 12, 2014.

 

Additional Resources: For further information or assistance with a motorcycle collision claim for personal injuries anywhere in California including Los Angeles, San Diego or the Inland Empire, click here .