As the spring weather heats up, more and more Modesto and Stockton families and ‘weekend warriors’ will be ‘hitting the road’ to their respective recreational destinations. Unfortunately, some of these families will be injured in an car accident. As traffic increases along with the seasonal temperatures, so too does the risk of being involved in vehicle collisions which may cause personal injury. These circumstances necessitate enhanced vigilance with regard to road safety by those behind the wheel or otherwise on the road. Driving defensively and maintaining constant awareness of one’s surroundings while driving greatly decreases the risk of being involved in an accident. The following tips should prove helpful:
Maintaining an appropriate distance from the car ahead
As a Modesto personal injury lawyer, this writer was all ears when he was informed that Toyota was settling a class action lawsuit for 1.1 billion dollars. The settlement may be the largest ever against an automaker according to attorneys representing some of the plaintiff’s. A U.S. judge in Santa Ana, California granted preliminary approval on December 28, 2012 to Toyota’s $1.1 billion settlement of a class-action lawsuit. The lawsuit was brought by Toyota owners who claimed they lost value on their cars due to unexpected, sudden and unintended acceleration. U.S. District Judge James Selna has scheduled a hearing in June of 2013 regarding the final approval of this settlement.
Every year my family participates in Halloween from our Modesto home. We also have a dog in our family so I wanted to post a blog entry about Halloween and dog safety. Halloween can be fun for kids and parents alike. Dressing up like ghosts, pirates, zombies as well as princesses or cowboys can be exciting.Halloween can make some dogs nervous and anxious. When dogs normally protect the home from intruders, the dog owner would applaud them. A family dog confronted by a masked child is a receipt for disaster. A well meaning dog trying to protect the owner by biting that masked stranger can be costly to the dog owner, especially when that masked stranger is an 8 year old child.
According to a 2011-2012 APPA National Pet Owners Survey 62% of U.S. households own a pet. Of those homes with pets, there are 46.3 million homes in the United States with a least one dog. The Centers for Disease Control reports that more than 4.7 million people are bitten by dogs each year. The CDC also reveals that of those 4.7 million people, 800,000 of them seek medical treatment for those bites and half of those seeking treatment are children. There are more than 386,000 people that require medical treatment in an emergency room from dog bite injuries. Sadly, 16 people die each year from dog bites in the United States. Children are the most at risk for injury, specifically those children between the ages of 5 to 9. About 2/3 of the injuries to children ages 4 and younger are to the head and neck region.
In a horrific tragedy, a child was killed in a car accident 30 miles north of Modesto in Stockton, California. The accident occurred on Highway 4, known as the “cross town freeway” which connects Highway 99 and Interstate 5 in Stockton.
The name of the child was not released nor would it be blogged here anyhow. In any event, local news outlets such as the Stockton Record and News 10 in Sacramento have reported two children were in the back seat of a Ford Fusion which was hit from behind by a two truck traveling the same direction on Eastbound Highway 4. Once child, a toddler was killed and the other was placed in critical condition as of Friday night. The California Highway Patrol has also reported that the tow truck driver was not under the influence of drugs or alcohol. The tow truck company is out of Manteca, California, which is located between Modesto and Stockton.
This accident will surely lead to a civil liability on behalf of the two truck driver and the company for whom he works. In light of this tragic event, it is still important to review the legal principles behind accidents such as this.
Before I head to the Modesto or Stockton office, I drop off my daughters at school. There is always lots of traffic, but somehow through the chaos, I am able to get them off to school unscathed. Students in southern California weren’t so lucky when 100 year old California driver, Preston Carter backed his blue Cadillac onto the sidewalk injuring children in front of Main Street Elementary School in South Los Angeles.This blog entry is not going to take a position on whether elderly drivers should or should not be allowed to drive. I wanted to write about the legal issues that rise out of this type of car accident.
The law does not require that older persons refrain from driving. What is required though is that each driver exercise care when operating a motor vehicle. In order for the people to recover for damages sustained by this 100 year old driver, they have to prove the driver acted with negligence when the car ran out of control injuring them. It’s not a question of whether the person is old who is behind the wheel, it is a question of whether the driver acted negligently.
As explained to readers in previous blog posts negligence is simply the failure to exercise the care that a reasonably prudent person would in the same situation. In other words, did the driver proceed the same way other drivers would under the same set of facts? Readers are likely to remember that there are five elements to negligence (1) Duty (2) Breach of Duty (3) Cause in Fact (4) Proximate Cause (5) Harm or Damages.
Assuming Mr. Carter failed to stop as he backed he car onto the sidewalk where pedestrians were located, the question becomes, would a ordinary driver act the same way that Mr. Carter acted under those circumstances? The answer is a resounding no. An ordinary driver in those same circumstances would have not continued to back his car into pedestrians, plain and simple. Mr. Carter owed a duty of care while operating his vehicle and he did not exercise care. In other words he breached the duty he owed the community. 11 people where injured, including children that would not have been caused unless they were ran into by the car driving by Mr. Carter. Lastly, those who were hit were absolutely injured and many were put into the hospital. Therefore the argument can be made that Mr. Carter acted with negligence and could be held liable for such.
Mr. Carter is claiming that his brakes in his car had failed. As reported in the Huffington Post, Mr. Carter told KCAL, “My brakes failed. It was out of control.” For the sake of argument assume that Mr. Carter is correct and his brakes did fail. Under that theory the people injured could potentially sue the car manufacturer or brake manufacture if the accident was caused by some manufacturing defect. An injured person is likely to see a greater recovery if successful by suing a big company because companies have much more money than Mr. Carter would have under his insurance company. That is an assumption but is true for most people driving today. A failure of brakes under this scenario is very unlikely. For the sake of this discussion we will revisit the principals of product liability.
If the readers remember from my earlier posts I have explained that under the California Supreme Court ruling in Greenman v. Yuba Power Products, Inc. (1963) 59 Cal. 2d 57, a plaintiff alleging manufacturing defect only has to show that there is a product that was manufactured and that product failed causing injury. This is known as “strict liability”, meaning that a manufacturer is liable for any damages cause by the failure of their product even if the manufacturer took extraordinary care in producing the product. Continue reading
Summertime is upon us and in Modesto, California many families bring their boats to the lake, reservoir or the Delta. But recently there have been some horrific accidents related to boating in California.
RECENT MAJOR CALIFORNIA ACCIDENTS
The first accident that comes to mind is in San Francisco, where a crew on a boat that was in a yacht race in the San Francisco Bay was lost at sea. Only 3 of the 8 persons on that boat made it to safety. This yacht race recently resumed. As reported in the San Francisco Examiner “Bay Area yacht racing to resume a month after fatal Farallon Islands accident”.
The next accident is eerily similar, occurring soon after the first, but in Southern California. That accident involved yacht that was in a race from Newport to Ensenada. Although that death is the first in that race’s history, it is certainly not the only death in boating recently.
CAUSE OF ACCIDENTS
The issue in both of those boating accidents is the cause of the accident. US Sailing is working with the U.S. Coast Guard to figure out what went wrong during these boating accidents. Whether the accidents were caused by operator error (negligence), by a poorly built boat (product liability) or by mother nature, the boating community is demanding answers.
If this blogger had to guess, the cause would be mother nature combined with some operator mistakes. But the main cause would be the large waves that sometimes envelope boats in the ocean. But this blog’s entry’s purpose is to discuss how boating accidents apply to the average person.
Boating deaths shot up by 12.8 percent in 2011. Boat deaths are at the highest level since 1998, according the a report released by the U.S. Coast Guard. (US Coast Guard Report) According to that same report, in 2011, the Coast Guard counted 4588 accidents that involved 758 deaths, 3081 injuries and approximately $52 million dollars of damage to property as a result of recreational boating accidents. The most common types of vessels involved in reported accidents were open motorboats (47%), personal watercraft (19%), and cabin motorboats (14%). That means that by far the majority of accidents involve the boats that everyday people bring out to the lake and reservoir every summer.
Safety is very important when boating. Although the majority of boating accidents are caused by a boating operators negligence, death from that accident is usually because the victim of the accident was not wearing a life jacket. Although this blog focuses on the legal principals involved with boating, it is important to remember to always wear a life jacket when on the water.
Our, Modesto, California car accident law firm is frequently asked whether an uninsured motorist can sue the at fault driver in California. The answer is yes and no. If you are an uninsured driver in California you CANNOT sue for pain and suffering. Even when it is not your fault, you are barred from getting money for pain and suffering if you are uninsured while driving. It doesn’t matter if you are driving in Modesto, Sacramento, the Bay Area or anywhere in California, no insurance = no pain and suffering recovery. Technically the ban to these damages extends to pain and suffering, loss of life, emotional stress and other non-economic damages. Those drivers without insurance can still sue for lost wages and medical bills but not pain and suffering. PASSENGERS can still collect money for pain and suffering.
Pain and suffering damages are important. Injury from a car accident can be as little as a sore neck to paralysis or death. How much is the pain and suffering from a broken neck worth, may you ask? Well, if you were the driver of a car and you were uninsured, then zero according to California law. The reason you cannot collect non economic damages as an uninsured motorist is because in 1996 California voters passed Proposition 213 which was aimed at making more California drivers get insurance. This proposition which bars uninsured motorist from collecting non-economic was codified in California Civil Code § 3333.4(a)(2).
Not only have appellate courts continued to uphold this provision in the law and deny people from seeking non-economic damages, an appellate court recently extending denial of non-economic damages further. In Chude v. Jack in the Box, Inc. (2010) 185 Cal. App. 4th 37, is illustrative of this extension. In that case Teckla Chude suffered major burns on her body because of a scolding hot coffee from a coffee purchased in the Jack in the Box drive through had spilled from the cup from the unsecured lid into the seat of her pants.
The question is not whether Jack in the Box was negligent, but whether Chude could seek damages for pain and suffering. Chude was uninsured as she went through the drive through at Jack in the Box and was subsequently burned. This trial court granted Jack in the Box’s motion for summary adjudication on Chude’s non-economic damages claim. The Second District Court of Appeals in this above case upheld the ruling that non-economic damages are not allowed where the driver of the car is uninsured, even where there is no car accident.
The good news is that about 85 percent of motorists carry insurance. That means if you were in an auto accident and you were not at fault, then you can have your lost wages paid to you, your hospital bills paid and receive money for pain and suffering. Continue reading