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Negligence

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Persons paid under the In-Home Supportive Services program (Welf. & Inst. Code 12300 et seq.) to care for disabled and elderly California residents are not employees of the State of California which, therefore, is not vicariously liable for their torts, such as negligent driving in this case. Read More

Plaintiff wandered drunk into a parking garage owned by defendant and engaged in "horseplay," ending up sitting on a 43 inch tall perimeter wall on an upper story of the garage, from which she fell to the ground, severely injuring herself.  Plaintiff claimed that the defendant had hired a security service to, among other things, find and stop horseplay, as… Read More

Following Weidenfeller v. Star & Garter (1991) 1 Cal.App.4th 1, this decision holds that when a plaintiff's injury results in part from one defendant's negligence and another defendant's intentional act, the court must on either defendant's request, submit a jury instruction and special verdict directing apportionment of liability as between the defendants under Civ. Code 1431.2. Read More

Plaintiff mother sued for negligent infliction of emotional distress.  She was on the telephone with her daughter while the daughter drove a car at an intersection where her vision of on-coming traffic was obscured by defendants' negligent maintenance of vegetation on adjoining property.  That mother heard the crash on the phone was insufficient in itself to allow her to sue. … Read More

Following Canister v. Emergency Ambulance Service, Inc. (2008) 160 Cal.App.4th  388, this decision holds that MICRA's one-year from discovery limitations period applies to a claim that plaintiff was injured by an automobile accident caused by the EMT's negligent driving of the ambulance taking plaintiff to a hospital.  The negligence occurred in the rendering of services for which a provider is… Read More

Following Roldan v. Callahan & Blaine (2013) 219 Cal.App.4th 87, this decision affirms an order denying arbitration after the defendant refused to pay all arbitration costs.  Substantial evidence supported the trial court's finding that Daniel Hang was indigent when he died while in defendant's care.  His son brought suit for elder abuse and negligent hiring and supervision as Hang's successor-in-interest. … Read More

Owner sued waterproofing company in 2013 claiming its poor application of waterproofing materials on the roof of owner's building caused leaks in the roof.  The jury verdict was in favor of the waterproofing company.  Though finding it was negligent, the jury concluded defendant's negligence did not cause the leaks or other damage to the building.  Several years later, owner sued… Read More

Plaintiffs entered into arbitration agreements with Pacific as part of their agreements for Pacific's cryogenic preservation of their sperm or eggs.  One of the cryogenic tanks in which the specimens were to be preserved failed.  This decision holds that the manufacturer and distributor of the failed tank could not compel arbitration under the plaintiffs' agreements with Pacific to which the… Read More

Plaintiff was injured in an accident on his Yamaha dirt bike.  He said the authorized Yamaha dealer from whom he bought the bike had installed the throttle mechanism improperly, leading it to fall off the bike, causing the accident.  The jury verdict and judgment in favor of Yamaha Motor Corp., U.S.A., the US distributor of the bike was reversed because… Read More

The trial court erred in granting defendant summary judgment based on expiration of the statute of limitations (CCP 340.5) in this medical malpractice case arising from a stillbirth following an operation to turn the fetus to a head-down position for birth.  There was a question of fact as to whether plaintiff subjectively suspected malpractice the day before delivering the stillborn… Read More

Plaintiff, a jewelry store, stated a viable breach of contract action against Sotheby's.  Plaintiff owned $4 million in diamonds which it had obtained from Rechnitz as security for his debt.  Plaintiff and Rechnitz met with a Sotheby's agent, giving him the diamonds to have appraised for possible auction at Sotheby's.  Sotheby's form contract referred to only a single consignor, but… Read More

The trial court correctly granted defendant summary judgment in this slip-and-fall injury suit in an exercise facility's sauna room.  The release of claims in the fitness center's membership agreement absolved the fitness center of liability for ordinary negligence.  Plaintiff failed to submit evidence creating a triable issue of fact as to gross negligence.  She claimed to have fallen because the… Read More

Plaintiffs sued claiming they had been sexually molested while minors by a Roman Catholic priest.  They sought to hold the Archdiocese vicariously liable for ratifying the molestation and directly liable for its own negligence in failing to supervise the priest.  The trial court correctly denied the Archdiocese's Anti-SLAPP motion.  The allegations about the Bishop's supporting the priest's defense of another… Read More

Defendant admitted negligence in an auto accident case.  But the trial court correctly denied plaintiff's motion for a directed verdict on causation.  Defendant's expert said only that the accident caused additional injury "if the plaintiff's testimony is believed."  The jury could and did disbelieve plaintiff.  Plaintiff could not complain on appeal about the wording of jury instructions since he invited… Read More

A written waiver or release of future negligence claims or assumption of the risk in order to participate in recreational activities is enforceable.  Here, a high school required its football team players to sign such a release.  It barred plaintiff's claim for negligence in failing to diagnose the concussion he suffered playing football which led to serious brain damage.  Plaintiff… Read More

The Supreme Court holds that lenders and loan servicers do not owe borrowers a duty of care in handling their loan modification applications.  Lender and borrower are in privity of contract, and the economic loss rule prevents recovery for purely economic loss based on negligence between contracting parties.  The Biakanja factors apply only to parties not in privity of contract. … Read More

Distinguishing and disagreeing with Henriksen v. City of Rialto (1993) 20 Cal.App.4th 1612, this decision holds that the City is vicariously liable under respondeat superior for the negligence of one of its police officers in fail to secure a Police Department-approved, secondary firearm upon returning home from work.  The policeman left the gun, unlocked, in his car when he returned… Read More

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