Sacramento Car Accident Lawyer Blog

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

To plead a cause of action for negligence per se, plaintiff must allege: defendant violated a statute, ordinance or regulation; violation proximately caused death or injury to plaintiff; such death or injury was the kind that the statute, ordinance or regulation was designed to prevent; and plaintiff belonged to the class of persons for whose protection the statute, ordinance or regulation was adopted. (The Rutter Group, California Practice Guide, Civil Procedure Before Trial, Section 6:129.1; also citing Randi W v. Muroc Joint Unified School District (1997) 14 Cal.App.4th 1066, 1087). This is sufficiently pleaded.

Though also not before the court in the demurrer stage, the relevant statute is one likely to be known only by those who regularly rent such ATVs for a living, and creates a legal duty to the renter of ATVs not to violate or induce violation of that statute.

DEFENDANT'S ARGUMENTS ABOUT CORPORATE VS. INDIVIDUAL LIABILITY AND ABOUT JOHN BLACK'S LEGAL RELATIONSHIP TO THE CORPORATION AND TO THE PLAINTIFF ARE BOTH INCORRECT ON THE LAW, AND UNTIMELY RAISED AT THE DEMURRER STAGE

Though we could further detain the court with our legal research on the various ways in which John Black is responsible for what happened at BJ's ATV rentals at the time at issue in the case - suffice it to say that we believe that the case law with which we are familiar, including that mis-cited by defendant in an argument inappropriate to a demurrer, pins John Black with liability in this case - this issue is not now before the court, and cannot be before the court before we have done sufficient discovery to be able to put admissible evidence forward if a motion for summary judgment is filed.

Continue reading "Sacramento ATV Shop Owners Negligently Rent To Teenaged Boy, Part 6 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

Paragraph 32 explicitly asserts that the negligence of the defendants, therefore including John Black, was the legal and proximate cause of harm to Kathy White.

Paragraph 33 sets forth all that is needed to defeat this demurrer in a single paragraph, asserting a duty of care, breach of that duty of care, therefore negligence, causation and damages, all as to defendants, therefore including John Black.

Paragraph 34 sets out an explicit assertion of negligence per se against defendants, therefore including John Black.

Paragraph 35 asserts causation and damages against defendants, including therefore John Black

Paragraph 36 sets out the nature of the damages caused by negligence of defendants, including therefore, John Black.

Is this enough to defeat the demurrer? Statute, case law, and commentary all support that conclusion.

As to the general negligence claim, it is black letter law that "N]egligence claims can be pleaded generally, without specifying the particular breach or the manner in which the accident occurred." (The Rutter Group, California Practice Guide, Civil Procedure Before Trial, Section 6:129). Plaintiff need only allege that the defendant owed a duty of care to the plaintiff, that the duty was breached and that breach was the cause of the damages sustained by the plaintiff.

Continue reading "Negligent ATV Rental Leads To Injured Sacramento Woman, Part 5 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

PLAINTIFF DID NOT INTEND TO INCLUDE NON-PHYSICIAN JOHN BLACK AS A DEFENDANT IN THE MEDICAL MALPRACTICE CAUSE OF ACTION, AND DO NOT OPPOSE THE DEMURRER AS TO MR. BLACK FOR THAT CAUSE OF ACTION ALONE

The phrase "as to all defendants" referring to the medical malpractice cause of action should have been changed when the second amended complaint was filed, so as to separate the health care providers, to whom the first cause of action is addressed, from the ATV renters who failed to show a minor how to use their vehicles, to whom the second cause of action is addressed. We do not intend to show that Mr. Black was a stealth physician or that his duty to Kathy White was that of doctor to patient. We do not oppose this demurrer as to that first cause of action.

We also note in passing that this could have been cleared up with a phone call or any form of meet and confer, without wasting the court's time.

GENERAL NEGLIGENCE IS SUFFICIENTLY PLEADED AS TO JOHN BLACK

Plaintiffs' second cause of action begins with Paragraph 27, and applies explicitly to defendant John Black and Defendant BJ's ATV Rentals. There are two defendants to whom this cause of action applies. Therefore, the plain meaning of an assertion that refers to "defendants" in the plural includes assertions directed to both of these two defendants. This includes John Black.

Continue reading "Sacramento Physicians Botch Hand Surgery, Part 4 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

FACTUAL BASIS OF THE CASE

Plaintiff's assertion is that plaintiff Kathy White went ATV riding with her fiance and his children. One son, a minor, rented an ATV without receiving the statutorily required training session in handling the ATV, when that minor and the adults doing recreational driving lacked the safety certificate required by law if the minor is not given specific safety training. Vehicle Code §38503. No person under the age of 18 years, on and after 1990, shall operate an all-terrain vehicle on public lands of this state unless the person satisfies one of the following conditions:

(a) the person is taking a prescribed training course under the direct supervision of a certified all-terrain vehicle safety instructor;

(b) The person is under the direct supervision of an adult who has in their possession an appropriate safety certificate issued by the state, or issued under the authority of another state;

(c) The person has in possession an appropriate safety certificate issued by this state or issued under the authority of another state.

Both the company defendant, BJ's ATV rentals, and the owner, operator, and developer and implementor of policies for BJ's ATV, John Black, knowingly and intentionally failed to show the youngster the safety methods needed for that rental to be safe, and thereby violated the applicable statute. As a result, the failure of the youngster to handle the ATV properly in a difficult situation caused an accident that resulted in the fracture of Ms. Kane's wrist, the kind of damage the law was passed to prevent, in a injured person of the class the law was designed to protect.

Continue reading "Sacramento Woman Needs Hand Surgery After ATV Collision, Part 3 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

Those required assertions are made in some detail in Paragraphs 28 through 36 of the second amended complaint. Mr. Black is a defendant, and a series of allegations directed towards the defendants apply to him.

In addition to asserting a duty of care running to the plaintiff through the foreseeable harm which careless conduct by Mr. Black would cause, the allegations set forth in this complaint assert a legal duty to comply with specific statutory law designed to protect persons like the plaintiff, and that Mr. Black, like other defendants, breached that duty and caused harm.

The next stop for this defense firm, if it thinks it has the goods, is summary judgment, after discovery is completed. We believe that Mr. Black in fact was personally responsible for the failure of the rental company he owned and controlled and whose policies he personally dictated to give the training to a minor that would have prevented this accident, when such training was required by law, or to refuse to rent an ATV to a minor in the absence of such training or licensed supervision. We believe that when discovery has progressed to the point when summary judgment might be sought, there will be no more noise from Mr. Black or his lawyers.

But the only issue now before the court is the legal sufficiency of the allegations in the four corners of the complaint or reasonably inferred from those four corners, all as liberally construed, under applicable case law, in favor of the party opposing demurrer. This demurrer wastes the court's time. (See Part 3 of 6.)

Continue reading "Surgery Required After Sacramento ATV Accident, Part 2 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this vehicle accident/medical malpractice case and its proceedings.)

OPPOSITION TO DEFENDANT ROBERT BLACK’S DEMURRER TO SECOND AMENDED COMPLAINT

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

This demurrer begins with what the defendant hopes will be his closing argument, moves along through a factual background section that leaves out facts of the case relevant to the demurrer, and then proceeds to act as though a demurrer was a summary judgment motion, and as though California had not gone to notice pleading a century and a half ago.

To remind defendant, since this court needs no such reminder, to survive a demurrer the pleadings need only allege those ultimate facts required to define a cause of action under California law. If the defendant believes that those asserted facts are false or cannot be proven, they are free, once discovery has been had, to file a motion for summary judgment. Once we are at the summary judgment stage, plaintiff will have to produce sufficient admissible evidence for a reasonable jury to go her way. At the demurrer stage, only legally sufficient pleading is required.

Since the pleadings explicitly list Robert Black as a defendant in the Second Cause of Action for Negligence, all that need be alleged is that Mr. Black had a duty of care running to the plaintiff, that he breached this duty, was therefore negligent, and that this breach caused harm. Once those allegations are made, no demurrer to this cause of action lies. (See Part 2 of 6.)

Continue reading "Sacramento All-Terrain Vehicle Accident Causes Severe Injury, Part 1 of 6" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

Past Medical Expenses:

Sacramento Fire Department $ 798.00

Children’s Hospital Sacramento $ 26,430.40

University Children’s Medical Group $ 1,724.07

Doug Walters, M.D. $ 238.00

Paul Smith, M.D. $ 1,960.00

Advanced Imaging $ 85.00

TOTAL PAST MEDICAL EXPENSES $ 31,235.47

Future Special Damages:

As can be seen from the attached Life Care plan, Amanda also has a myriad of future care needs. The cost of future medical care totals approximately 2.8 million dollars to 4 million dollars in an apartment living setting, and 8 million dollars to 9.1 million dollars in a supported living environment. Additionally, Amanda's future loss of earning capacity totals approximately $488,753 to $1.7 million dollars depending on her educational level.

Maggie Smith

Maggie was located in the front passenger seat, fully seat-belted when the collision occurred. As a result of this violent crash, she sustained a cervical fracture at C-2 and rupture of the intraspinous ligament, which required HALO immobilization. She also sustained injuries to her shoulders and knees. Maggie is currently 53 years of age and will require a lifetime of medical care involving medications, diagnostic studies and arthroscopies of both shoulders.

Continue reading "Girl Suffers Brain Injury In Sacramento Car Accident, Part 4 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

Past Medical Expenses:

Sacramento City Fire Department $ 692.00

Childrens Hospital Sacramento $ 114,946.00

A. Cooper, M.D. $ 72.76

Sacramento County CCS $ 1,643.25

Freddie Segal $ 686.79

University Children’s Medical Group $ 16,566.67

TOTAL PAST MEDICAL EXPENSES: $ 134,607.40

Future Special Damages:

As can be seen from the Life Care plan, Alexa has a myriad of future care needs. The costs of such future care total approximately 10.9 million dollars to 11.7 million dollars. Additionally, Alexa will suffer 1 million dollars to 1.3 million dollars in lost earning capacity depending on her educational level.

Amanda April

Amanda was sitting in the rear driver's side of the car. Amanda also suffered a traumatic brain injury and was diagnosed with a right transverse temporal skull fracture. She sustained loss of consciousness and amnesia. Amanda's mental status deteriorated upon arrival via helicopter to CHS, where she was intubated. She exhibited altered mental status while at the hospital. Amanda was also diagnosed with a right clavicular fracture and a right 7th rib fracture. She was noted to have right ear hearing loss and had blood in her right ear canal.

Amanda has been diagnosed with global learning disability, language communication delay, attention deficit disorder, gross and fine motor skills disability, chronic intermittent cephalgia, and multiple additional neurocognitive deficits. (See Part 4 of 4.)

Continue reading "Sacramento Family Facing Huge Bills Due To Car Accident, Part 3 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

Just before the collision, Black was traveling at a minimum of 58 miles per hour in a 35-miles-per- hour zone. By the time Martinez saw and appreciated the speed of the truck, she had already committed to her left turn. At the last moment, Black applied his brakes to no avail, and smashed into the rear passenger side quarter panel of the small Audi that Martinez was driving. The collision was violent, causing the Audi to spin counterclockwise. The truck drove up onto the sidewalk on the west side of Mission, knocking over both a fire hydrant and a palm tree.

Black was cited by for violating section 22350 of the Vehicle Code (speeding) and paid a fine.

Mr. Black was acting in the course and scope of his employment for his employer, Automotive Group, which is liable under the theory of respondent superior.

DAMAGES

Alexa Martinez
Alexa was sitting in the rear passenger position at the time of impact, and she suffered the full force of the direct hit by the defendants' truck. As a result, Alexa sustained extensive facial and skull fractures, lacerations, hematomas and contusions. She was diagnosed with subarachnoid, intraventricular and intracerebral hemorrhages and contusions, respiratory failure requiring intubation, and she was bleeding from her right ear. She was unconscious and nonresponsive at the scene.

Continue reading "Automobile Accident In Sacramento Injures Family, Part 2 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this brain injury/automobile accident case and its proceedings.)

PLAINTIFFS’ TRIAL BRIEF

INTRODUCTION

On August 20, 2005, Tammy Martinez was driving her mother, Maggie Smith, and her two nieces, 19-month-old Alexa Martinez, and 5-year-old Amanda April, northbound on Mission Boulevard (Mission) in Sacramento. The weather was clear and sunny at the time of the accident. As Martinez approached the intersection of Mission and Hollis, she intended to turn left to go westbound. Mission is a two-lane, north/south street in a business district. Hollis is a residential street with one lane in either direction. The intersection is controlled by standard 3-phase lights. There are no left-turn pockets, or left-turn arrows. On this day, numerous pedestrians were walking in this business district, and vehicle traffic was moderate. The posted speed limit at the intersection is 35 mph.

Defendant Ralph Black was 18 years of age and was employed by Automotive Group as a used car salesman. He was in the process of selling a used Ford F-150 pickup truck to a customer. Black's manager instructed him to take the pick-up and get it filled with gasoline while the sales contract was being drafted.

Continue reading "Sacramento Girl Suffers Brain Injury In Car Accident, Part 1 of 4" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

On July 6, 2006, plaintiff presented to Lee M. Messi, M.D. for a neurosurgical consultation. Dr. Messi wrote a report. In the report, it is noted that plaintiff stated he was involved in an accident and that he had a sore body, but his neck was the main symptom of pain. Dr. Messi reviewed plaintiff's MRI of his cervical spine and stated that the MRI shows "evidence for significant disc abnormalities at both C4-5 and C5-6." At the C5-6 there is a disc osteophyte complex and narrowing of the AP diameter of the spinal canal to 8mm. In addition, there is some right side neuroforaminal narrowing and possible impingement of the right C6 nerve root. At the C4-5 there is a central disc protrusion narrowing the spinal canal approximately in 9mm. In general the space diameter of the canal appears to be quite compromised with an average diameter of 9mm even in the areas where there is no disc abnormalities.

Dr. Messi recommended cervical epidural blocks and if this approach did not work, plaintiff may be considered as a candidate for a two level anterior cervical diskectomy and fusion at C4-5 and C5-6.

SPECIAL DAMAGES

Plaintiff seeks medical expenses, wage loss, and general damages.

1. Past Medical Expenses:

Provider Dates Amount Charged Amount Reduced Hanif Number

Kate Brown, D.C. Feb 8, 2006 $514.13 $0.00 $514.13

MRI Feb 21, 2006 $1,695 $0.00 $1,695

Lee Messi, M.D. July 6, 2006 $750.00 $0.00 $750.00

TOTAL $2,959.13 $0.00 $2,959.13

Continue reading "Sacramento Woman Challenges Plaintiff's Auto Injury Claim, Part 3 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

On February 9, 2006, plaintiff returned to Dr. Brown with pain in his right arm and hand along with neck pain associated with the accident. Dr. Brown provided ultrasound treatment and myofascial release.

On February 14, 2006, plaintiff returned to Dr. Brown with pain in his neck which radiated to his right arm and hand. Dr. Brown referred plaintiff for an MRI at Advanced MRI of Sacramento.

On February 21, 2006, plaintiff had an MRI of his cervical spine at Sacramento Imaging Center which was read by Kenneth Dorham, M.D., who's impression was:

1. Mild to moderate anterior extraduarl impressions at the C4-5 and C5-6 levels as described. At the C4-5 level this is due to a small central disc protrusion, and at the C5-6 level, this appears to be due to a moderate broad based disc osteophyte.

2. Right sided neural foraminal narrowing at the C5-6 level due to bony hypertrophic changes.

3. The cord has a generally flattened appearance throughout the cervical spine and the AP diameter of the canal even where the disc appear normal is less than 9mm. This is likely developmental in nature.

On March 2, 2006, plaintiff returned to Dr. Brown with neck pain radiating into his right arm. Chiropractic adjustments were administered.

On March 16, 2006 plaintiff returned to Dr. Brown with ongoing pain in his neck.

Plaintiff treated with Dr. Brown from February 8, 2006 to March 16, 2006 for a total of 5 visits.

Continue reading "Car Accident In Sacramento Leaves Both Drivers Injured, Part 2 of 3" »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this car accident/personal injury case and its proceedings.)

Mandatory Settlement Conference Statement of Defendant Dina White

STATEMENT OF FACTS

This case arises out of a red light/green light dispute that occurred at the intersection of University Avenue and Green Street in Sacramento, CA, on January 22, 2006. Defendant, Dina White, was traveling in a 2002 Audi Quattro and came to a stop at University Avenue to make a left hand turn. When the left hand turn signal changed to green (an arrow), defendant proceeded to turn left. Plaintiff, Michael Owen, was traveling in a 1998 BMW 528i, eastbound on University Avenue and drove through the intersection on a red light. The passenger side fender and hood of defendant's Audi came into contact with driver's side front fender of plaintiff's BMW.

Besides these two drivers, there are no witnesses to this accident. There is no police report in connection with this case. Both vehicles were declared a total loss as a result of this accident.

LIABILITY

Plaintiff is at fault for causing this accident by illegally running a red light.

INJURIES AND TREATMENT

On February 8, 2006, plaintiff presented to Kate Brown, D.C. to establish care. According to Dr. Brown's initial exam report, plaintiff stated that he was involved in the accident when a Audi ran a red light and hit his automobile.

Continue reading "Woman From Sacramento Involved In Car Accident, Part 1 of 3" »