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California Case Law Update

ASSUMPTION OF RISK

Uriel Jimenez, et al. v. Roseville City School District – 2016 WL 3029540 – Court of Appeal, Third District – May 19, 2016

Plaintiff Uriel Jimenez was injured doing a flip while breakdancing at a middle school within the defendant Roseville City School District. A teacher Alan Hall permitted students to break dance unsupervised in his classroom in preparation for a talent show.  School staff had witnessed students flipping and admonished the students previously.

Defendant moved for summary judgment arguing plaintiff’s claim was barred by the doctrine of primary assumption of the risk. Defendant asserted it owed no duty to protect plaintiff from risks inherent in breakdancing.

The trial court granted defendant’s summary judgment motion finding break dancing can involve flips and plaintiff voluntarily assumed the risk of injury from such flips by voluntarily participating in break dancing. The trial court further found defendant had no duty to protect plaintiff from the inherent risks of break dancing. Plaintiff appealed.

The court of appeal reversed. Flipping is not an inherent part of breakdancing. The defendant had a duty to supervise students engaged in a potentially dangerous activity, and the failure to supervise could constitute a breach of that duty. Further, there was a triable issue of fact as to whether defendant, by neglect, increased the risks of harm to plaintiff. Primary assumption of the risk did not apply.

ELDER ABUSE

Kathleen A. Winn, et al. v. Pioneer Medical Group, Inc. et al. – 2016 WL 2941968 – Supreme Court of California – May 19, 2016

Plaintiffs Kathleen A. Winn and Karen Bredahl are the daughters and surviving heirs of Elizabeth M. Cox.  Mrs. Cox sought medical care on an outpatient basis from the defendant Pioneer Medical Group, Inc., and several of its doctors, also named as defendants. Mrs. Cox suffered from peripheral vascular disease, ultimately resulting in amputation of her right leg above-the knee. Mrs. Cox later developed blood poisoning, and died. She was never referred to a specialist.

Plaintiffs filed a complaint for medical malpractice, and a second complaint for elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code § 15600 et seq.) stemming from the alleged failure to make a vascular referral. Defendants demurred.

The trial court sustained the demurrer without leave to amend finding the facts alleged showed only professional negligence rather than the “recklessness, oppression, fraud, or malice” required under the Elder Abuse Act.

The Court of Appeal reversed, holding the Elder Abuse Act does not require the existence of a custodial relationship, and rejecting the defendants’ contention the trial court should determine, as a matter of law, whether defendants’ conduct constituted professional negligence rather than neglect.

The California Supreme Court granted review to consider whether the Elder Abuse Act requires a caretaking or custodial relationship. The Court concluded the Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient. Because defendants treated Mrs. Cox on an outpatient basis and did not have a caretaking or custodial relationship with the decedent, plaintiffs could not adequately allege neglect under the Elder Abuse Act.

PERSONAL INJURY – STATUTE OF LIMITATIONS

Dominque Lopez v. Sony Electronics, Inc. – 2016 WL 2864800 – Court of Appeal, Second District, Division Eight – May 13, 2016

Plaintiff Dominique Lopez (age 12), though her guardian ad litem, brought suit against defendant Sony Electronics, Inc. alleging prenatal exposure to toxic substances caused her to suffer birth defects and permanent injuries.

Defendant prevailed on a motion for summary judgment, successfully arguing the action was time barred by Code of Civil Procedure section 340.4, which imposes a six year statute of limitations for birth and pre-birth injuries, and also expressly provides there is no tolling of the limitations period during the plaintiff’s minority.

Plaintiff appealed, arguing Code of Civil Procedure section 340.8, which provides a 2 year limitations period from the date of injury or date plaintiff should have known about an injury caused by a hazardous material or toxic substance, but which permits tolling during minority, applied.

Relying largely on the legislative history evidencing an intent for broad application of section 340.4, the Court of Appeal determined section 340.4 controlled, barring plaintiff’s claim.

PRODUCTS LIABILITY

Susan Hetzel v. Hennessy Industries, Inc. – 2016 WL 3004412 – Court of Appeal, First District, Division One – May 17, 2016

Plaintiff James Hetzel alleged he developed breathing difficulties and lung damage as a result of his exposure to asbestos dust while working as a mechanic. He sued defendant Hennessey Industries, Inc., and others, claiming their brake shoe arcing machines released asbestos dust when they were used to grind brake linings. Although the machine itself did not contain asbestos, plaintiff alleged defendant knew or should have known its grinders would be used in conjunction with asbestos containing brake lining, as all brake shoe linings used with automobiles during the relevant period contained asbestos. Plaintiff proceeded under a failure to warn theory.

Defendant moved for summary judgment. The trial court granted the motion, finding defendant could not be held liable because its products did not contain asbestos, not all break pads contained asbestos at the time, and that defendant’s product was not designed for, and did not require, asbestos containing brake pads to function.  The trial court concluded defendant owed no duty to warn of risks created by third parties.

The Court of Appeal reversed, finding there was a triable issue of fact as to whether defendant had a duty to warn. Although the product did not contain asbestos, virtually all of the brake linings during the relevant period contained asbestos. Grinding brake pads with the defendant’s product released asbestos dust in the air. Thus, a jury could reasonably conclude the inevitable use of defendant’s products would expose a worker like plaintiff to asbestos dust absent a warning.

MEDICAL MALPRACTICE – STATUTE OF LIMITATIONS

Catherine Flores v. Presbyterian Intercommunity Hospital – 2016 63 Cal.4th 75 – Supreme Court of California – May 5, 2016

Plaintiff Catherine Flores was a patient at defendant Presbyterian Intercommunity Hospital. She was injured when a latch on her hospital bedrail failed and the rail collapsed, causing her to fall to the ground. Plaintiff filed suit just under two years following the injury.

Defendant demurred arguing the one year medical malpractice limitations period of Code of Civil Procedure section 340.5 applied, rather than the two years limitations period applicable to personal injury actions under Code of Civil Procedure section 335.1.

The trial court sustained the demurrer without leave to amend, reasoning a doctor had made a medical decision to order that the rails on her bed be raised following a medical assessment of her condition, and therefore the fall was the result of professional negligence.

The Court of Appeal reversed, finding the defendants alleged failure to use reasonable care in maintaining its premises and its alleged failure to take reasonable precautions to make a dangerous condition safe sounds in ordinary negligence because the negligence did not occur in the rendering of professional services.

The Supreme Court granted review to consider whether negligence in maintaining hospital equipment or premises qualifies as professional negligence or ordinary negligence. The Court held if the act or omission that led to the plaintiff’s injuries was negligence in the maintenance of equipment that, under the prevailing standard of care, was reasonably required to treat or accommodate a physical or mental condition of the patient, the plaintiff’s claim is one of professional negligence under section 340.5.  But section 340.5 does not extend to negligence in the maintenance of equipment and premises that are merely convenient for, or incidental to, the provision of medical care to a patient. Since plaintiff’s doctor made judgment to order the rails raised in order to accommodate her physical condition and the patient was injured as a result of the negligent use or maintenance of the rails, the negligence occurred “in the rendering of professional services” and therefore was professional negligence for purposes of section 340.5.  A one year statute of limitations applied.

ABOUT THE AUTHOR: Reece Román is an associate at Tyson & Mendes LLP. He specializes in personal injury, employment, professional liability, and business litigation. Contact Reece at (858) 263-4137 or rroman@tysonmendes.com.

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