California Case Law Update

Author: Emily Berman

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November 5, 2019 8:00am

Kim v. United States (9th Cir. 2019) 940 F.3d 484

The Ninth Circuit recently revived a suit seeking to hold the federal government responsible for the deaths of two teens killed in Yosemite National Park after a tree branch fell on their tent, finding the trial judge erred by tossing the case on sovereign immunity grounds. The panel reversed the dismissal of the suit, which alleged the National Park Service knew about the dangers posed by a large oak tree overhanging a campsite but failed to remedy it or warn campers about it.

The Federal Tort Claims Act (“FTCA”) suit filed by the campers’ families, alleged that as a result of the Park Service’s failure, the teenage campers Dragon Kim and Justin Lee were killed in 2015 when a large limb broke off the tree and fell on the tent the boys were sleeping in. A California federal judge tossed the suit on the grounds that it was barred by the FTCA’s “discretionary-function” exception. When the exception applies, the federal government is afforded sovereign immunity in cases in which its exercise of judgment is questioned.

On appeal, the families contended that because the park had a seven-point “hazard tree management” program in place before the incident, the park officials failed to flag the tree as dangerous — following two previous annual inspections of the campsite in question — was not a public policy decision requiring judgment. The panel agreed, saying that although the adoption of the program was a public policy decision, the implementation of the program was not, as it only involves making technical or scientific choices. The Court of Appeal found:

[O]nce park officials undertook to evaluate the danger of the trees in the campground, they were required to do so according to the technical criteria set forth in the park’s official policies. While it is unclear whether the families will succeed in showing that officials were actually negligent in evaluating the tree under the seven-point system, such evaluation is not exempt from the scope of the FTCA.

Additionally, the panel shot down the government’s argument that its tree management decisions are discretionary choices. The panel acknowledged that while deciding what action to take may require park officials to make a discretionary decision, the decision not to take any action is not something that is authorized by the National Park Service’s directive that implemented the tree hazard program. The panel further stated:

Even if the directive gives officials broad leeway in deciding how to abate the danger posed by a high-risk tree, the directive still instructs that they do something toward that goal. But the families contend — and at this point we assume — the government did nothing at all. Given the requirements of Yosemite Directive No. 25, this fundamental decision of whether to act in any way to abate the hazard remains subject to challenge under the FTCA.

Accordingly, the panel held the FTCA’s discretionary function exception did not bar the present negligence-based claims; however, the fraudulent concealment claims were barred by the FTCA’s misrepresentation exception.

Romero v. Fullerton Surgical Center LP (Cal.Ct.App., Oct. 15, 2019, No. 6056433) 2019 WL 5156723

In an unpublished opinion, a panel from the Fourth Appellate District recently revived a suit accusing an outpatient surgery center (Fullerton Surgery Center LP) of injuring a sedated patient during a medical procedure, holding that the doctrine of res ipsa loquitor (which allows juries to presume negligence) applied to her case. The three-judge panel unanimously reversed a midtrial dismissal of the Plaintiff’s suit.

The Plaintiff’s procedure was for an epidural to treat her back pain. Prior to this procedure, Plaintiff had an unrelated toe injury that was nearly healed, thanks to a surgically implanted device. Plaintiff claimed the toe injury was manageable prior to the epidural, but after she awoke from the epidural procedure, she felt excruciating pain in her toe and her protective boot was unstrapped and dangling from her foot. It was later revealed that the bone in her toe had fragmented and the implant was sheared off at one end, which Plaintiff’s podiatrist testified could have only been caused by a major trauma.

At trial, Fullerton Surgical Center LP (“Fullerton”) moved for nonsuit or for a directed verdict, reasoning that Plaintiff failed to present medical evidence or testimony to support a claim of negligence. However, the panel disagreed, finding Plaintiff presented a “classic pattern” for res ipsa loquitur. Plaintiff presented evidence that a body part not involved in the procedure — her toe — was injured while she was wearing a protective boot. The panel believed that common knowledge applied there and that no medical expertise was required to conclude that this injury would not have occurred in the absence of negligence.

Under California case law, a plaintiff invoking res ipsa loquitur must satisfy three conditions: (1) the injury does not normally occur without someone’s negligence; (2) the injury must be caused by a defendant with exclusive control; and (3) the injury must not be caused by the plaintiff.

Plaintiff presented evidence that, if believed by the jury, could have established all three conditions. She established that she walked into the Fullerton center without difficulty, with a toe that was in the final stages of healing, was rendered unconscious, and regained consciousness with an injury to her foot, revealed later to be a ruptured toe implant that would have taken major trauma to produce. Under well-established California case law, this was a classic res ipsa loquitur set of circumstances. Accordingly, the panel said it should be up to a jury to decide whether to believe Plaintiff’s arguments and the onus is on Fullerton to prove that it did nothing wrong.

Anaya v. General Equipment & Supplies, Inc. (Cal. Ct. App., Oct. 8, 2019, No. B291274) 2019 WL 4945729

In an unpublished opinion, a panel from the Second Appellate District affirmed a $30 million jury award in a suit accusing a construction machine distributor and others of causing a worker’s death after he was dragged into a rock-crusher machine, finding the trial judge did not err by excluding certain evidence.

A three-judge Court of Appeal panel unanimously upheld the verdict in a suit accusing General Equipment & Supplies, Inc. (“General Equipment” of failing to equip the rock crusher with proper safety features, which caused the 2013 death of Rolando Anaya, an R.J. Noble Co. (“R.J. Noble”) worker who was dragged into the machine after a conveyor belt caught his pant leg. Anaya’s three children had also sued R.J. Noble for negligence but those claims were withdrawn during the trial, according to the opinion, which did not discuss whether a settlement was reached. The Los Angeles County Superior Court jury found in March 2018 that General Equipment was 70% at fault while R.J. Noble was 30% to blame.

On appeal, General Equipment argued the trial judge erroneously excluded evidence that the rock crusher was in compliance with industry custom and practice. The panel disagreed, saying case law requires a showing that the evidence is relevant to a products liability claim. “General Equipment fails to show it even attempted to meet — let alone did meet — its threshold burden to admit industry custom and practice evidence,” the panel said in the opinion. The evidence and witness testimony that was allowed at trial, the panel added, showed safety features such as an interlock device or fail-safe switch could have been installed on the machine easily and at a relatively inexpensive cost. “Thus, we conclude the trial court did not abuse its discretion and General Equipment suffered no prejudice,” it said.

General Equipment also argued on appeal that the jury’s award, which comprised entirely noneconomic damages, such as loss of companionship, was excessive as a matter of law. The panel again disagreed, saying the children and others testified at length as to how much their father meant to them and how much his death had impacted them. Plaintiffs sought only noneconomic damages at trial. Noneconomic damages in a wrongful death action are intended to compensate the decedent’s family members for the “love, companionship, comfort, affection, society, solace or moral support” they lost as a result of their loved one’s death. Accordingly, the Court found the damages award was supported by substantial evidence.

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