Coalition Against Distracted Driving et al. v. Apple Inc. et al.[1]

In this appeal recently brought before the Second Appellate District (downtown Los Angeles), appellant urged the Court to revive a suit in he and a coalition brought against Apple, Google, Samsung and Microsoft. In that suit, it was alleged these tech giants should be required to warn consumers about the dangers of using smartphones while driving.  Plaintiffs argued the four tech companies must apply warning labels regarding the dangers of distracted driving to their products.  The trial court dismissed the case, ruling the coalition had no standing to sue.

On appeal, the justices framed the key issue around the idea that a lack of warning on smartphones and smartwatches had caused any injury. The justices seemed reluctant to find an obligation on the part of manufacturers to include a warning telling consumers not to engage in the illegal use of their products. (The law already requires one not to use smartphones in a way that is distracting while driving).

The defense argues the lawsuit is an attempt to shift liability for the illegal actions taken by distracted drivers from the drivers themselves to the smartphone makers. Under this reasoning, anything which could conceivably distract a driver, from fast food to cosmetics and radios, would have to include a warning label.  The panel has taken the matter under submission and a decision is expected soon.

Atain Specialty Insurance Co. v. California Capital Insurance Co.[2]

This coverage dispute stemmed from a lawsuit filed by a tenant in an apartment complex who claimed to have contracted a respiratory illness from dust containing the feathers and fecal matter of pigeons that entered her apartment through the building’s ventilation system. Plaintiff alleged the property owners and management company (Sierra Pacific) were negligent for allowing the pigeons near the air-conditioning units and failing to warn tenants.

The lower court ruled that the property owner’s insurer (California Capital Insurance Co.) must shoulder the $1.9 million settlement with the tenant, and the manager’s insurer need not share in the costs because it had a legitimate carveout in its policy. The Court of Appeal affirmed.

The Court of Appeal found there was an “other-insurance endorsement” in the policy allowing it to be counted as excess insurance if other coverage was available. Although California Capital argued this was an “escape clause” and, therefore unenforceable under a 2002 California Supreme Court decision, the appellate court was not convinced. The Court found that such clauses are enforceable in California in limited circumstances involving a narrow clause within the policy. This carveout applied to this particular scenario.

Silvino Perez et al. v. Community Regional Medical Center et al.[3]

A jury in Fresno County recently awarded a whopping $68 million to Plaintiffs in a medical malpractice case alleging a botched open-heart surgery left a patient in a permanent near-vegetative state. $12.4 million of this was designated to punitive damages.

The jury found the defendant-doctor negligently performed an aortic valve replacement, performed an unanticipated and unexplained right coronary artery reimplantation, and hid the fact he made a certain type of aortic repair. This led the jury to conclude the doctor acted with malice, oppression, or fraud, which served as a basis for the punitive damage award.

Plaintiffs reportedly intend to argue the verdict is not subject to MICRA, due to the finding of malice, and that Plaintiffs should be allowed to recover the $50 million the jury awarded for pain and suffering. While this issue will be decided at a later date, this verdict is one of the record highest awards in a medical malpractice/personal injury suit in Fresno County.

Alice Mayall v. USA Water Polo Inc.[4]

Plaintiff, Alice Mayall filed suit on behalf of her daughter and other current and/or former water polo players when her daughter sustained injuries after playing in a water polo game in February 2014.  The athlete was struck in the face by a ball. The game was not stopped following the incident, and she received further hits to the head in additional games the same day, but was not evaluated or treated.

Plaintiff alleged USA Water Polo failed to implement consensus standards of care for removing athletes who show signs of concussions, and the organization had no youth protocols during the relevant time period. The lower court dismissed the suit, holding the doctrine of primary assumption of risk established the duty owed by the defendant. This doctrine, as USA Water Polo argued, does not require organizers of sporting events to protect participants from injuries caused by risks inherent in the activity. Plaintiff argued there is significant (non-inherent) risk that is involved with putting a player back into a game who has not fully recovered from an injury. The Court of Appeal sided with the defense, stating it had to judge the case by the law, and not by what the justices felt was good policy.

[1] Coalition Against Distracted Driving et al. v. Apple Inc. et al., Case No. B278992, Court of Appeal of the State of California, Second Appellate District.

[2] Atain Specialty Insurance Co. v. California Capital Insurance Co., Case No. 16-17221, United States Court of Appeals for the Ninth Circuit.

[3] Silvino Perez et al. v. Community Regional Medical Center et al., Case No. 13CECG03906, Superior Court of California, County of Fresno.

[4] Alice Mayall v. USA Water Polo Inc., Case No. 16-56389, U.S. Court of Appeals for the Ninth Circuit.

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