Declarations and Exclusions

An Ounce of Prevention I -- Landlord Potentially Liable for Tenant’s Murder When Killer Entered Through Unrepaired Door

The Court of Appeal, in a case out of San Diego, has held that a landlord who failed to replace a missing pane of glass in a tenant’s door may be partially liable for the death of an occupant of the apartment killed by an assailant who was able to gain entry by reaching the doorknob through the space where the pane would have been.

After a fight with her boyfriend Jesus Vasquez, Abigail Ramirez moved into an apartment occupied by her parents. The front door of the apartment incorporated a window made of panes of triangular and diamond-shaped glass. One pane had been missing since the parents had moved in. Despite repeated requests, the landlord had not yet replaced it. The empty space had initially be covered with cardboard, later with thin plywood held in place with finishing nails.

Vasquez came to the apartment, angry and wanting to speak with Ramirez. Ramirez and her other refused to let him in. Vasquez pushed the plywood out of the way -- he testified that he would not have risked cutting himself by breaking an actual glass pane -- and reached the doorknob. He entered, incapacitated Ramirez’ mother and stabbed Ramirez to death. Vasquez was subsequently convicted of murder.

The heirs of Abigail Ramirez sued the building owners for damages for wrongful death. The owners moved successfully for summary judgment, arguing that Vasquez’ conduct had been unforeseeable, and that they had no duty to replace the pane of glass in order to prevent that sort of attack. The Court of Appeal reversed, holding that while Vasquez was plainly the principal cause of death, the landlord may also bear responsibility as a result of failing to take simple steps to maintain the window as a “first line of defense.”

The appellate court lays out a lengthy history of California law on the duty of landowners to take preventive measures to inhibit criminal acts on their premises. Distilling those cases, the court sets out a three-step test to determine the scope of a landowner’s duty:

First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. This frames the issue for the court's determination by defining the scope of the duty under consideration. Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case. Third, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.

Applying this analysis to the case before it, the Court concludes that , “if the facts known to Owners were sufficient to notify them of a slight likelihood that an intruder might seek to enter the apartment, they had a duty to take the minimally burdensome steps available to restore the integrity and security provided by a repaired front door.”

The decision in Vasquez v. Residential Investments, Inc. (May 4, 2004), Case No. D042575, can be found at these links in PDF and Word formats.

Update: Scooters and Skaters, Grass and Gates, Pot and Potholes

In January, Decs & Excs reported on an appellate decision holding that an 11-year old using a scooter to get from Point A to Point B -- as opposed to showing off or engaging in competition -- is not to be deemed to have "assumed the risk" of injury when she and her scooter meet with an uneven stretch of payment.

Now, Walter Olson reports at Overlawyered that another panel of the Court of Appeal, in an unpublished decision, has extended the rationale of the earlier case to permit recovery by a skateboarder who crashed into a gate in a public park after dark. The court notes that the skateboarder was "riding his skateboard for transportation, not to perform stunts", notwithstanding the evidence that he was doing so "after smoking 'a bowl' (of marijuana)".

Thanks to Walter as well for his kind link to our earlier report on the California Supreme Court's recent clarification of the law of Malicious Prosecution.

Please Release Me -- Waiver Agreement to Access Auto Race Pit Area Does Not Relieve Racetrack of Liability for Collapse of Adjacent Bleachers

The Court of Appeal for the Fifth District has found that a release of liability executed by a patron at an auto race as a condition of being allowed to view the race from the pit area was ambiguous and did not relieve the racetrack owner from potential liability for the patron's injuries caused when the pit area bleachers collapsed.

George Sweat attended a race at the Bakersfield Race Track. He paid an extra fee to be admitted to the pit area at one end of the circuit. Patrons who purchased admission to the pit area bleachers during the race were required to accept and sign an agreement releasing the track owner from liability for injury they might sustain. However, it was also track policy to permit patrons to enter the pit area after the conclusion of a race without requiring a similar release from them. While Sweat was watching the race, a portion of the pit area bleachers collapsed and he was injured. The trial court entered judgment in favor of the race track, finding that the release agreement relieved it of liability. The Court of Appeal disagreed, reversed the judgment and remanded the case for a determination whether the cause of the collapse had been some negligence on the part of the track.

On appeal, the Court was required to determine whether the release was drafted with sufficient clarity that it could be held to bar liability for any injury within the pit area, even when that injury did not arise from the particular dangers associated with auto racing. Ultimately, the court concluded that the release was not clear on this point. It therefore held that the release was only intended to relieve the track of race-related liabilities, and not from the more general and independent risk associated with faulty construction of track facilities such as the bleachers.

[N]owhere in the present release does it say that the speedway is released from liability whether or not race activity is occurring. As we have already determined here, the purpose of the present release was not merely to give access to the restricted areas of the speedway, but to require the releasee to assume the risk of injury as a result of being in close proximity to the dangerous activity of automobile racing and any further risk that might result from the activity of observing such a race. Access to the restricted area here was not the object or purpose for which release was given; rather, it was observation of the event from that close-up perspective.

* * *

Here, appellant’s express assumption of risk would cover all hazards related to the automobile race and its observation. As appellant points out, those might include a tire separating from a car and hitting someone, a car leaving the track and striking a spectator, or someone being burned by a crash. This is not an exhaustive list. One can even anticipate the flying tire, the errantly driven car, or the flames from the crash causing the collapse of bleachers. The race activity might lead to less dramatic accidents: a person slipping on automotive grease in the pit area, or even a race observer slipping on spilled soda while keenly watching the race as he or she steps through the bleachers. The release agreement here does not, however, contractually charge appellant with assuming the risk of injury from defectively constructed or maintained bleachers, should a full trial on the merits establish such facts.

The decision in Sweat v. Big Time Auto Racing, Inc. (April 27, 2004), Case No. F043071 can be accessed at these links in PDF
and Word formats

An Accidental Tourist: U.S. Supreme Court Finds Airline Liable for Death of Passenger From Second-Hand Smoke Exposure

This week, a divided Court weighed in on the question of what constitutes an "accident" under the Warsaw Convention, the international treaty governing the responsibilities and liabilities of international air carriers. In an opinion by Justice Thomas, the Court concluded that the repeated refusal of a flight attendant to relocate a passenger away from the aircraft's smoking session constituted an "accident," so that the airline can be held liable for the passenger's death as a result of an acute asthmatic reaction to cigarette smoke.

Here is the summary of facts set forth in the Court's Syllabus to the case:

Under Article 17 of the Warsaw Convention (Convention), an air carrier is liable for a passenger’s death or bodily injury caused by an “accident” occurring on an international flight. 'Accident' refers to an 'unexpected or unusual event or happening that is external to the passenger', not to 'the passenger’s own internal reaction to the usual, normal, and expected operation of the aircraft.' Air France v. Saks, 470 U. S. 392, 405, 406. While Rubina Husain (hereinafter respondent) and her husband, Dr. Hanson, were traveling overseas, she requested that petitioner Olympic Airways provide seats away from the smoking section because Dr. Hanson had asthma and was sensitive to secondhand smoke. After boarding, they discovered that their seats were only three rows in front of the smoking section. A flight attendant refused respondent’s three requests to move Dr. Hanson. As the smoking noticeably increased, Dr. Hanson walked toward the front of the plane to get fresher air. He then received medical assistance but died. Respondents filed a wrongful-death suit in state court, which was removed to federal court. The District Court found petitioner liable for Dr. Hanson’s death, and the Ninth Circuit affirmed, concluding that, under Saks’ definition of “accident,” the flight attendant’s refusal to re-seat Dr. Hanson was clearly external to him, and unexpected and unusual in light of industry standards, Olympic policy, and the simple nature of the requested accommodation.

The Supreme Court majority agrees with the lower courts that the flight attendant's conduct constituted an "accident" and that the airline is liable under the Warsaw Convention even though the principal cause of death was in fact Dr. Hanson's physical reaction to what were then "normal" operating conditions, i.e., the presence of a smoking section.

The decision and opinions in Olympic Airways vs. Husain (February 24, 2004), Case No. 02-1348, can be accessed at this link in PDF format.

Because I Could Not Stop for Death: Trial Court Abused Its Discretion in Refusing Continuance After Death of Plaintiff's Attorney

The Court of Appeal for the Second District has ordered the continuance of a trial for six months and the reopening of discovery after the trial judge refused to do so. The opening paragraph of the appellate court's decision begins with a firm statement of the obvious:

If plaintiff's counsel's serious physical illness and its debilitating effects culminating in death during the final stages of litigation are not good cause for continuing a trial and reopening of discovery, there is no such thing as good cause. A plaintiff in a personal injury action is not chargeable with the continued good health of his or her attorney. Forcing such a plaintiff to trial without counsel or adequately prepared counsel is not likely to ensure fairness, the overall policy of the law.

Briefly, counsel for plaintiff in a personal injury case was suffering from advanced pancreatic cancer. Based on his ill health, he obtained an order continuing trial for three months. Counsel died one month later. The plaintiff sought and obtained new counsel, who needed time to prepare for trial. When new counsel made that request, the trial court refused to grant any but the briefest of continuances -- the new date conflicted both with counsel's schedule and with plaintiff's own impending surgery -- and refused to reopen discovery to permit new counsel to prepare for trial. In granting plaintiff's petition for a writ, the Court of Appeal finds that the trial judge abused his discretion as a matter of law.

Perhaps the most remarkable portion of the appellate decision is the description of events at the hearing on the second motion to continue the trial. Both the judge and defense counsel are portrayed as almost irrationally firm in their positions, refusing to grant any quarter in light of the plaintiff's unusually difficult position.

Real party [i.e., the defendant] opposed the continuance, arguing the trial date had already been continued once to accommodate [attorney] Stewart's illness. Real party asserted he would be 'at a disadvantage' if petitioner designated additional experts because costs would increase. He also claimed petitioner had unreasonably delayed finding new counsel. Real party concluded by asserting: '[I]t is obvious that plaintiff would not be injuriously affected by denial of the continuance. The time of the court should not be wasted by failure of plaintiff and counsel to be prepared and for plaintiff to shop around for attorneys.'

At the hearing, the trial court noted that it continued the first trial date for three months due to Stewart's illness and said: 'And now a month after he dies, you come in and ask for more time. That could have been done better.' Petitioner explained that he learned of Stewart's death on September 29, 2003, and that he started looking for a new lawyer that day. He denied real party's claims he had 'known for months' that Stewart was terminally ill. Real party contended petitioner should not be permitted to supplement his expert witness list because the terminally ill Stewart had missed the deadline to do so: 'That was his decision as attorney. You can't change that after you die. That will prejudice my client.' Without requiring real party to provide any additional explanation of the potential prejudice, the trial court continued the trial date to January 26, 2004, and denied the request to reopen discovery. The trial court apparently did not consider that Rosenberg was unable to start trial on that date, or that petitioner was scheduled for spinal surgery December of 2003.

Tough crowd.

The decision in Hernandez v. Superior Court (February 23, 2004), Case No. B171030, can be found at these links in PDF and Word formats.

Know Your Limitations: Extended Statute of Limitations for Personal Injury Claims is Not Generally Retroactive

In 2001, the California Legislature amended the Code of Civil Procedure to lengthen the statute of limitations for most personal injury claims from one year to two years. (Statutes of limitation limit the time in which a lawsuit must be filed once a claim has arisen. Previously, most personal injury suits in California had to be filed within one year of the date of injury. The new two year period puts California in line with the period in a large number [possible a majority] of other states.)

The extended statute of limitations came into effect on January 1, 2003, except as it applied to claims arising from the terror attacks of September 11, 2001. As to those claims -- which were in danger of becoming time-barred before the families and victims were required to elect whether to waive their rights to sue by opting in to the Federal 9/11 compensation plan -- the time extension was made retroactive.

It appeared to be clear on the face of the new statute that an ordinary (not terrorism-related) personal injury claim that was already barred as of January 1, 2003 -- i.e., claims for injuries taking place on or before December 31, 2001 -- would not be revived by the extension. The Court of Appeal for the Second District has now confirmed that analysis.

John Krupnick was injured when he slipped and fell on January 26, 2001. He did not file his lawsuit until January 8, 2003. The trial court dismissed the case, finding that it became time-barred on January 2002 and was not revived by the extension that became effective in 2003. On appeal, the court affirmed the dismissal.

The appellate decision provides a cogent primer on statutory construction, particularly the principal that the specific listing of one circumstance -- here, the specific language of the statute making the extension retroactive for a certain class of claimants (9/11 victims) -- is to be construed as showing the Legislature's intent not to apply the same rule to circumstances not listed -- everyone else.

The decision in Krupnick v. Duke Energy, (Feb. 18, 2004), Case No. B168117, can be found at these links in PDF and Word formats.

NOTE: While the statute of limitations has been extended to two years in most personal injury cases, that extension does not apply to all such claims. Types of claims for which separate specific limitations periods are established -- such as medical malpractice claims -- remain subject to their own, often shorter limitations period. Consult your attorney, not this weblog, in your particular case.

Update: Settlement Reached in Bronco Rollover Suit

Overlawyered reports that the Ford Motor Company has settled the prominent Bronco rollover case, Romo vs. Ford Motor Company.

The original judgment in the case was approximately $295 Million, including punitive damages of $290 Million. In the wake of the U.S. Supreme Court's revisitation of punitive damages in Campbell v. State Farm, the California Court of Appeal reduced the punitive damage award from $290 Million to slightly more than $23 Million, as Decs & Excs previously reported here. The final settlement figure is reported to be $34.5 Million (some substantial percentage of which likely goes to the Romo family's attorneys for their many years of service).

The Court of Appeal's decision is unaffected by the settlement, and will remain citable for its detailed analysis of post-Campbell punitive damage analysis in California.

A Mean Motor[less] Scooter -- 11-Year Old’s Injury on City Sidewalk Not Necessarily the Result of “Assumption of the Risk”

Engaging in a sporting activity that involves a known element of risk of injury? Under California law, if you are injured by that known risk your recovery against others whose negligence contributed to your injury may be barred by the doctrine of “primary assumption of the risk.” Does the doctrine apply to a child injured while traveling along an uneven sidewalk on a scooter? The Court of Appeal is skeptical. The court’s summary:

Tatiana Childs fell and suffered serious injury when she rode a small ‘razor’ scooter over an uplifted section of sidewalk on a residential street in the County of Santa Barbara. She sued the County contending that the sidewalk constituted a dangerous condition of public property. The trial court ruled that the doctrine of primary assumption of risk barred liability because, as a matter of law, riding a scooter is a recreational activity, and falling is an inherent risk of the activity. She appeals a summary judgment granted in favor of the County. (Code Civ. Proc., § 437c, subd. (c).)

We conclude that riding a scooter is covered by the doctrine of primary assumption of risk only when the activity involves an element of danger, requires physical exertion and skill, and includes a competitive challenge. A triable issue exists in this case regarding whether Tatiana was riding her scooter in such a manner. Accordingly, we reverse.

The County argued that falling from a scooter is a risk inherent in the use of the scooter, and that its uneven sidewalk did not increase that inherent danger. The Court, to the contrary, concludes that the risk of injury is not inherent in simply using a scooter. Rather, the risk to which “primary assumption of the risk” relates requires a showing that the scooter was being used in a risky or competitive fashion.

In support of its motion for summary judgment, the County relied on allegations in the complaint to establish that Tatiana was riding a scooter on a residential sidewalk and fell ‘as she rode over a break in the sidewalk that was raised more than three inches above the adjoining sidewalk section.’ The County offered no evidence that she was riding at any particular speed, or with other children in a structured or unstructured contest such as a race, or was testing the limits of her ability or the scooter, or that she was attempting any trick or maneuver requiring skill. Based on the evidence, Tatiana may have been engaged in no more than the diversion of getting from one place to another through the use of a child's toy with wheels. Further, the characteristics of the scooter show that it was not a formidable means of transportation. It was lightweight and could be folded up into something not much larger than a breadbox. And, Tatiana testified that it ‘looks like a normal scooter, except it's a lot smaller.’

* * *

Application of the doctrine of assumption of risk is determined by the manner in which equipment is used, not the manner in which it can be used, and merely using recreational equipment for pleasure does not trigger the doctrine. To conclude otherwise would mean that because a car can be used in a race, riding in a car is participation in a sport. Similarly, it would mean that because a bicycle can be used in a race, riding a bicycle as a means of transportation is participation in a sport. There are no cases holding that the use of an automobile or bicycle or other equipment is automatically subject to the assumption of risk doctrine solely because the equipment can be used in a sport or sports-related activity.

[All emphasis added.]

The decision in Childs v. Superior Court of Santa Barbara County (January 22, 2004), Case No. B162350, can be found at the following links in PDF and Word formats.

The 411 on 911: Public Entity Not Liable for Dispatcher's Negligence in Handling Emergency Calls

The California Supreme Court, disapproving earlier case law, has ruled unanimously that public entities operating "911" emergency telephone services generally cannot be held liable for errors, delays or failures by 911 dispatchers handling those emergency calls. The Court summarizes its conclusions in the opening paragraph of its opinion:

In California, public agencies each year receive millions of 911 dispatch calls seeking emergency, medical, and fire services. [Citations.] In this case, we must decide whether public entities employing emergency dispatchers are subject to direct or vicarious tort liability for injury attributable in part to a dispatcher’s failure or delay in responding to a 911 call. We conclude that, based on applicable statutory provisions and the legislative policies underlying them, no statute imposes direct liability on public entities in such situations [citation], and vicarious liability [citation] is limited to cases involving gross negligence or bad faith [citation]. Plaintiffs have failed to plead facts disclosing any acts of gross negligence or bad faith on the part of defendants or their employees, and they presently assert no additional facts that might justify an amended complaint. Accordingly, we will affirm the judgment of the Court of Appeal, which had affirmed a judgment of dismissal in favor of defendants.

The Supreme Court disapproves the contrary holding of the Court of Appeal in Ma v. City and County of San Francisco (2002) 95 Cal.App.4th 488.

The decision in Eastburn v. Regional Fire Protection Authority (December 18, 2003), Case No. S107792 can be found at these links in PDF and Word formats.

Holding the Line: Two Appellate Courts Decline to Expand Duties of Hospital and School District

Two new California appellate decisions continue the courts’ ongoing exploration of the scope of duties of care. In one case, the court finds that a hospital could not be held liable for the emotional distress that a patient’s adult daughter suffered upon discovering that she had not been notified of her mother’s death and cremation. In the second case, the court found that a school district owed no duty to prevent a six year old student from being struck and injured by an automobile while crossing a street adjacent to her school after being dismissed for the day.

In the hospital case, Spates v. Dameron Hospital Assn. (Dec. 11, 2003), Case No. C043762, the plaintiff had visited her aging mother in defendant hospital most recently some 9 months prior to her mother’s death. Although the daughter had left information concerning her current address on that visit, the information was not contained in the hospital’s main file relating to her mother. When the mother died, the hospital tried the number it had in its main file and contacted the convalescent facility at which the mother had been living; none of those efforts led to the daughter’s current location. Not having found the next of kin, the hospital turned the remains over to the county coroner, who eventually disposed of them by cremation. The Court of Appeal concluded that the hospital’s efforts to locate plaintiff had been reasonable, that its actions in then turning the remains over to the coroner were authorized by law, and that there existed no “direct relationship” between the hospital and plaintiff that would allow plaintiff to recover emotional distress damages arising from the hospital’s alleged negligence. The decision can be found at these links in PDF and Word formats.

In the school case, 6-year old Norma Guerrero had been dismissed with the rest of her class at the usual time of 2:00 in the afternoon. Her older brother Miguel’s 4th grade class was dismissed on schedule at 2:25. While he and Norma were waiting to be picked up, Miguel crossed the street to see a toy being played with by another student. Norma followed, then returned across the street toward the school. On that return crossing, Norma was struck and injured by an automobile. The court concluded that the school’s duty of care ended when Norma had been released in due course in the company of her older sibling.

In order for this court to construct a duty of care under the circumstances, we would have to conclude that the responsibility to ‘exercise reasonable care in permitting students to leave school premises’ . . . continues until the children have been safely picked up or perhaps safely returned home in the case of those who may walk home. No case has created such a sweeping responsibility for our public schools and we decline to be the first to do so.

Rejecting the position of the dissenting judge that the school district had been negligent while Norma was still on the school’s premises, the majority added:

There is no evidence of any act, or failure to act, by school personnel while Norma was on school grounds that could be described as negligent. Indeed, the record shows that Norma was kept on school grounds until her older siblings were released from school. At that point Norma was routinely released with her siblings to leave the school and await pick up by her parent at the designated place. There is no evidence the District undertook any duty to supervise Norma until she was safely united with her parent and nothing to show that it erred in the manner in which Norma was released from school on the date of the accident.

While a broad duty to ensure that each child either arrives home safely or is picked up by a parent might well advance the interests of child safety, the majority could find no basis for such a broad duty in the controlling statutes, and declined to adopt so broadly expansive a rule on its own.

The opinion in Guererro v. South Bay Union School District (Dec. 12, 2003), Case No. D040351 can be found at these links in PDF and Word formats.