Sacramento Personal Injury Lawyer Blog

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

3. Percipient non-party witness #3, Kim Perry saw Ms Chance walking "normal for an old person" in the crosswalk before a big bus turned left striking her in the center of the crosswalk. (RT of Perry's Direct Testimony, 13:10 - 14:13.)

Argument: Like Jones, Perry was more distant and lower to the ground than Davie sitting high in the front seat of a bus with panorama window view including his left and front. (Trial Court Exhibit No. 1, Exh. 7). But for his concern about oncoming southbound traffic on Fourth Street coming from his right, there was no reason he should not have seen Chance as he approached and entered the intersection.

4. Even hearsay non-party witness #4, Petra White, in her sworn deposition, had no problem seeing Chance and indicated that the bus driver saw her as well. White reports seeing the bus start and stop several times in response to Chance stepping off and then retreating back onto the east curb before she entered the crosswalk. (White Depo., 39:14 - 41:20.) Further, White admits to seeing Chance leave the eastern curb of Fourth Street either 8, 4, or 5 feet south of the Elm Street Curb walking straight then losing sight of her due to the bus blocking her view until seeing Chance struck by the front of the bus, knocked out of her shoes and carried by the bus some distance before dropping to the street. (White Depo., 15:7-25; 20:15.)

Continue reading " Bus Passenegers Witness Collision With Sacramento Pedestrian, Part 6 of 13 " »

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

SUMMARY OF EYEWITNESS TESTIMONY
All three non-party eyewitnesses testified they saw a pedestrian (Chance) walking in the crosswalk before the turning bus struck her:

1. Percipient non-party eyewitness #1, Annie Timmon, was a passenger on the subject bus sitting behind the driver. She testified via videotape that while sitting at a window several rows behind Davie, she saw Ms Chance walking "normal" on the sidewalk alongside the bus before it turned. She saw Ms. Chance walking beyond the curb, after he front of the bus had also entered the intersection. Ms. Timmon testifies: I saw they were going to touch... I thought I was in Mexico, and in Mexico the pedestrian waits in the middle of the street waiting for the bus to go by. I thought that she was going to stop at the center at the cane - the lane that it's at the center. And when I saw that she was about to have contact with the bus, then I screamed... Q: Did you see what happened to this pedestrian? A: No ... I couldn't see. Q: Where was the pedestrian when you last saw her? A: Ahead when she was about to have contact with the bus. (Timmon Depo., 16:7 - 18:1.)

Argument: This testimony clearly supports Plaintiffs contention that a normally walking Chance was visible to the left of the bus driver Davie after he had entered he intersection but before he started to turn left striking her. Since she was walking alongside the bus, she was in the crosswalk area just having exited the sidewalk. Molly Chance had every right to enter the crosswalk on a green signal even after the bus had entered the intersection because she was walking straight and therefore had the right of way over the turning Davie just like eastbound pedestrians Davie had stopped for. If Timmon could see Chance as bus and pedestrian passed each other, certainly Davie should have seen her too, if he had looked to his left.

Continue reading " Many Eyewitnesses To Bus Hitting Sacramento Woman, Part 5 of 13 " »

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

Although Chance's ten-year-old car accident failed to illuminate any issue before the jury, the information did help assuage any pangs the juror's consciences may otherwise have felt for leaving her disabled and confused for the rest of her life without compensation. When they learned, again over Plaintiff counsel's objection, that Ms. Chance concealed/forgot a 10-year-old automobile accident during which she broke her leg without head trauma and that Ms. Chance was treated at that time under a different name, she was the subject of jury speculation as to her character for lying and fraud.

However, under the influence of the aforementioned improper and fatally prejudicial testimony, the jury was motivated to and the majority of them did ignore the courts instructions and failed to deliberate any evidence inculpating Defendant of negligence. The jury was charged as its first task to answer the special verdict question: Was Defendant Davie of USA negligent? Instead of taking the trouble to consider three days of testimony, photographic evidence and law provided them to answer that question, as juror Mike Brown's declaration makes clear, the jury majority jumped to the question Was Molly Chance negligent? which required no time or thought at all based on their vivid recollection of Police Officer Smith's opinion and their newly acquired negative predisposition to a lying, "cheating" Chance.

C. There is insufficient evidence to support the jury's verdict. (C.C.P. section 657(6))
In Hendricks v. Pappas (App. 1947) 82 Cal.App.2d 774, 187 P.2d 436, the trial court granted the plaintiffs new trial motion following a jury trial involving an action against a motorist by a pedestrian for injuries sustained by the pedestrian when struck by automobile while he was crossing street.

Continue reading " City Bus Collides With Sacramento Pedestrian, Part 4 of 13 " »

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

B. It was an abuse of discretion for the court to allow remote, irrelevant but highly prejudicial testimony to be admitted concerning Chance's ten-year-old traffic accident and hospitalization. (C.C.P. section 657(1))

The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will ... (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. Ev.C. § 352.

Defendant argued and the court ruled that the relevance of this information went to the veracity of the Chance but this analysis is flawed in two ways:

First, Ms. Chance's "veracity" was never in issue. No fact or contention at trial was supported by her testimony and was never solicited by either party. Because of her brain injury and retrograde amnesia, she neither testified as to how the accident happened nor to the nature and extent of her injuries. A fortiori, both sides extensively tested her for signs of attempts to game the mental impairment evaluation process. On all occasions she passed with high scores for veracity. Brain damage is a significant part of Chance's consequential damages as presented by multiple eminent mental health care professionals including defendant's own designated neuropsychologist expert, Dean C. Delis, Ph.D., Professor of Psychiatry, UCSD School of medicine. The fact of her brain injury was also evidenced just days after the bus accident at the brain injury clinic referral in the initial emergency hospitalization discharge records. As such, Chance's cognitive faculties were objectively proven to be permanently impaired including memory and judgment without any reliance on her direct testimony.

Continue reading " Female Pedestrian From Sacramento Injured By City Bus, Part 3 of 13 " »

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

LEGAL STANDARD FOR MOTION
C.C.P. section 657 provides, in part: The verdict may be vacated and any other decision may be modified or vacated, in whole or in part, and a new or further trial granted on all or part of the issues, on the application of the party aggrieved, for any of the following causes, materially affecting the substantial rights of such party:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.
2. Misconduct of the jury.
3. Insufficiency of the evidence to justify the verdict or other decision.
4. Error in law, occurring at the trial and excepted to by the party making the application.

ARGUMENT
A. Ignoring the Court's Limiting Instruction as to the Import of Officer Smith's Determination of Chance's Violation of the Vehicle Code was Misconduct of the Jury, as Was their Refusal to Deliberate the Foundational Facts of Officer Smith's Opinion (C.C.P. section 657(2))

Following Officer Smith's testimony opining Chance was in violation of the vehicle code by her failure to yield right of way to oncoming traffic outside a crosswalk (CVC 219548(a)) aka jaywalking ) the court gave the jury a limiting instruction as follows: The officer's determination that Ms. Chance violated the vehicle code does not mean that she's at fault. He is not saying who is at fault for the accident, so that everyone is aware of that. (Reporter's Transcript ( RT ) of Smith's Testimony, April 28, 2008, 31:5-8.) According to the declarations of Jurors Mike Brown and Alice Greene, the jury disregarded that instruction instead treating Smith's opinion as a finding of fault inculpating Chance of the accident. Compounding that misconduct, the jury then refused to deliberate the evidence that contradicted Smith's opinion despite exhortations of the jury foreman to do so. In Bormann v. Chevron USA, Inc. (1997) 56 Cal.App.4th 260, 65 Cal.Rptr.2d 321, the cour: explained that the jury must deliberate collectively. In that case, prior to deliberations, one juror wrote out a statement of her opinions and read it to the other jurors. The Court explained that this was permissible only if that juror was willing to continue with deliberations as required by C.C.P. section 611. The trial court accurately explained to the jury that A position on paper does not add or detract from anything, except that you may not simply say, Here. Read this, I have nothing else to say,' because, if you do that, you are not deliberating. Id. at 262.

Continue reading " Woman From Sacramento Hit By Bus, Part 2 of 13 " »

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

Plaintiff Molly Chance moves this court to vacate judgment in this matter and order a new trial under C.C.P. section 657.

INTRODUCTION
Following five days of testimony, a jury rushed to verdict within minutes of electing a foreperson. Despite sworn testimony of all four non-party eyewitnesses clearly seeing Plaintiff Molly Chance ( Chance ) before being struck by a bus, a jury found Defendant's employee, Paul Davie ( Davie ) who had a closer and less obstructed view than any of the other witnesses, not negligent in failing to see Chance either before or while making a left turn consequently hitting her with his employer's bus. As will be discussed in the following points and authorities, this travesty of justice was the product of jury misconduct motivated by extreme prejudice fomented against Chance by objected, inflammatory, irrelevant and otherwise inadmissible evidence.

In contravention of the court's instructions, there was no deliberation concerning the law and evidence that addressed Davie's duties and conduct. Only the jurors' collective recall of an investigating traffic police officer's unfounded opinion that Chance was jaywalking when struck by defendant's bus was deliberated. Already biased against Chance due to irrelevant and prejudicial evidence of a ten-year-old accident, the policeman's opinion was enough for a majority of the jurors to place all the responsibility for the incident on her In the interest of serving justice, this verdict should be set aside and a new trial ordered. (See Part 2 of 13.)

Continue reading " Sacramento Pedestrian Hit By Bus, Part 1 of 13 " »

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

OTHER OUT OF STATE CASES HOLD THAT AMUSEMENT PARK RIDES CAN BE CONSTRUED AS COMMON CARRIERS

Defendants cite cases from Georgia, Virginia, Iowa, Florida and Utah to make the argument that common carrier liability should not extend to operators or owners of an amusement park. As Plaintiff has demonstrated by the Elmer case, the most recent trend allows recovery for amusement rides under common carrier liability. Likewise, other states have held amusement rides to be common carriers. See e.g., Lyons v. Wagers (1966 Tenn. Ct. App.) 404 SW2d 270 (operator of amusement ride known as the Mary Mixer held to highest degree of care equivalent to that of a common carrier); Coaster Amusement Co. v. Smith (1940 Fla.) 194 So. 336 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Bibeau v. Fred W. Pearce Corp., (1928 Minn.) 217 N.W. 374 (operator of roller coaster held to highest degree of care equivalent to that of a common carrier); Cooper v. Winnwood Amusement Co., (1932 Mo. Ct. App.) 55 S.W.2d 737 (operator of a roller coaster held to the highest degree of care for passenger safety); Sand Springs Park v. Schrader (1921 Okla.) 198 P. 983 (operator of a scenic railway held to the duty of highest care, skill and diligence).

The most recent case, Elmer v. Speed Boat Leasing, Inc., et al., supra, illustrated the connection of amusement rides to common carrier liability as demonstrated above. The court in Elmer relied on an out of state court decision, i.e. the Supreme Court of Colorado, as persuasive authority. While these court decisions are not binding on the Court in the present case, they should be heavily considered in weighing the decision to factor amusement park rides in as common carriers.

Continue reading " Sacramento-Area Amusement Park Sued By Family For Wrongful Death, Part 10 of 10 " »

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

Additionally, the California Supreme Court addressed this very issue in Smith v. O'Donnell (1932) 215 Cal. 714, an airplane collision case. In Smith, the California Supreme Court held that an airplane sightseeing ride over the ocean beginning and ending at the Long Beach Airport should have common carrier liability imposed regardless of the departure and arrival having the same location.

Further, it would be unsound that two passengers seated side- by-side on a tour bus who might have been injured during the carriage would be entitled to different standards of care depending of where each departed. If defendants' argument is followed, a passenger who exists a tour bus before returning to the place of departure would be entitled to a higher standard of care, while the passenger who stayed on to return to the original point of departure would be, by virtue of the fact that he started and ended up at the same place, entitled to a lower standard of care.

A PASSENGER'S INTENT IS NOT DETERMINATIVE IN DECIDING WHETHER COMMON CARRIER STATUS ATTACHES

Defendants argue against the application of common carrier status to the Dinosaur Attraction on the basis that carriage on the ride is sought for entertainment rather than transportation purposes. However, the subjective intent of a passenger is not determinative of the level of care that should attach to a carrier. The court in Squaw Valley upheld common carrier liability against a ski-lift operator irrespective of the fact that undoubtedly people go to ski resorts for entertainment and thrills.

Continue reading " Sacramento Family Files Suit For Wrongful Death At Theme Park, Part 9 of 10 " »

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

POINT OF DEPARTURE AND FINAL DESTINATION NEED NOT BE DIFFERENT TO WARRANT THE IMPOSITION OF COMMON CARRIER STATUS

Defendants argue that because the Dinosaur Attraction picks up and returns passengers to the same location it does not qualify as carriage in accordance with California's common carrier statute as the ride does not transport passengers from one place to another. The fact that the attraction may start and finish at the same location does not exempt it from common carrier liability.

As demonstrated above, the court in Elmer v. Speed Boat Leasing, Inc., et al., supra, held that despite the fact that the boat ride commenced and ended in the same location, common carrier liability still applied. Likewise, in the Buckskin Joe's case, the court did not find the absence of transporting the stagecoach from "point A to point B" to be a determining factor in its decision to uphold common carrier liability.

In its demurrer, defendants try to differentiate the Squaw Valley case to the present case by stating that under Civil Code §2168, an entity must transport goods or persons from place to place for profit. Defendants erroneously suggest that because the Dinosaur ride starts and finishes in the exact location, a common carrier liability theory is inapplicable.

Continue reading " Sacramento-Area Thrill Ride Leads To Wrongful Death, Part 8 of 10 " »

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

The California legislature intended the definition of common carrier to be broad. Absent a specific exclusion from the statute, amusement park rides fall within this realm. Thus, the Dinosaur Attraction is likewise a common carrier for which Universal Theme Park owes a duty to use the utmost care and diligence to its guests. This duty is imposed upon them by Civil Code §2100.

Additionally, a California court upheld common carrier liability against a ski lift operator. Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499. That court also stated that had the legislature intended to exempt chair-lift operators from common carrier status for the purpose of tort liability, it easily could have amended Civil Code §2168 to accomplish this objective. Id. at 1514. Ski-lift operators were not exempted from §2168, nor were amusement park operators. Until the legislature imposes this limitation, these entities can be subject to common carrier liability as long as they meet the requirements mentioned above.

MORE CASE LAW FAVORS PLAINTIFF'S POSITION THAT AMUSEMENT PARK RIDES SHOULD BE TREATED AS COMMON CARRIERS

As demonstrated by the court in Elmer, the split in authority whether amusement park rides and/or operators constitute common carriers tends to favor Plaintiff. Neubauer v. Disney, supra, identifies California cases which have further found attractions analogous to amusement park rides to be considered common carriers. For example, in McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489 the court found common carrier status in a guided tour mule ride which carried sightseeing passengers over a designated route between fixed points for a round trip fare. As noted above, the court in Squaw Valley found common carrier status on a chair lift carrying skiers at a fixed rate from the bottom to the top of the ski run.

Continue reading " Dinosaur Ride At Amusement Park Kills Sacramento Woman, Part 7 of 10 " »

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

CALIFORNIA LEGISLATIVE INTENT DEMONSTRATES A BROAD DEFINITION UNDER THE COMMON CARRIER LIABILITY STATUTE TO ENCOMPASS AMUSEMENT PARK RIDES

California is unique in that it has a statute for common carrier liability and therefore does not need to rely solely on case law authority. California Civil Code §2100 states:
A carrier of persons for reward must use the utmost care and diligence for their safe carriage, must provide everything necessary for that purpose, and must exercise to that end a reasonable degree of skill.

Civil Code §2168 defines who and/or what constitutes a common carrier in a tort action. This section states that everyone who offers to the public to carry persons, property, or messages, excepting only telegraph messages, is a common carrier of whatever of what he thus offers to carry. California has gradually adopted a broader definition of common carrier to encompass airplanes, buses, taxicabs, escalators, elevators, mule trains and ski-lifts. (Lopez v. Southern Calif. Rapid Transit Dist. (1985) 40 Cal. 3rd 780; Larson v. Blue & White Cab Co. (1938) 24 Cal. App. 2nd 576; Hendershott v. Macys (1958) 158 Cal. App. 2nd 324; Parker v. Manchester Hotel Co. (1938) 29 Cal. App. 2nd 446; McIntyre v. Smoke Tree Ranch Stables (1962) 205 Cal. App. 2nd 489; Squaw Valley Ski Corp. v. Superior Court (1992) 2 Cal. App. 4th 1499).

Universal Theme Park amusement park rides have been held to be common carriers under California's broad statutory definition of a common carrier. See Neubauer v. Disney (C.D. Cal. 1995) 875 Fed. Supp. 672 (Universal Theme Park's "Pirate Ship" was held to be a common carrier falling within California's statutory definition of a common carrier). The Neubauer court found that under California law a duty of utmost care and diligence upon a common carrier of paying passengers applied to Universal Theme Park. The court relied on the California legislature's long history of broadly defining a common carrier.

Continue reading " Suit Filed For Wrongful Death Of Sacramento Woman At Theme Park, Part 6 of 10 " »

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

In the present case, defendant erroneously argues that Ms. Demers' voluntary decision to ride the Dinosaur Attraction coupled with the fact that it was strictly for pleasure, disallows recovery under common carrier liability. Defendants' argument lays heavily in the fact that the Dinosaur Attraction starts and ends in the same location. However, an application of the reasoning in both Elmer and Buckskin Joe's to the case at hand clearly shows that Plaintiff has properly pled common carrier liability irrespective of destination and intention. Ms. Demers surrendered herself to defendants' custody and control when she placed herself on the ride, lost her freedom of movement and actions, and was a helpless passenger in the care of defendants. Ms. Demers could not have prevented the incident, nor was she in any way at fault in causing or contributing to her wrongful death.

This example is analogous to a passenger on an airplane. Should that airplane plummet to the ground, the passenger should not be held accountable simply because he voluntarily chose to board that particular airplane. Similarly, Ms. Demers' decision to ride the Dinosaur Attraction should in no way detract from Defendants' liability. Defendant had sole possession and power over her once the ride began and should be held accountable under the highest degree of care.

Continue reading " Woman From Sacramento Suffers Traumatic Brain Injury At Amusement Park, Part 5 of 10 " »

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

This test, hereinafter referred to as the "Buckskin Joe's" test, is a critical factor in light of all the controversy surrounding common carrier liability. While many courts focus on the destination and/or intention of passengers, the Buckskin Joe's test narrows the focus to the heart of the issue, i.e., who had control of the situation, and who had the power to prevent and/or cause the injury.

The Buckskin Joe's case involves a stagecoach ride patterned after the historic stagecoach rides enjoyed by early settlers in Colorado. This ride commenced and ended in the same place. The ride consisted of horses drawing a stagecoach wagon along a designated path. The pace of the ride varied from a slow walk to a gallop, to give paying riders thrill and excitement, simulating the sensation of the old west. Regardless of the fact that the ride did not transport passengers from "point A to point B," and was purely for entertainment, the court still determined that the absence of freedom of movement and control warranted a finding of common carrier liability.

This concurs with Plaintiff's allegations that neither destination nor intention are determining factors in whether a ride is deemed a common carrier. Rather, the focus lays heavily on the operator of the ride, who is in control and who has the ability to prevent and/or cause the wrongful death/injury to riders. This is the crux of the Elmer case. (See Part 5 of 10.)

Continue reading " Deadly Sacramento-Area Amusement Park Ride Results In Traumatic Brain Injury, Part 4 of 10 " »

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

DEFENDANTS OWED DECEDENT THE HIGHEST STANDARD OF CARE UNDER COMMON CARRIER LIABILITY BECAUSE DECEDENT LOST HER FREEDOM OF MOVEMENT AND ACTION ONCE SHE WAS PLACED IN DEFENDANTS' CUSTODY

In the most recent decision involving an amusement ride, a Texas appellate court found an operator of a business providing speed boat rides for amusement to be held liable under a common carrier theory for personal injuries suffered by the appellant on the boat ride. Elmer v. Speed Boat Leasing, Inc., et al. (2002) Tex. App. LEXIS 4670. The boat ride was designed solely for the purpose of providing an exciting and fun-packed ride. Its destination commenced and ended in the same location. Irrespective of these facts, the court reversed the district court's decision and remanded the cause for a new trial, finding that the defendant owed a high standard of care rather than merely a standard duty of care under a common carrier liability theory.

The Elmer case is the latest case to analyze the trend across the United States regarding the application of common carrier liability to amusement rides. The court recognized the split in authority whether amusement park rides should be properly labeled as common carriers. After extensive and widespread research of existing cases, the court determined the better reasoned cases upheld common carrier liability for amusement rides. The court was especially persuaded by the reasoning in Lewis v. Buckskin Joes's, Inc. (Colo. 1964) 396 P.2d 933 (the Supreme Court held that the highest standard of care should be applied to amusement rides). As stated, the court in Elmer endorse[d] the rationale of those courts which have held amusement ride operators to a higher standard of care. Tex. App. LEXIS 4670 at 10. The court found:
While appellees have argued, and some courts have stated, that amusement ride operators are not common carriers because they do not offer transportation from one locale to another, we find that reasoning unpersuasive... Instead, we find persuasive the analysis of the Supreme Court of Colorado, which stated:

Continue reading " Woman Sues Sacramento-Area Theme Park Over Deadly Ride, Part 3 of 10 " »

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

SUMMARY OF FACTS
This is an action for damages for wrongful death brought by the personal representative of the Estate of Claudia Demers, on behalf of the Estate and on behalf of the heirs of Claudia Demers against various separate and distinct corporations affiliated with The Universal Co. One of the Defendants is Universal World Co., the admitted owner and operator of Universal Theme Park.

One of the theories of liability alleged against Universal World Co. is based upon common carrier liability pursuant to Civil Code §2100 and §2101. Plaintiff will demonstrate how common carrier liability attaches to Universal World Co. with respect to the Dinosaur Attraction.

PLAINTIFF HAS PLED SUFFICIENT FACTS IN ITS COMPLAINT TO CONSTITUTE A CAUSE OF ACTION PURSUANT TO CCP SECTION 430.10.

In the fourth and fifth causes of action, dealing with common carrier liability, Plaintiff has alleged that certain of the Defendants operated the Dinosaur Attraction at Universal Theme Park. The Dinosaur Attraction is described as consisting of a vehicle, referred to as a dynamic ride vehicle, which is used to enhance the sensation of vehicular motion and travel that passengers in the vehicle experience. Paragraph 49 of Plaintiff's Second Amended Complaint states that the vehicle used in the Dinosaur Attraction is used to transport passengers while, at the same time, providing them with entertainment and thrill. The configuration of the vehicle resembles an off-road jeep. The vehicle moves along a predetermined path on a track.

Continue reading " Theme Park Ride Results In Wrongful Death Of Sacramento Woman, Part 2 of 10 " »

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

Plaintiff's Opposition to Defendants' Demurrer to Plaintiff's Second Amended Complaint

MEMORANDUM OF POINTS AND AUTHORITIES
SUMMARY OF ARGUMENT

This is an action for damages arising out of the injury to, and subsequent wrongful death of, Claudia Demers. On June 25, 2000, Ms. Demers, a young Sacramento woman on her honeymoon, rode the Dinosaur Attraction at Universal Theme Park. As a result of the unsafe and violent nature of the ride, she suffered a subarachnoid hemorrhage and hydrocephalus that required extensive hospitalization and multiple brain surgeries. She died of these injuries after incurring over $1 million in medical expenses.

The Complaint in this action was originally filed on September 25, 2001. Defendants thereafter filed a Notice of Removal of this action to federal court. That removal was untimely and ultimately a stipulation to remand the matter back to state court as signed by the Defendants and the Plaintiff, and Defendants paid to Plaintiff's counsel attorneys fees and costs in the amount of $2,850.00 for the untimely removal.

Plaintiff filed a First Amended Complaint for damages on or about January 30, 2002. Defendants filed a Demurrer June 7, 2002. The Court granted part of the demurrer allowing Plaintiff ten days for leave to amend the Complaint. Plaintiff filed a Second Amended Complaint on September 3, 2002.

Defendants filed another demurrer alleging that despite Civil Code §2100 and §2101, and the cases interpreting those Code sections, they cannot be held liable under common carrier law.

Continue reading " Sacramento Woman Dies At Amusement Park, Part 1 of 10 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

iii. The harassment was severe and pervasive, The harassing conduct by Plaintiff's supervisor is severe and pervasive enough to alter the terms and conditions of employment. There is a different standard applied with the harassment comes from a supervisor. When it is a supervisor, a hostile work environment can be created by one singular remark. Dee v. Vintage Petroleum. Inc., (2003) 106 Cal. App. 4th 30. Further, repeated use of profanity against an employee, in conjunction with even one remark about the protected class by a supervisor gives rise to a hostile work environment claim. Id. at 35-37. As set forth above, over the course of a few days she was repeatedly attacked, yelled at, cursed at, and numerous comments were made directly about her pregnancy. Because of the comments she became stressed out, developed cramps and bleeding and had to go on bed rest on two separate occasions.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER PUNITIVE DAMAGE CLAIMS

Evidence that a defendant acted with discriminatory intent and evidence of pretext provide sufficient basis to find that defendants acted with malice and oppression. Cloud v. Casey, (1999) 76 Cal.App.4th 895, 911. Further, evidence that a defendant tried to cover up the illegal reason with a false explanation also supports a finding of malice and oppression. Id. at 911. In other words, the same evidence that Plaintiff was fired in retaliation for her complaints of harassment/accommodation requests and because of her pregnancy is ample evidence to show malice and oppression. Plaintiff incorporates sections B & C where she lays out the retaliation and discrimination claims including all the pretext to support each claim.

Continue reading " Pervasive Workplace Harassment Results In Pregnancy Complications For Sacramento Employee, Part 19 of 19 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

i. Unwanted harassment because of her pregnancy/disability: Plaintiff was subject to abusive conduct because of her pregnancy. Verbal harassment by itself can support a hostile work environment claim. Lipsett v. University of Puerto Rico, (1st Cir. 1988) 864 F.2d 881, 905. Numerous negative comments were made about her pregnancy by Mr. Davis and Mr. Chan. Including: 1) Telling her multiple times (at least 10 times) that she is not wanted there because she is pregnant and she should either quit or go on disability, 2) Yelling that if she can't handle the job she should quit or go on disability, 3) saying that pregnant women have hormones and attitudes and she should quit or go on disability, 4) disciplining her for talking about her pregnancy, 5) telling her she cannot ask others to help her lift heavy items when her doctor told her not to do so because of her pregnancy, 6) calling her in the office 7 times to change a T-shirt that is fine to begin with, 7) telling her she cannot work unless her note is clearer when it was clear to begin with, 8) laughing at her over her complaints of harassment, 9) cursing at her (shit and fuck), 10) telling her that she is a bad person and 11) suspending her for wanting to go to the doctor. A hostile work environment can also be found when employees engage in forms of intimidation. Birschetein v. New United Motor Mfg., Inc., (2001) 92 Cal. App. 4th 994, 1001-1002[FN1]. As stated above, much of the harassment was intimidation over Plaintiff's job including yelling and swearing.

Continue reading " Sacramento Employer Subjects Pregnant Employee To Uninvited Harassment, Part 18 of 19 " »

(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace discrimination/sex harassment case and its proceedings.)

iii. The termination reasons are false which establishes pretext as well
Pretext can be shown by showing the termination reasons are not true. University of So. Calif, v. Sup. Ct., 222 Cal.App.3d at 1036. Here, the reason articulated is totally false. Plaintiff was never insubordinate, abusive or rude. Plaintiff never yelled or cursed. To the contrary she was professional at all times. Also, Plaintiff did provide the necessary paperwork for her leave and also called about when she could return to work.

iv. Failure to follow its own policies is evidence of pretext
Defendant's failure to follow its policy is evidence of pretext. Hill, 855 F.2d at 811; Christine, 785 F.2d at 586-87. Here, Defendant totally failed to follow its own mandatory policies to investigate claims of harassment. There was never any investigation into Plaintiff's claims of harassment. Mr. Davis never did anything to investigate Plaintiff's claims of harassment after she claimed she was harassed. He did not follow any of the steps including documenting, talking with Plaintiff, getting a written statement from Plaintiff, reporting the results to Plaintiff or telling Team Member Services of the complaints. All of which was required to do under the policies.

PLAINTIFF HAS AMPLE EVIDENCE TO DEMONSTRATE A TRIABLE ISSUE OF FACT ON HER HARASSMENT CLAIMS (CLAIMS 5, 6, 9 & 10)

PREGNANCY/DISABILITY HARASSMENT IS UNLAWFUL AND WHEN THE HARASSMENT IS DONE BY A SUPERVISOR THE AMOUNT OF HARASSMENT NEED TO BE ACTIONABLE IS MUCH LESS

Under the Fair Employment and Housing Act ( FEHA ), it is unlawful for any person or employer to harass an employee based on that employee's pregnancy or disability. Cal. Govt. Code § 12940(j)(1). Under FEHA, an employer is strictly liable for workplace harassment by a supervisor. State Dept. of Health Services v. Sup. Ct., (2003) 31 Cal. 4th 1026, 1042.

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(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this workplace harassment/sex discrimination case and its proceedings.)

3) Adverse action - Fired and the decision to fire her was made on June 23 - not disputed.

4) Other circumstances suggest discriminatory motive:

The timing of the action suggests a discriminatory motive between the pregnancy and the decision to fire her about one month later. Hanson v. Lucky Stores, Inc., (1999) 74 Cal. App. 4th 215, 224; Flait v. North American Watch Corp., (1992) 3 Cal. App. 4th 467, 476, 479).

Also, discriminatory motive can be established by statements by a decision maker, which shed light on the employer's true motivation. Reeves, 530 U.S. at 148; Cook, 69 F.3d at 1238. Again, both Mr. Davis and Mr. Chan constantly made negative comments about Plaintiff's pregnancy/disability including telling her to quit or go on disability, that a pregnant women is not wanted, that pregnant women have attitudes and hormones and should quit or go on disability, etc.

PLAINTIFF HAS AMPLE EVIDENCE OF PRETEXT
i. The timing of the termination supports pretext:
Pretext may be inferred from the timing of the discharge decision. Hanson, 74 Cal. App. 4th at 224; Flait, 3 Cal. App. 4th at 476, 479). Here, as stated above, the decision came within about one month of her disclosing she was pregnant. There were no plans to fire her before that point and she as considered at least an average employee up to that point.

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