The world is a very different place than it was when we wrote
the first edition of Accidents Happen. There are things in the
world now that simply didn’t exist then. Just as the record
industry had to adapt their legal philosophy when streaming
music services got started, there are plenty of new technologies
that will change the face of personal injury law in the future.

Self-Driving Cars As Defendants

It sounds utterly absurd, but this is now a reality. Recently, one
of Google’s experimental self-driving cars struck a city bus in
Mountain View, CA. While this wasn’t the first accident involving
a self-driving car, it was the first time the car was found to
be at fault.

Yes, the car was at fault.

Because of the way the software recognized road hazards,
the car moved to the left in order to avoid sandbags that were in
front of a storm drain. This caused it to hit an approaching city
bus. It was determined the car was at fault for not yielding to
the bus. While thankfully there were no injuries, what if there
had been? Who would be held liable?

It’s a question with no clear answer at the moment. These
self-driving cars are essentially robots, which of course are not
people. So if the robot car is at fault and someone is hurt, can a
robot be held liable? If not the robot, would you hold the company
that made the car’s software? It’s not like they could have
planned ahead for that specific situation, since the car navigates
on a series of decision-making algorithms and not pre-loaded
scenarios. What about the person in the car? Should they have
taken over the controls? What if the car malfunctioned?

Nobody as an answer for what to do about these self-driving
cars in case of injury accidents. Ultimately, Google will most
certainly have responsibility, but lots needs to still be developed
in this new area of the law.

Are Uber Drivers Employees?

Uber is an interesting beast. The ride-sharing service allows
people to use their own cars almost like a taxi service. Except
that it is very much not a taxi service, since the cars are not
owned or operated by Uber and are private vehicles. The drivers
simply give rides to people in their car and are compensated
for their time.

So what happens when that goes wrong?

In 2014, a Los Angeles woman accused an Uber driver of
“abducting” her. After picking her up, the driver took her 20
miles out of the way, ignoring her as she told him this was the
wrong route, finally stopping in an empty parking lot and locking
the doors. As the woman shouted for help, the driver eventually
drove her home, ending the two hour ordeal.

A case in the California courts about a year later established
Uber drivers as actual “employees” after a former Uber driver
sued for job-related expenses. This classification is not nationwide,
however. Other states have ruled differently, and some
haven’t had to rule at all yet.

This is going to begin coming into question more and more as
the ride share service becomes more widespread and common.
As convenient as Uber and other similar services are, who is
liable when things go wrong? Do we have to just hope the driver
carries insurance? Should Uber be providing insurance? If the
driver is providing their own insurance, should the insurance
policy treat passengers like any other passengers or correct for
them as “customers”?

These questions are all up in the air right now, as the growing
pains of the industry begin to iron themselves out. Many
lawyers are keeping a close eye on these cases to see how they
play out.

Complicating the matter is the issue of drivers with a
checkered past. How thoroughly is Uber required to check the
backgrounds of its drivers? Since they’re a type of independent
contractor, is Uber liable if they miss something? Even if the
driver’s record is clean, what if they commit a crime while on
the job? As an independent contractor, does the blame lie solely
on the driver?

Drone Flights On Public And Private Property

Unmanned Aerial Vehicles (UAVs) or “drones” have come out
of nowhere and are becoming a huge legal issue.

Of course, there’s the “invasion of privacy” question that
comes with any remote controlled vehicle that carries a camera.
This is a question as old as the invention of binoculars. Yet, the
drone question is deeper than that.

In 2015, a fire broke out on the 15 Freeway near the El Cajon
Pass, north of Fontana, CA. Cars were stopped on the freeway
as multiple vehicles burned right there on the road, including a
boat trailer and a car carrier. As fire crews attempted to put the
fire out, their efforts were hindered by private drones that were
in the area as locals tried to film the fire.

These drones made it almost impossible for the fire crews to
bring helicopters into the area to drop water and fire retardants
on the burning vehicles. Since, at the time, the FAA hadn’t
required registration for drones, nobody knew who the pilots
were.

Should these drone pilots be held liable for keeping firefighters
from doing their jobs? Should they have to pay for the
damage to cars that were burned? What if there were injuries?
What about certification? Should some sort of training and
certification be required before someone can fly a drone? If an
unlicensed drone pilot causes property damage or personal
injury, how does that change the case? If they’re licensed and
operate the drone in an unsafe manner, would this mean they’re
especially negligent?

As the law evolves and changes, more of these questions will
need to be asked. It won’t be easy, and like any other process
of change, there will be bumps in the road. However, it’s worth
noting that we’ve come through changes and questions in the
past to get to where we are now. It’s not too much to imagine
that we’ll figure it out from here as well.

The law is an ever-evolving thing, and is constantly being
updated and reinterpreted. Since the first edition of our book,
there have been some changes to California’s laws that pertain
to personal injury. Other rulings have changed how the courts
view certain kinds of damages.

These are just a few examples of how the law has changed in
the short time since our First Edition.

Leung v. Verdugo Hills Hospital

This was an interesting case that has changed the way shared or
joint-liability is handled.

In 2012, the California Supreme court reversed a lower
court’s decision, thus undoing a 200 year old concept regarding
co-defendants and something called “good faith” settlements.
With this decision, your lawyer has to change how they handle
a case with more than one at-fault party. The change, however,
benefits the victims in a major way.

Aidan Ming-Ho Leung was six days old when he suffered
irreversible brain damage due to a mistake by his pediatrician.
The case was complicated when it was revealed that the hospital
was also at fault for not catching the preventable mistake,
thus making the damage worse. Leung’s parents sued both
the pediatrician and the hospital, seeking to hold both parties
responsible.

The pediatrician agreed to a settlement with the Leung
family of $1 million, the limit of the malpractice insurance
policy. The hospital, on the other hand, did not settle and took
the case to trial.

A jury found the pediatrician 55% at fault and the hospital
40% at fault, placing 5% of the fault on the Leung family. Before
damages were awarded, the hospital appealed the ruling on
the grounds of a common law “release rule.” This release rule
stated that once a plaintiff settles with one co-defendant, the
other defendant is off-the-hook, and cannot be held liable. The
hospital used this rule to claim they could not be held liable for
Aidan’s brain damage, since the family had accepted a settlement
with the pediatrician.

The California Supreme Court decided that the family in
fact did have the right to seek compensation from the hospital,
despite having already settled with the pediatrician.
This created what is now called the “setoff-with-contribution
approach.”

After the Leung decision, if more than one party is responsible
for your injuries, they both have to either answer to a jury
or settle. If Party A decides to settle, Party B doesn’t get to just
walk away scot-free. This eliminates the “waiting game” some
co-defendants can use: waiting to see if the other co-defendant
settles before making their next move.

Sherman v. Hennessy Industries, Inc.

In 2015, the California Supreme Court declined to review this
case, thus upholding a lower court’s decision. What it did was
protect workers from defective products they’re forced to use.

Michael Sherman was a mechanic for Hennessy Industries,
building drum brake pads. One of the machines employed in
the manufacturing process was ejecting asbestos dust while in
operation. Sherman was bringing the dust home on his clothes,
which eventually caused his wife to develop mesothelioma, a
disease she later died from.

Sherman sued his employer, arguing they failed to properly
notify him of the machine’s dangers and did not protect him
fully. The employer argued they could not be held liable for a
product they did not design or manufacture.

A jury initially ruled in favor of Sherman, and Hennessy
quickly appealed. Hennessy argued again that they could not
be held liable since they did not design the product, citing an
earlier judgement. The courts found this to be an exception to
the rule, since Hennessy knew the brake pads contained asbestos,
that asbestos was harmful for you, and that the machine
exposed workers to it.

Since the California Supreme Court would not review the
case, this means that if you are exposed to a hazardous or faulty
product, the party who placed you in that position can be held
liable.

This has far reaching implications, since it removes protections
from a number of situations. Imagine if a shopping mall
uses an escalator they know is defective. Or if a car rental company
rents you a vehicle previously shown to be faulty.

The “we didn’t design it” defense no longer keeps you from
recovering damages from someone who exposed you to danger.

Howell vs. Hamilton Meats Inc.

Many people don’t realize that their medical care is often billed
to their insurance provider at a substantial discount. You might
rack up a medical bill of $70,000, but the hospital bills your
insurance company at a discounted rate of $40,000 or so.

For a long time in California, this discount was ignored and
a plaintiff would be awarded “fair market value” for the medical
services rendered. While the hospital only billed for $40,000,
you’d be awarded the full $70,000 in bills.

In 2011, the California Supreme Court made a landmark
decision that changed all of this, in turn changing the entire
face of Personal Injury law.

A woman named Rebecca Howell was injured in an accident
caused by a truck owned and operated by Hamilton Meats Inc.
When her case had gone to trial, she had received just short of
$190,000 worth of billable medical care.

Howell’s insurance company however, received a discount
from the hospital, and only paid $60,000.

With the law the way it was then, when Howell won the case,
the meat company had to pay the full $190,000 of medical
costs. After the judgement, they appealed the decision and said
they should only have to pay the $60,000 the insurance company
was billed, since that’s the actual amount that was paid.

After a long legal battle, the case ended up in front of the
California Supreme Court, who sided with the meat company.
They were only liable for the $60,000 the insurance company
was billed.

This has effectively punished you for having insurance. You
pay for your insurance to cover the costs of an injury, yet you
are completely unaware that the hospitals are giving insurance
companies such a discount. Nobody tells you this until it
becomes vital information.

Howell vs. Hamilton Meats delivered a massive blow to the
rights of accident victims. The California Supreme Court effectively
endorsed the questionable practice of providing massive
discounts to insurance companies as a way to cover themselves.

The Howell decision is basically insurance for the insurance
companies.

Troy and Alana Pack Patient Safety Act of 2014 (Prop 46)

In the 1970s, the state of California placed a cap on the amount
of money a plaintiff could be awarded in a medical malpractice
suit. This meant that if someone was injured because of a doctor’s
mistake, they could only recoup $250,000 in damages.

Even in the 1970s, people had a misconception that plaintiffs
in personal injury cases were looking for a payday. This, of
course, is not true. The political climate didn’t see it that way,
however.

Fast forward to 2014, and the caps had not moved. While
$250,000 may have been a substantial amount in the 1970s, it
was nowhere near ample in the 2010s. The cost of living, inflation,
changing medical climate, and other factors made that cap
an absurdly inadequate amount. The cost of recovering from a
major malpractice incident was several times that.
But the cap remained.

Prop 46 aimed to raise this cap, to give victims and their
family a much more realistic settlement. While a system with
no cap would make much more sense, the proposition was just
a start. The cap was to be raised to $1 million, giving juries freedom
to award appropriate amounts.

The proposition was defeated based on two things. First,
the opposition argued that the bill wouldn’t have been about
protecting patients, but benefiting trial lawyers. The second
issue hinged on pieces that were tacked onto the law regarding
drug and alcohol testing for doctors and other such measures.
Doctors were furious about this, as they felt it was an overreach
by the government.

As the debate raged, the opposition kept repeating the idea
that the law would only benefit “the greedy trial lawyers.”
Proponents of the bill insisted this was about getting victims
awards that made sense.

Proposition 46 would have made sure you were compensated
for all expenses and damages you incurred from a malpractice
injury. It also would have held doctors who committed
malpractice accountable for their negligence. Doctors would no
longer be able to hide behind the caps and their malpractice
insurance, but would be held financially accountable.

Yet over and over, it kept coming back to this idea of “greedy
trial lawyers”—an idea firmly rooted in the stigma left over
from the Liebeck case. People still, for some reason, felt like
there was a wave of cash-grabbing lawsuits out there—an idea
that is entirely fictional.

Because of the drug testing clause and the public’s misconception
of what these caps meant, Prop 46 is merely a memory.

This brings a chilling problem for the future. Malpractice
cases aren’t going to be worth fighting anymore.

With the damages capped at the 1970s level they are now,
merely mounting and fighting the case costs more than you
could ever be awarded. Too many lawyers will end up passing
on these cases, since they’d end up being a Pyrrhic victory at
best.

With Prop 46 defeated, will victims of malpractice ever get
the justice they deserve? It’s hard to say.

In 1972, Lilly Gray was driving her Ford Pinto when she was
rear-ended by another car. Her Pinto immediately burst into
flames, severely burning her and her 13 year old passenger,
Richard Grimshaw. Gray later died of her injuries and
Grimshaw required multiple surgeries over 10 years to recover.

Cars don’t normally burst into flames just from being rearended,
and further investigation revealed a design flaw in the
Pinto.

As it turns out, even a minor rear-end collision would cause
the oddly placed fuel tank to be pushed forward, and possibly
burst. This also came with the risk of spraying fuel into the passenger
compartment, as well as the risk of sudden ignition.

Ford was absolutely and completely aware of this fact, and
sold the Pinto anyway.

Repairing this design flaw would have cost Ford a total of
$45.39 per car. After crash tests revealed the flaw and engineers
informed them of the cost to rectify the flaw, Ford declined to
implement the changes in order to save money on production.

The ensuing court case, Grimshaw v. Ford Motor Company
became one of the best examples of defective product cases
in history. The idea of a company selling products they know
to be dangerous or deadly is repulsive at best, but it happens.
Corporations unfortunately continue to put their profits over
the safety of the same people who buy and use their products.

While many people would figure the Grimshaw case to be
the shake-up we needed for safe consumer goods, it unfortunately
was not. Actually, it’s been getting worse.

In 2015, the Food and Drug Administration issued recalls
for 32 different medical devices found to employ faulty designs.
Some of these devices were implanted in people’s bodies, where
they failed and caused catastrophic injuries, turning people’s
lives inside-out. This was just in the medical field; consumer
goods as a whole have been seeing more and more recalls for
faulty designs.

Take for example, the Hoverboard craze. These self-balancing
scooters seemed fun at first, until they started bursting
into flame while people were riding them. A design flaw in the
toys’ batteries was causing them to overheat and ignite. What
seemed like a fun ride at first ended up being a horror scene as
people’s Hoverboards were exploding under them.

There’s nothing wrong with holding a manufacturer responsible
for selling you a product they knew to be dangerous.
Reluctance to do so goes back to the fallout from the Liebeck
case, where people are fast to accuse plaintiffs of making a
“cash-grab” when they were legitimately injured.

As we look back on the mounting piles of defective product
claims, a question of accountability arises. If you don’t
hold these manufacturers responsible, who will? People have
become reluctant to litigate because of the fear of being mocked
in public.

Moving forward, it’s important for you, the consumer, to
do two things. First, you must conduct research. Has this happened
to other people who purchased this product in the past,
and are the cases well documented? Second, you must communicate
openly with your lawyer. When you decide to seek legal
representation, listen to your lawyer’s advice. When it comes
to cases like this, most lawyers will be very upfront with you
regarding the value of the case. Lawyers don’t like wasting your
time or theirs, and if they tell you there’s a case there, there’s
a case. If there wasn’t, they’d be very clear that the case isn’t
worth the time to fight it.

Everyone knows the story of Stella Liebeck and her cup of
McDonald’s coffee that was too hot. It’s been repeated over and
over and used as an example of the “frivolous lawsuit.”

People look at Liebeck v. McDonald’s Restaurants and hold it up
as an example that society has become too “sue-happy” because, of
course, she should have known coffee is a hot beverage. Of course
it had to be a cash-grab, and she was looking to squeeze a large
corporation and make that payday we all dream of.

Well, hold on for one second. There’s more to the story.
As it turns out, Ms. Liebeck spilled the coffee on her lap,
which caused third degree burns over most of her legs and
groin. She required a number of painful skin graft surgeries,
and was disabled for a period of time.

The other part that tends to be left out of the anecdotal retellings
of the story is the part where McDonald’s served her coffee
they knew was dangerously hot because they had been told
repeatedly to stop serving coffee at near-boiling temperatures.

Not only that, but Ms. Leibeck was not the first person to be
severely burned by McDonald’s coffee. In fact, there were 700
reports of serious burns related to their coffee prior to hers.
What about that part where Ms.Liebeck “sued for millions of
dollars?” Also not entirely accurate.

Ms. Liebeck initially asked McDonald’s for $20,000 to cover
her medical bills and lost wages. McDonald’s offered her $800.
After retaining a lawyer, Ms. Liebeck offered a settlement of
$90,000, no questions asked, end of story. McDonald’s also
refused that and another settlement of $250,000 was offered
at a settlement conference.

McDonald’s had already settled other scalding claims for
upwards of $500,000.

When the case went to trial, Ms. Liebeck was again seeking
nothing more than compensation for her medical bills. It was
the jury who awarded her $200,000 in actual damages and
added the $2.7 million in punitive damages. This was because
the jury felt McDonald’s had prior warnings and knew exactly
of the dangers and harm their coffee would cause if it were to
spill. It was the jury who, after hearing all the evidence, believed
that this would be ample punishment. A judge later reduced the
punitive damages to $480,000. After appeals, the two parties
settled on $600,000.

Ms. Liebeck just wanted her medical bills paid. It was the
jury that held McDonald’s accountable for their actions by setting
the high actual and punitive damage amount.

The public’s perception of the Liebeck v. McDonald’s
Restaurants case was skewed because most people didn’t have
the whole story. When presented with the full scope of the case,
most people’s opinions change drastically. This was more than
“my coffee is too hot, I think I’ll sue.” Her case centered around
the negligence of serving coffee too hot after being told repeatedly
not to because people were getting hurt. In lawyer speak,
this is called “being on notice.”

In the wake of Liebeck v. McDonald’s Restaurants, a moral
outrage over “frivolous lawsuits” has erupted, causing many
injured parties to be hesitant to sue, despite being seriously
injured. This campaign is spearheaded and financed by billiondollar
insurance companies and corporations who want nothing
other than to keep consumers from having a way to check
their power.

There’s nothing wrong with holding a responsible party
liable when you are injured due to their negligence. Thinking
your lawsuit is “frivolous” just because of something you heard
on TV could force you to deal with a life-altering injury on your
own when you don’t have to.

In the future, the effects of Liebeck v. McDonald’s Restaurants
could continue to skew people’s perception of personal injury
cases. When you’re hurt and you’re seeking compensation for
expenses you incurred because of someone else’s negligence,
and someone who has no knowledge of your case accuses you of
“looking for a fast payday,” you might get discouraged.

It’s important to remember the Liebeck case because it
reminds us that detractors don’t usually know the full story.
Hopefully, in the future we will see more people looking to
understand the entire story, rather than just a soundbite.