Approximately 7 million people worldwide go on cruises every
year. Some go on long-weekend three-day cruises, others take
six-month cruises, while many take cruises of two to four weeks.
While the vast majority of passengers will have a delightful,
memorable, and uneventful cruise, for some the dream cruise
they had been planning for months, if not years, turns into
tragedy when they are seriously injured or killed due to the
carelessness (“negligence”) of the cruise line and its employees.

Any one of the following factors can cause injury or death,
turning a fun cruise into a nightmare:

  • “Slip and fall” or “trip and fall” incidents
  • Hazardous decks, stairways, and walkways
  • Inadequate ship maintenance
  • Water slide, wave pool, and swimming pool accidents
  • Contaminated food and food poisoning, resulting in serious
    injuries
  • Passengers who fall overboard
  • Unsafe doors that close too quickly or too forcefully
  • Drownings
  • Head and traumatic brain injuries
  • Spinal cord injuries
  • Infectious diseases and viruses
  • Sexual or other physical assaults by crew members
  • Explosions and fires
  • Unseaworthy conditions
  • Injuries incurred during on-shore activities and excursions
    arranged or sanctioned by the cruise ship company

THE INJURED PASSENGER’S RIGHTS

The legal rights of a passenger who has suffered an injury on a
cruise ship, or of the heirs of a passenger who has been killed,
depend largely on two things: maritime law and the provisions
of the passenger’s contract/ticket for carriage. Deaths occurring
more than three miles off the United States’ shore come under
the jurisdiction of the Death on the High Seas Act (DOHSA),
discussed separately. Under maritime law, a ship owner owes
passengers a duty to take ordinary reasonable care under the
circumstances.

YOUR TICKET AND CONTRACT WITH THE CRUISE LINE

A passenger’s contract/ticket is carefully drafted by the cruise
line not only to tell you of your rights, but just as importantly—
if not more so—to govern such things as what you can sue the
cruise line for, the location where you must bring suit, how soon
after the incident you must give written notice of your claim to
the cruise line (usually six months), and the length of time you
have to sue the cruise line (usually one year). What law applies
to your ability to bring suit also depends on where the ship was
at the time of the injury. For instance, the type and amount of
damages you may be entitled to may vary greatly if the injury or
death occurred while the ship was docked at Long Beach, was
in Mexican territorial waters, or was on the high seas (more
than three miles off most countries’ shores).

A passenger’s cruise ticket for an ocean voyage constitutes a
maritime contract. Most ticket/contracts require that any lawsuits
against the cruise ship must be filed only in certain places,
usually cities or counties where the cruise line has its offices.
The top places designated by the contract/ticket for filing a
suit for personal injuries or death arising out of a domestic
cruise ship’s negligent conduct are Miami, Los Angeles, New
York, and Seattle. For purely international cruises, such as a
Mediterranean cruise aboard a Greek cruise ship, if you should
be injured or a loved one killed on the cruise, you are probably
going to have to prosecute the claim in Greece, even though the
ticket was purchased in the United States. But if the passenger
set off aboard a cruise line out of the Port of Miami and went on
a Caribbean cruise and returned to the Port of Miami, chances
are that the contract/ticket provides that lawsuits against the
cruise line for injury or death must be brought in Florida.

In determining where you can and must file your lawsuit
against the cruise line, the contract/ticket contains language of
where you must sue the cruise line if you have been injured or
a loved one killed on a cruise. The standard applied is that the
ticket must reasonably communicate the existence of important
terms and the passenger must have the opportunity to become
meaningfully informed of those terms. The court will also look
to the location of any restrictive provisions and simplicity of
the language used to limit a passenger’s rights.
The question boils down to whether, taken together, the
various notices and provisions of the cruise contract/ticket
are legally sufficient to give effect to the various liability and
claim procedures it contains. For example, a passenger who
claims that requiring the case to be filed thousands of miles
away is unreasonable has a heavy burden of demonstrating
why enforcement of the site specified by the contract/ticket is
unreasonable. Whether the terms and conditions of the passage
contract were reasonably communicated is a question of
law for the court to determine.

TYPES OF DAMAGES RECOVERABLE

A cruise ship passenger who has been injured because of a
cruise ship’s employee’s negligence is entitled to recover monetary
damages for past, present, and future medical expenses,
lost wages—both past and present—loss of earning power, and,
if within three miles of the U.S. coastline, her pain and suffering
and loss of enjoyment of life. Outside the limit of three
nautical miles, the passenger must allege a physical injury to
recover damages for purely emotional distress, mental anguish,
and psychological injuries. In one case involving a cruise ship,
approximately 210 passengers brought suit against the cruise
line and its captain for extreme emotional distress. The gist of
the cases was that their emotional injuries occurred because
the captain sailed into bad weather that the ship’s officer was
aware of but did not avoid. The cruise line proved that some
140 of the passengers did not have any objective physical injuries
and were therefore not entitled to recover for their purely
emotional distress.

WHAT TO DO IF YOU HAVE BEEN INJURED

If you are injured or a loved one killed on a cruise ship, you
should report your injury or loved one’s death to the cruise
ship employees as soon as possible. If there is a medical
doctor or other health care professional aboard the ship, you
should contact him for immediate treatment in the case of an
injury. It may be necessary for you to be taken off the ship by
a helicopter, or the ship may have to change its destination
and head to the nearest port of call so that you can get prompt
medical treatment.

If you are able to, take pictures of the area where you were
injured. If you’re not able to do it yourself, then you should
instruct your spouse or traveling companion to take pictures
for you. Don’t forget to take pictures of your injuries. If you
didn’t bring a camera and your mobile phone doesn’t take pictures,
a disposable camera can be purchased in the ship’s gift
shop for around $10. If you are unable to do so, your spouse
or traveling companion should get the names and addresses of
all witnesses to the accident, and if possible, a brief statement
from them relating what they saw. The cruise ship employees
have a duty to assist you in collecting this information when
you are unable to do so yourself.

If you have been injured or a loved one killed while aboard
a cruise ship, you should contact a personal injury lawyer with
experience in maritime law and cruise ship injuries and deaths
as soon as possible so your claim is not barred by the “statute
of limitations.” The statute of limitations tells you how long you
have to file a lawsuit in federal court or you will lose the right
to sue forever. Maritime law and the contract/ticket with the
cruise ship determine the amount of time you have to sue the
cruise line for injuries or death. Although the normal time a
person has to file under maritime law is three years, by signing
the contract/ticket with the cruise line, that time is generally
shortened to one year. And before you can bring a suit in court,
the contract/ticket usually requires that you must first file a
claim with the cruise line within six months of the incident.

The contract/ticket may also require you to submit a “Bill of
Particulars” with your claim to the cruise ship within six months
of the injury or death. Typically, in the Bill of Particulars you
must send notice of your injuries or loved one’s death and tell
them why you feel the cruise line is liable to you. If a satisfactory
settlement cannot be reached with the cruise line, you must file
a lawsuit within one year of the incident. The ticket inevitably
will provide that you must present your claim to the cruise line
within six months, and if you don’t, you lose your right to sue
the cruise line forever. Unless your claim is very small, you
should not attempt to negotiate with the cruise line itself. If you
do send notice to the cruise line of your claim, you should send
it and your Bill of Particulars via certified mail and request a
return receipt to prove that you sent notice of your claim in
on time. The cruise line is usually identified at the top of your
ticket. Do not make the mistake of sending notice to the travel
agent or ticket agent. The lawsuit is against the cruise line, and
timely (i.e., usually six months) written notice of the accident
and injury must be sent to it.

If your injuries are serious, or a passenger died on the cruise,
you should contact an attorney promptly after you return home.
An attorney experienced in cruise ship liability will know how,
what, and where to file the notice and Bill of Particulars. Don’t
forget to gather your contract/ticket and all other written
information, pamphlets, brochures, receipts, documents, and
pictures so you will have them ready when you meet with your
lawyer. If you are injured and unable to go to the lawyer’s office,
the lawyer will usually come to your home or the hospital. If
your injuries are serious or a death is involved but you think
you can handle the case yourself, think again. One respected
study of injured and deceased victims demonstrated that, even
after paying the lawyer’s fees, injured persons who had lawyers
handle their case for them ended up with more money in their
pockets than people who handled their cases by themselves.

In cases involving injuries or deaths from dangerous conditions
existing aboard the ship, a cruise line is liable for injuries
to its passengers only where it has actual or implied (“constructive”)
notice of a dangerous condition. Without knowledge of
any unreasonable risk or danger, the cruise line has no duty
to warn of or remove the dangerous condition. In maritime
law, constructive notice of an onboard dangerous condition is
shown when it has existed long enough to give rise to an inference
that crew members must have noticed it.

INJURIES OR DEATHS RESULTING FROM AN EXCURSION OR SIDE TRIP

Suppose you are on a cruise that stops at an island and offers
passengers various excursions, from souvenir shopping to
paragliding or Jet Skiing. One passenger goes out on the Jet
Ski and is injured by another person on a Jet Ski that deliberately
ran into her. Can the injured passenger sue the cruise
line? Generally not.

The contract/ticket usually states that the cruise line is not
liable for injury caused by any act not shown to be caused by
its negligence or the negligence of its employees. The contract/
ticket usually provides that shore excursions and other tours
may be owned and/or operated by independent contractors
and the cruise line makes no representation and assumes no
liability for the wrongful conduct of the provider/operator of
the shore excursion. The contract/ticket may state that if the
passenger takes part in organized activities, whether on the
ship or as part of a shore excursion, she assumes the risk of
injury and the cruise ship is not liable or responsible for it.

DEATH ON THE HIGH SEAS

When a passenger has died, for example, due the negligence
of an employee of a cruise ship, and the incident occurs within
three nautical miles of the United States, the death is said
to have occurred within the state’s territorial waters and the
wrongful death laws of the state apply. However, if the incident
occurs more than three nautical miles off the U.S. coast,
then the action is governed by the Death on the High Seas Act
(DOHSA). In most such cases, DOHSA preempts general maritime
law and limits the types of damages the heirs can recover.

DOHSA was originally enacted in 1920 to make it easier for
widows of seamen to recover damages for future earnings when
their husbands were killed in international waters. The cruise
industry has since used the law to limit damages when a passenger
aboard a cruise ship is killed on the high seas. In 2006,
the Death on the High Seas Act was revised and reenacted
(United States Code Title 46, sections 30301 et seq.). Under
the new provisions, the Death on the High Seas Act states:

When the death of an individual is caused by wrongful act,
neglect, or default occurring on the high seas beyond three
nautical miles from the shore of the United States, the personal
representative of the decedent may bring a civil action in admiralty
against the person or vessel responsible. The action shall
be for the exclusive benefit of the decedent’s spouse, parent,
child, or dependent relative.

DAMAGES YOU CAN SUE FOR UNDER DOHSA

Damages under DOHSA are primarily determined based upon
the actual or projected value of the financial benefit that would
have been received from the decedent, so-called “pecuniary
damages.” A spouse can recover for the actual value of the
financial contribution the deceased spouse would have made
to the family had he lived, reduced by the amount determined
to have provided for the care and maintenance of the decedent
personally. DOHSA does not provide for a loss of society or consortium,
but the surviving spouse and dependents can recover
for the monetary value of the household services the decedent
would have provided. This portion of recovery is based on the
number of hours the beneficiaries would have expected to
receive in services from the decedent and are calculated based
upon an hourly rate for those services projected over the decedent’s
life expectancy.

Under the 2000 Death on the High Seas Amendment, the
victim’s family can recover for the non-pecuniary loss of care,
comfort, and companionship resulting from the death of their
loved one in addition to such pecuniary damages as lost past
and future wages. But recovery is still not permitted either by
the families or the passenger’s estate for the pre-impact pain
and suffering experienced by the passenger in the cruise line
disaster.

Under the 2000 amendment, dependent children can
recover for the value of parental care, nurturing, training, and
guidance they would have received from the deceased parent,
as well as the loss of an expected inheritance. Pecuniary damages
for the death of a loved one include pre-death medical
expenses, as well as funeral and burial costs. However, DOHSA
does not authorize recovery for non-pecuniary losses, such as
pre-death pain and suffering (in most cases), loss of comfort and
society, grief, sorrow, and other “intangible,” or non-pecuniary,
damages. The only damages available to other eligible persons
(parents and dependent relatives) are the lost monetary sums
the deceased person would have contributed to them had he
survived. Under DOHSA, a lost monetary sums claim related
to an older, retired person who is not employed, or a child who
is not working, would likely result in only minimal damages,
since they were not making any or much money or making a
significant financial contribution to the family.

SURVIVAL ACTIONS NOT ALLOWED

DOHSA does not allow for a “survival” action. A survival action
covers the period from the time the person is injured until she
dies. For example, if a person is severely injured and suffers
intense pain for two weeks before succumbing to her injuries,
the survivors are not allowed to bring a survival action to get
compensated for the physical and emotional pain and suffering
their loved one endured before dying. (They would, however,
be able to recover the medical expenses incurred during this
time as they are pecuniary damages.) The exception to the rule
that damages for pre-death pain and suffering are not recoverable
is that, if an injured person files a DOHSA lawsuit and dies
before it is resolved, the personal representative of the deceased
person can be substituted as the plaintiff and the lawsuit is not
otherwise affected.

RESTRICTIONS REGARDING THE FILING OF A DOHSA LAWSUIT

Actions based on DOHSA must be filed within three years,
although cruise lines may shorten that time to as little as one year
in their contract/ticket. DOHSA lawsuits can only be brought by a
deceased person’s personal representative, for the exclusive benefit
of the decedent’s spouse, parent(s), child(ren), and dependent
relative(s). Additionally, before a DOHSA lawsuit may be filed,
the ticket/contract with the cruise line often requires that the
cruise line be given notice within six months after the injury or
death of the passenger, along with a “Bill of Particulars”—a statement
of what injuries the passenger suffered and what the alleged
cause(s) of such injury were or what the bases are for holding the
cruise line liable for the death of the passenger.

Where the DOHSA case must be filed does not depend on
where the person lives. Rather, it depends on where the negligent
act that ultimately caused the death occurred. So if the
person was injured on the high seas but taken to a hospital in
California where he died of the injuries, the case is governed by
DOHSA rather than California state law. In the case of cruise
ships, usually the place(s) where the cruise line can be sued is
specified on the contract/ticket.

Suppose a personal representative files a DOHSA lawsuit on
behalf of a widow and her three children. The case is successful
and a single monetary amount is awarded. How is the award
divided among the four plaintiffs? It is up to the court (i.e., the
judge) to apportion the recovery among those individuals in
proportion to the loss each has sustained.

Aircraft accidents—whether involving a four-seat private small
plane or a commercial jumbo jet—can present difficult questions
of fact and law regarding whether the owner and/or operator
of the plane is legally responsible (“liable”) for injuries or
death arising from his carelessness or the carelessness of his
employees. And even if the owner or operator of the aircraft is
liable for the injuries, there may be laws that limit the amount
of money the injured passenger or the survivors of a passenger
who was killed can recover.

PRIVATE AIRPLANES

Hundreds of thousands of Americans own small aircraft that
they use for pleasure flying, attending fly-ins with airplane
clubs, and taking vacations, among other things. Suppose your
friend owns a small plane and asks you if you’d like to go for a
ride. You enthusiastically agree. However, while in mid-flight,
there is a problem with the engine and it stops the propeller
from turning, and you crash land. Can you sue your friend
for injuries you suffered in the crash? Or in the case of fatal
injuries, can your loved ones sue your friend’s estate for your
“wrongful death?”

A privately-owned noncommercial plane owner does not
regularly charge a fee for transporting persons—whether the
flight is just for a couple of hours of sightseeing or your friend is
taking you from one place to another—and so she is considered
a “private carrier.” As such, your friend has the legal obligation
(“owes you a duty”) to use ordinary and due care in making sure
the plane is airworthy and that she is qualified and fit to be at
the controls and not make any careless errors that would result
in the passenger’s harm or death. In legalese, the “standard of
care” applicable to private pilots flying pleasure craft is one of
“ordinary care” for the safe transportation of their passengers.
Ordinary care is that degree of care that an ordinarily prudent
person would use under like circumstances when charged with
a like duty. Ordinary negligence is a lack of due care; and due
care means commensurate care, under the circumstances,
tested by the standard of reasonable prudence and foresight.

The pilot of the small plane must perform a careful and
thorough pre-flight inspection of the plane to ensure that it is
indeed safe to fly, i.e., airworthy. She must also be familiar with
the weather conditions on the route to your destination. If the
pilot is qualified to fly only under visual flight rules (VFR), she
must avoid flying into a storm, fog, or other inclement weather
that requires an instrument flight rating and the appropriate
instruments, indicators, and gauges in the plane to allow her to
fly under instrument flight rules (IFR).

Because small planes are not required to have cockpit recording
devices or flight data recorders, it may be more difficult to
pinpoint the cause of a small plane’s crash than the crash of
a commercial airliner. However, the National Transportation
and Safety Board (NTSB) has jurisdiction over the investigation
of accidents involving planes of all sizes, and can often
determine the cause of the accident.

COMMERCIAL FLIGHTS

Commercial aviation involves transport “for compensation or
hire.” This includes airlines, commuter airplanes, and charter
aircraft, but does not include corporate aircraft or privately
owned airplanes. Commercial flying is considered to be one of
the safest—if not indeed the safest—means of transportation
going. You have a much greater chance of being injured in an
automobile accident on your way to the airport than you do of
being involved in a commercial aircraft accident. Unfortunately,
when there is a commercial aircraft accident, it tends to be a
major disaster resulting in tens, even hundreds of injuries and
deaths and significant property damage.

When a commercial aircraft is involved in an accident that
results in loss of life or serious personal injuries, there may be
a number of possible defendants who may be legally responsible
(“liable”) for the injuries or death. First there is the airline
company itself. Because commercial airliners offer to the general
public to carry goods or persons and are bound to accept
anyone who offers to pay the “price of carriage” depending on
seat availability, they are considered by law to be “common
carriers.”

As a common carrier, an air carrier and its employees are
required to use the “utmost due care and diligence” for the safe
passage of, and to prevent injuries to, its passengers, and it can
be held financially responsible for injuries resulting from even
its slightest carelessness (“negligence”). Commercial airlines
are bound to do all that, which with human care, vigilance, and
foresight, they can reasonably do under the circumstances to
protect their passengers from harm. “Passengers” include not
only persons who are on board the aircraft when it crashes,
but also passengers who are injured or killed while getting on
(“embarking”) or off (“disembarking”) the plane. However, as
to other planes and persons who are not passengers, the airliner
owes them only the ordinary standard of care, that is, the duty
not to expose them to an unnecessary risk of harm (ordinary
negligence).

A common carrier is one who holds itself out to the public
as engaged in the public business of transporting persons for
compensation from place to place, offering its services to those
members of the public generally who choose to employ it and
pay its charges. The distinctive characteristic of a common carrier
is that it undertakes to hold itself out to the public, either
expressly or as a course of conduct, as a business to carry for
hire on a uniform tariff all persons wanting transportation, so
long as it has the room to accommodate them.

“Holding oneself out to the public” means that the carrier
in some way makes it known to its prospective patrons the fact
that its services are available. This may be done in various ways,
as by advertising, solicitation, or the establishment in a community
of a known place of business where requests for service
will be received. However the result may be accomplished, the
essential thing is that there must be a public offering of the
service, or, in other words, a communication of the fact that
service is available to those who may wish to use it.

For a transporter of passengers such as an airplane to be a
common carrier, it is not necessary that it have a regular schedule
of flights, a fixed route, or a relatively unlimited carrying
capacity. For example, a carrier that provides air transportation
may limit its operations solely to charter flights and still be
legally considered to be a common carrier. Important factors
used to determine whether an operation is a common carrier
include an established place of business, engaging in the operation
as a regular business and not merely as a casual or occasional
undertaking, and a regular schedule of charges.

To be a common carrier, it is not necessary for the carrier to
leave one place and transport its passengers to another place.
A sightseeing tour that embarks from and returns to the same
point can be considered a common carrier. Hence, an airplane
pilot who offered sightseeing flights to the ocean and back was
held to be a common carrier, even though the flights took off
and landed at the same airport. Similarly, a company that provides
sightseeing helicopter rides for a fee is a common carrier,
even though it takes off and lands at the same helipad.
Commercial hot air balloons that advertise or otherwise promote
their business of sightseeing trips from Point A to Point B
are also considered common carriers.

Although common carriers must use the utmost care and
diligence for their passengers’ safe carriage, must provide
everything necessary for that purpose, and must exercise to
that end a reasonable degree of skill, a common carrier is not
an insurer of its passengers’ safety, and does not give them an
absolute guarantee that nothing will go wrong and they will not
be injured or killed in any way whatsoever.

The airline, as a common carrier, is also legally required
to provide vehicles (in this case, aircraft) that are safe and fit
for the purpose to which they are put, and is not excused for
default in this respect by any degree of care. Also, the passenger’s
motive for seeking transportation is not relevant in
determining the carrier’s liability. The common carrier owes
the same high duty of utmost care whether the passenger rides
for pleasure or business. A passenger’s purpose in purchasing
transportation, whether it be to get from one place to another
or to travel simply for pleasure or sightseeing, does not determine
whether the provider of the transportation is a carrier for
reward. Undisclosed purposes on the passengers’ part do not
affect the duty of the common carrier to exercise the highest
degree of care for the safety of the passenger.

The major causes of a commercial aircraft accident are:

  • Pilot error
  • Mechanical failure due to faulty equipment
  • Bad weather
  • Failing to properly de-ice the plane before take-off
  • Air traffic controller error
  • Improper maintenance or repair of the aircraft or its
    component parts
  • Violating Federal Aviation Administration (FAA)
    regulations
  • Structural or design problems with the aircraft
  • Sabotage (bombs, hijacking, shoot-downs)

Other causes include improper loading of the aircraft and
fuel contamination.

The airline company may be held responsible for the errors
of its pilots in operating the aircraft, its maintenance crew for
failing to maintain the aircraft properly or failing to detect
a crack or other structural problem with the aircraft, or its
employees for improperly loading or over-loading the aircraft.
The manufacturer of the aircraft or supplier of a component
part may be held liable under the doctrine of “strict product
liability” (discussed in Chapter 21, “Defective Products”) for
any and all defects in the manufacture or design of the plane
or its defective parts that caused or contributed to the accident.
Similarly, the United States government may be liable
where the accident is due to the negligence of one or more of its
employees, usually the air traffic controllers. In a collision with
another aircraft, the other aircraft may be sued if its pilots were
negligent in failing to avoid the crash.

An all-too-frequent yet completely preventable cause of
injuries and deaths in aircraft accidents involve “runway incursions.”
The FAA defines a runway incursion as “any occurrence
at an airport involving an aircraft, vehicle, person, or object
on the ground that creates a collision hazard or results in loss
of separation with an aircraft taking off, intending to take off,
landing, or intending to land.” Runway incursions are frequently
the result of the carelessness (“negligence”) of air traffic
controllers in managing the flow of air traffic on the ground.
Research has shown that the first three minutes of a flight
and the last eight are when about 80 percent of airplane accidents
take place. This is often referred to as the rule of “Plus
Three/Minus Eight.”

A professor in England analyzed the seating charts of more
than a hundred plane crashes and interviewed 1,900 survivors
and 155 cabin-crew members. He found that the people most
likely to survive a plane crash are those sitting right next to the
exit row or one row away. He discovered that survivors usually
move an average of five rows before they can get off a burning
aircraft. The professor’s study concluded that beyond a fiverow
cutoff from the exit, your chances of surviving an aircraft
fire are greatly reduced.

The National Transportation Safety Board (NTSB) is the
governmental agency vested by Congress with the power to
investigate all civilian aircraft accidents, whether it be a major
airline disaster involving hundreds of deaths or a small, singleengine
plane that goes down. Since its creation in 1967, the
NTSB has investigated over 115,000 civilian aircraft accidents.
After it has made a thorough investigation of the accident, the
NTSB releases its report identifying the cause(s) of the crash—
if a cause can be determined—and issues safety recommendations
designed to prevent future accidents from the same cause.

In conducting its investigation, the NTSB gathers data from
the plane’s cockpit voice recorder and flight data recorder if
the aircraft was equipped with them. In major air disasters,
the NTSB attempts to piece together the remaining parts of
the plane in a hangar or other facility to try to reconstruct
the plane and find the cause of the accident. The Federal
Aviation Administration (FAA) usually also takes part in the
investigation to determine what accident prevention steps it
should implement to prevent another occurrence of the same
cause. The FAA provides the NTSB with technical advice about
the aircraft and flight conditions as well.

Commuter planes and regional jets are generally mid-sized
planes that connect smaller cities with large ones having major
airports. On February 12, 2009, during Continental Connection
Flight 3407, a flight operated by Colgan Air under contract to
Continental, a commuter turboprop crashed into a home outside
Buffalo, New York, killing 50 people—45 passengers, four
crew members, and one person on the ground in the house. The
plane involved was a Bombardier Dash 8 Q400, a 74-seat twinengine,
medium-range turboprop airliner. The plane was less
than one year old and had flown for only about 1,500 hours.

Early speculation was that a buildup of ice on the wings was
the most probable cause of the tragedy. However, approximately
a month and a half after the disaster, the NTSB investigators
stated that ice was not the likely cause of the crash and
that it was looking at the actions of the pilot immediately before
the crash. It was reported that the Flight Data Recorder indicated
that the pilot’s control column—basically, the device used
to steer the plane—moved sharply backward, pitching the nose
of the turboprop upward, causing the aircraft to stall. It is hard
to recover from a stall like this, and the crew had only 1,600 to
1,800 feet to do so before the plane hit the ground. This was the
deadliest American disaster in more than five years.

A fairly recent crash involving a commuter aircraft happened
in the early morning hours of August 27, 2006. During Comair
Flight 191, marketed as Delta Connection Flight 5191, a 50-seat
Bombardier Canadair Regional Jet CRJ-100ER bound for
Atlanta crashed while trying to take off from Blue Grass Airport
in Fayette County, Kentucky, four miles west of Lexington.
Forty-nine of the 50 occupants of the plane perished in the
crash, with only the first officer (the copilot) surviving the crash.

In the Comair disaster, Flight 5191 was cleared for take-off on
Runway 22. However, for some reason, the aircraft attempted to
take off on Runway 26, a much shorter runway. The aircraft ran
off the end of the runway, crashed through the airport perimeter
fence, and came to rest in trees on an adjacent horse farm.
The aircraft was destroyed by impact forces and a post-crash
fire. The NTSB determined that the probable cause of the disaster
was the flight crew’s failure to use available cues and aids to
identify the aircraft’s location on the airport surface during taxi,
as well as their failure to cross-check and verify that the aircraft
was on the correct runway before take-off. Contributing factors
were the flight crew’s non-pertinent conversations during taxi,
which resulted in a loss of positional awareness and the FAA’s
failure to require that all runway crossings be authorized only
by specific air traffic control clearances.

In 1993, a commercial jet at Blue Grass Airport was cleared
for take-off on Runway 22 but mistakenly went to the shorter
Runway 26 instead. Fortunately, tower personnel noticed the
mistake and cancelled the aircraft’s take-off clearance just as
the crew realized their error. The aircraft subsequently made
a safe departure from Runway 22. On September 1, 2006, the
FAA issued a Safety Alert for Operators (SAFO), titled “Flight
Crew Techniques and Procedures that Enhance Pre-takeoff
and Takeoff Safety.” This alert highlights existing FAA aircraft
ground operation guidance and reminds flight crews that maximum
attention should be placed upon maintaining “situational
awareness” during taxi operations.

DOMESTIC FLIGHTS

A domestic flight is one occurring entirely within the United
States, with no stopovers in another country, whether for refueling
or to let off or take on passengers. Unlike crashes involving
international flights, passengers on domestic flights do not
face any limitations on the amount of recovery the passengers
can receive for their injuries or the survivors can receive for the
death of their loved ones. Additionally, an injured passenger
on a domestic flight can recover damages for purely emotional
and mental injuries without having to prove any accompanying
bodily injury, as she must do to recover such damages on an
international flight.

When a passenger on a domestic commercial flight is killed
in a crash, it may be possible for her next of kin to bring a “survival”
action to recover monetary damages for the pain, suffering,
and mental anguish the passenger experienced from the
time she realized that something was seriously wrong with the
flight until the time of her death.

When a commercial aircraft crashes, causing a loss of life or
serious injuries, the air carrier and its insurance company will
usually contact the injured passenger or next of kin right away
and provide immediate medical or grief support. The airliner
will often pay for the hotel costs of a deceased passenger’s next
of kin and help make and pay for funeral arrangements. The air
carrier’s representative or its insurance company’s agent will
frequently tell the survivors that there is no need for them to
obtain a lawyer to represent them, as they will do right by them.

The insurance company may offer to pay what appears to
the family to be a fair settlement. Do not accept any settlement
offer from an insurance company without the advice of
a skilled and experienced aviation accident lawyer. A grieving
family is susceptible to accepting a much lower offer than an
experienced aviation lawyer can get for them. Although the
airliner or its insurance company will try to dissuade you from
getting a lawyer saying that a lawyer’s fee will come out of your
share, the truth is that studies consistently show that victims of
accidents end up with more money in their pockets even after
paying the lawyer his fee.

An experienced personal injury law firm can also help with
seeing to it that you obtain appropriate and thorough medical
care for your physical, emotional, and psychological injuries
suffered as a result of the accident. They can also do everything
possible to ensure that you obtain full compensation for your
medical expenses, pain and suffering, mental anguish, property
damage, lost wages, psychological injuries, loss of society, affection,
and comfort, and all of your other injuries and damages.

INTERNATIONAL FLIGHTS

If you are injured or a loved one killed in an international flight,
your rights are much more complicated than if you or your
loved one were flying on a domestic flight. Up until 1997, the
maximum recovery for damages due to injuries to or death of
a passenger on an international flight was $75,000. This limit
came from a series of treaties and agreements between airline
companies and was known as the “Warsaw System.”

In 1929, a treaty was formed in Warsaw, Poland that was
intended to protect the new air industry from having to pay
excessive damages in the event of an accident. Under its terms,
the maximum amount an injured passenger or the family of a
deceased passenger could recover was 125,000 francs (about
$8,300 in U.S. currency at the time), unless the injury or death
was caused by the “willful misconduct” of the airline or its
employees, something that was extremely difficult to prove.
According to the terms of the Warsaw Convention, an air carrier
could escape liability by proving that it took “all necessary
measures to avoid the damages or it was impossible for him or
them to take such measures.”

In return for the limitation on the amount of money the air
carrier would have to pay to compensate injured passengers or
families of deceased passengers, the Warsaw Convention created
a basis of liability (a “cause of action”) and established a
presumption of air carrier liability for passenger death or bodily
injury resulting from an accident occurring while the passenger
was on board the aircraft or was in the process of embarking or
disembarking the aircraft.

In 1955, the Hague Protocol increased the limit of liability to
approximately $20,000. Then in 1966, in what is known as The
Montreal Agreement, international air carriers agreed to enter
into a “special contract” with passengers, giving them higher
limitations on liability on international flights originating, terminating,
or having a connection point in the United States.
As a result of the Montreal Agreement, the damage amount on
such international flights was raised to $75,000. The air carriers
also agreed not to invoke the defense of having taken “all
necessary measures,” and they agreed as well that the $75,000
limitation would not apply if the airline or an employee engaged
in willful misconduct that injured or resulted in the death of a
passenger.

The Warsaw System led to some unfair results. Suppose
two women were sitting side-by-side in an airliner. The plane
was traveling from Los Angeles to London with a stopover in
Bangor, Maine. One of the women planned on getting off the
plane in Bangor; that was the end of her trip. The other woman
intended to fly all the way to London. Now suppose that due to
mechanical problems, the plane crashes while flying over the
United States, killing all on board. For the woman who planned
to end her trip at Bangor, Maine, her survivors could bring a
wrongful death case against the airline with no limits on the
amount of money her survivors could recover. However, for the
passenger who intended to continue on the flight to London,
the most her survivors could recover under the Warsaw System
was $75,000.

In 1996, some 30 years after the Montreal Agreement, at
the urging of the United States, many international air carriers
considered whether their liability limits were too low.
Finding that to be the case, a number of international air
carriers, through the International Air Transport Association
(IATA) and in cooperation with the United States Department
of Transportation, signed a series of agreements designed to
change the limits of liability for injured or killed passengers.
Over 120 airlines signed the agreement, which removed the
$75,000 limit of liability and allows passengers to recover
full compensatory damages for physical injury or death in an
“accident,” according to the laws of the passenger’s “domicile,”
which is usually the permanent place of his residence. The IATA
Intercarrier Agreement provides that the international air carrier
must pay up to 100,000 Special Drawing Rights (SDRs)
to each injured passenger or the survivors of a deceased passenger
without raising any defenses. (Special Drawing Rights
are a mix of currency values established by the International
Monetary Fund, and on June 1, 2009, the exchange rate was 1
SDR = 1.548 U.S. dollars.) This is a form of strict or absolute
liability, in that the victims need not prove the air carrier was
careless or negligent in any way to recover up to 100,000 SDRs.
(approximately $154,800.00 U.S. currency). The international
air carriers voluntarily waived the Warsaw System limits of
liability for passenger injury and death, and allowed victims to
make a claim for damages equal to what they could make if it
had been a domestic flight. However, the Montreal Agreement
continued the prohibition against recovering damages for emotional
injuries and mental distress and anguish without some
type of physical injury. It also continued the rule barring the
recovery of punitive damages from the air carrier.

Then, in 1999, came The Montreal Convention for the
Unification of Certain Rules for International Carriage by Air.
The Montreal Convention is the new uniform and exclusive
recovery method for applicable recoveries and purports to
replace the entire patchwork Warsaw System. The Montreal
Convention applies to all “international carriage” of persons,
baggage, or cargo performed by aircraft for reward. It applies
equally to gratuitous carriage by aircraft performed by an air
transport undertaking.

Paragraph 1 of Article 17 of the Montreal Convention states
that “[t]he carrier is liable for damages sustained in the case
of death or bodily injury of a passenger upon condition only
that the accident which caused the death or injury took place
on board the aircraft or in the course of any of the operations of
embarking or disembarking.”

The Montreal Convention of 1999 sets up a two-tiered system
of liability. The first tier requires the air carrier to pay up to
100,000 Special Drawing Rights (SDRs) regardless of whether
or not the air carrier was negligent or otherwise at fault in any
way. All the injured passenger or survivors of a deceased passenger
need prove is that the passenger was in fact injured or
killed, and that such injury or death was caused by an “accident.”
This is a form of absolute or strict liability, except that
the air carrier can raise the defense that the passenger was also
at fault (“contributory” or “comparative” fault) for his injuries
or death. The second tier (i.e., claims above 100,000 SDRs)
allows for unlimited recovery, up to the amount the victim can
prove he suffered as a result of the injury or death. However,
the air carrier is not liable if it can prove that the injury or death
was not due to the negligence or other wrongful act or omission
of the air carrier or its employees, or that the injury or death
was solely due to the negligence or other wrongful acts or omissions
of a third party.

The Montreal Convention went into force on November 4,
2003, the 60th day following the date of deposit of the instrument
of ratification, acceptance, approval, or accession by
the 30th country, the United States on September 5, 2003.
As of August 2009, there were 92 signatories to the Montreal
Convention, including most European countries, the European
Union, Japan, Canada, Australia, China, Korea, Mexico, and
the United States. The Montreal Convention has been ratified
by those countries that cumulatively make up the largest share
of international air transport. Under the Montreal Convention,
the air carrier may agree to higher limits of liability, or even no
limits on liability; however, it may not undercut the limits provided
by the Montreal Convention. Additionally, the air carrier
may waive defenses under the Montreal Convention.

Two conditions must exist in order to hold an airline liable
for injuries or deaths arising in an international flight. First,
there must be an “accident,” which the United States Supreme
Court has defined as a “happening or event”—including negative
conduct, such as an omission or failure to do something,
such as the failure of airline personnel to respond to a medical
request of a passenger, resulting in the passenger’s injury or
death—that is external to the passenger, unexpected from the
passenger’s point of view, and not associated with the normal
operation of the airplane. Second, there must be an actual
physical or bodily injury. Mental anguish or emotional distress
cannot be the sole basis for a claim. The Montreal Convention
also does not allow the recovery of “punitive, exemplary or
any non-compensatory damages.” As mentioned above, the
Montreal Convention also gives the air carrier the right to
raise the passenger’s own wrongful conduct (“contributory” or
“comparative” negligence) as a defense to reduce or eliminate
its liability.

Victims of air crash disasters are usually entitled to receive
the full economic (“pecuniary”) damages suffered. Pecuniary
damages are those items of damage upon which a value can be
reasonably placed, such as hospital and medical expenses, lost
past and future wages, lost earning power, etc. Non-economic
damages (“non-pecuniary”) include such things as pain and
suffering in the case of an injured passenger, and the loss of
care, comfort, and society in the case of a passenger who is
killed. Punitive and similar type damages are not recoverable.
The right to all claim types is extinguished if not brought within
two years from the arrival or date of scheduled arrival. The time
limit is an absolute “condition precedent” to bringing a lawsuit
and is not subject to extension.

The Montreal Convention of 1999 applies only if the trip
involves a point of origin and point of ultimate destination
in countries that are parties to the Convention. For instance,
suppose the country Xanadu is not yet a party to the Montreal
Convention. An Air Xanadu flight ticketed from Xanadu to San
Francisco International Airport with a return to Xanadu is not
governed by the Montreal Convention, since Xanadu is not a
party to the Convention. However, a passenger on an Air Xanadu
flight ticketed from San Francisco to Xanadu with a return to
San Francisco would be governed by the Montreal Convention
of 1999, because the point of origin and point of ultimate destination
is in the United States (a contracting State), with an
agreed stopping place in Xanadu (a non-contracting State).

The Montreal Convention and Warsaw System apply only
to international air carriers and do not control damage claims
by victims against other defendants. For instance, if the crash
is due to a faulty design or manufacturer of a component in
the airplane, the victim or his survivors can sue the manufacturer
of the airplane and/or the manufacturer and supplier of
the component part for all damages they can prove, without
limitation. Airports, private security companies, and other
service providers can be sued without having to worry about
the Montreal Convention or Warsaw System’s limitations on
damage. Indeed, even the United States can be sued without
limitation for, e.g., the negligence of its air traffic controllers.

FATAL CRASHES AT SEA

If a passenger dies in an aircraft crash on or above the “high
seas,” the Death on the High Seas Act (DOHSA) applies in
United States courts. Under admiralty law, the survivor’s
damage was previously restricted to pecuniary loss only, that
is, the financial loss the family suffers as the result of the death,
reduced by the amount of expenses that would be incurred by
the decedent. However, under the 2000 Death on the High Seas
Amendment, the victim’s family can now recover for the nonpecuniary
loss of care, comfort, and companionship resulting
from the death of their loved one in addition to such pecuniary
damages as lost past and future wages. But recovery is still not
permitted either by the families or the passenger’s estate for
the pre-impact pain and suffering suffered by the passenger
in the airline disaster. The “high seas” are defined as the seas
and oceans more than 12 miles from the shore of the United
States and its islands. In most other countries, the high seas
are defined as those seas more than three nautical miles off the
country’s shore.

If the aircraft crashes within 12 nautical miles of the shores
of the United States and results in death, then the cases will be
determined using the laws in effect in the various states and
under federal law. Crashes on or above the high seas outside
12 nautical miles from the shores of the United States will fall
within the Death on the High Seas Act.

PARTICIPATION IN RECREATIONAL SPORTS

Suppose you’re playing in a friendly game of pickup basketball
at your local park. Another player misses a shot and you go
for the ball on the rebound. However, a player on the opposing
team goes after the ball, too. The other player starts flailing
his arms and hits you in the eye with an elbow, causing you to
become blind in that eye. Can you sue the other player for the
lost vision in your eye and all that comes with it? Well, you can
sue him but you won’t win.

According to the California Supreme Court, careless conduct
(“negligence”) by other players is an inherent risk in
many sports, and holding co-participants liable for resulting
injuries or deaths would discourage vigorous competition. The
California Supreme Court held that those involved in a sporting
activity do not have a duty to reduce the risk of harm that is
inherent in the sport itself. They do, however, have a duty not
to increase that inherent risk through behavior that is intentional
or is “so reckless as to be totally outside the range of the
ordinary activity involved in the sport.”

Whether a person assumes the risk of being injured depends
on the nature of the sport or activity in question and the person’s
relationship to that activity. In the context of sports, the question
turns on whether a given injury is within the “inherent risk
of the sport.” Conduct is totally outside the range of ordinary
activity involved in the sport if the prohibition of that conduct
would neither deter vigorous participation in the sport nor otherwise
fundamentally alter the nature of the sport.

In a landmark case, a player carelessly knocked over a coparticipant
and stepped on her hand during a touch football
game. The California Supreme Court ruled that the conduct was
an inherent risk of the sport and therefore rejected the injured
player’s complaint for monetary damages on the basis that she
had assumed the risk of being injured. The Court reasoned that
vigorous participation in such sporting events likely would be
chilled if legal liability were to be imposed on a participant on
the basis of his ordinary careless conduct.

By choosing to participate in the sport, a person assumes
that level of risk inherent in the sport. In a sports context, a
court does not look at which risks a particular participant subjectively
knew of and chose to encounter. Rather, the court
evaluates the fundamental nature of the sport and the offending
player’s role in or relationship to that sport in order to determine
whether the player owed a duty to protect a participant
from the particular risk of harm.

The degree of the risk anticipated varies from sport to sport.
While bodily harm is expected in prize fighting, the fighters do
not consent to or assume the risk of being stabbed or shot in
the ring. At the other extreme, in bridge or table tennis, bodily
harm is not contemplated at all. As one court stated: “The correct
rule is this: If the defendant’s actions, even those which
might cause incidental physical damage in some sports, are
within the ordinary expectations of the participants—such as
blocking in football, checking in hockey, knock-out punches
in boxing, and aggressive riding in horse racing—no cause of
action can succeed based on a resulting injury.”

For example, in baseball, a batter is not supposed to carelessly
throw the bat after getting a hit and starting to run to
first base. However, the “assumption of risk” doctrine recognizes
that “vigorous bat deployment” is an integral part of the
sport of baseball and a risk players assume when they choose
to participate. Especially in the heat of competition, and in an
effort to get to first base quickly, a batter may be careless in
getting rid of the bat. Under the assumption of risk doctrine,
the hitter does not have a duty to other players or spectators to
avoid carelessly throwing the bat after getting a hit.

A chilling effect on players participating in the sport would
result from imposing liability on players for ordinary careless
conduct. The California Supreme Court stated that “even
when a participant’s conduct violates a rule of the game and
may subject the violator to internal sanctions prescribed by the
sport itself, imposition of legal liability for such conduct might
well alter fundamentally the nature of the sport by deterring
participants from vigorously engaging in activity.” Accordingly,
the California Supreme Court has held that co-participants’
limited duty of care is to refrain from intentionally injuring
one another or engaging in conduct that is so reckless as to be
totally outside the range of the ordinary activity involved in the
sport.

It doesn’t make a difference if one of the participants is penalized
for such actions by the officials. Routine rule violations,
such as clipping in football, low blows in boxing, and fouls in
horse races are common occurrences and within the scope of
the athletes’ expectations. In an intercollegiate baseball game,
a pitcher on the Rio Hondo Community College team hit a
batter on the Citrus Community College team with a normal
pitch. The next inning, the Citrus pitcher allegedly retaliated by
hitting a Rio Hondo batter with a “beanball.” The Rio Hondo
player sued the Citrus Community College District for negligence.
The California Supreme Court ruled that the suit was
barred by the assumption of risk doctrine, stating that while it
is against the rules of baseball to intentionally throw at a batter,
being intentionally thrown at is a fundamental part and inherent
risk of the sport of baseball. The Court commented that it
is not the function of personal injury (“tort”) law to police such
conduct.

As for non-contact sports such as golf, the California Supreme
Court held that the “assumption of risk” doctrine applies and
that being struck by a carelessly hit golf ball is an inherent
risk of the sport. In determining whether the defendant acted
recklessly, the trier of fact (i.e., the jury) must consider both
the nature of the game and the totality of circumstances surrounding
the shot. In making a golf shot, the player focuses on
the ball, unlike other sports in which a player’s focus is divided
between the ball and other players. That is not to say that a
golfer may ignore other players before making a shot.

Ordinarily, a golfer should not make a shot without checking
to see whether others are reasonably likely to be struck. Once
having addressed the ball, a golfer is not required to break his
concentration by checking the field again. Nor must a golfer
conduct a head count of the other players in the group before
making a shot. Many factors will bear on whether a golfer’s conduct
was reasonable, negligent, or reckless. Relevant circumstances
may include: (1) the golfer’s skill level, (2) whether topographical
undulations, trees, or other impediments obscured
his view, (3) what steps he took to determine whether anyone
was within range, and (4) the distance and angle between a
plaintiff and defendant.

In one case, a student rock climber was killed after a fall
allegedly caused by his instructors’ improper placement of
rope anchors. The court rejected the survivors’ lawsuit, stating
that “Falling, whether because of one’s own slip, a coclimber’s
stumble, or an anchor system giving way, is the very
risk inherent in the sport of mountain climbing and cannot
be completely eliminated without destroying the sport itself.”
That court further found that the defendant met the burden
of proving that the climber was not taken beyond his level of
experience and capability in the activity culminating in his fall,
and that the risk to him was not beyond that inherent in any
climbing activity.

A sport instructor may be found to have breached a duty of
care to a student or athlete only if the instructor intentionally
injures the student or engages in conduct that is reckless in the
sense that it is totally outside the range of the ordinary activity
involved in teaching or coaching the sport. A 14-year-old novice
on a school swim team broke her neck during a meet when she
executed a practice dive into a shallow racing pool located on
school property. The California Supreme Court held that the
case should go to trial as a jury could find that the coach’s conduct
was reckless in that it fell totally outside the range of ordinary
activity involved in teaching or coaching the sport.

The injured girl presented evidence of the coach’s failure to
provide her with training in shallow-water diving, his awareness
of the girl’s intense fear of diving into shallow water, his
conduct in lulling the girl into a false sense of security by promising
that she would not be required to dive at competitions, his
last-minute breach of this promise in the heat of competition,
and his threat to remove her from competition or at least from
the meet if she refused to dive. The girl’s evidence also supported
the conclusion that the maneuver of diving into a shallow
racing pool, if not done correctly, posed a significant risk
of extremely serious injury, and that there is a well-established
mode of instruction for teaching a student to perform this
maneuver safely. The court found that the evidence presented
by the injured girl raised a disputed issue of fact as to whether
the coach provided any instruction at all to the girl with regard
to the safe performance of such a dive, as well as to the existence
and nature of the coach’s promises and threats. Thus, the
court concluded the girl was entitled to a trial in front of a fair
and impartial jury and her lawsuit should not be thrown out.

In the context of snow skiing, the courts have held that the
participant assumes the risk of being injured by moguls on a
ski run, snow-covered stumps, variations in terrain, changes in
surface or subsurface snow conditions, bare spots, other skiers,
snow-making equipment, and many other hazards which must
be considered inherent in the sport of skiing. Generally, a skier
is not liable for running into another skier, because it is not
done recklessly or deliberately, but is usually the result of mere
ordinary carelessness (negligence). However, while inadvertent
collisions are an inherent risk of skiing and therefore assumed
by the participants, a skier does not assume the risk that other
skiers will ski while intoxicated. The increased risks of injury
created by the consumption of alcohol are not inherent in the
sport of skiing.

However, not all risks of being injured while using the slopes
are assumed. For instance, a skier who was struck and injured
by a runaway snowboard that was not equipped with a retention
strap was not barred from suing the careless snowboarder.
The court held that the assumption of risk doctrine was not an
absolute bar to recovery on the facts presented, as the jury could
find that the lack of a retention strap increased the risk of harm
to the victim beyond what was inherent in the sport of skiing.

Although a snow skier or snowboarder assumes the risks
inherent in the activity, that does not include assuming the risk
that he may be injured by a defective chair lift. A snow skier or
snowboarder puts his life and limbs in the hands of the owner
or operator of a chair lift, gondola, or tram that takes people up
to the top of the mountain. In California, a chair lift or tram is
deemed to be a “common carrier” of skiers and others up (or
down) the hill. As such, it owes its riders the duty of utmost
care and diligence. A cable car company that, for a fee, shuttles
passengers up the snowless slopes of a mountain for downhill
bike riders, sightseeing, and other activities is a common carrier,
too.

A commercial operator of a horse-riding facility has the
duty to supply horses that are not unduly dangerous, to warn
patrons renting a given horse of its predisposition to behave in
certain ways which add to the ordinary risk of horse riding, to
not provide faulty saddles, and to not provide dangerous trails.
Being cut by the blade of another skater during a group figure
skating session is an inherent risk of the sport, and the injured
skater cannot recover for personal injuries under the doctrine
of “primary assumption of risk.”

Bungee jumping is a popular pastime for many people who
want to feel the experience of flying and the freedom it brings.
Unfortunately, sometimes the bungee cord is not secured
properly, or otherwise fails to stop the rider’s fall, causing the
rider to free-fall a total of hundreds of feet, resulting in serious
injuries, even death. Owners and operators of bungee jumping
companies must check the bungee cord regularly to ensure that
it is still safe and sound. The person who is actually securing the
bungee cord to the stationary surface—such as a bridge—must
make sure that the bungee cord is properly fastened and will
not slip or break when the person stretches the bungee cord
to the limit, putting the most pressure on the site where the
bungee cord is secured.

The operator must also make sure that the bungee cord and
equipment are property fastened to the jumper’s leg and foot,
ensuring that it will not break or the jumper’s leg will not come
out of the equipment. Often, a person who participates in a
bungee jump is given a “written release of liability” or waiver
to sign, in which she promises not to sue the bungee-jumping
company if she is injured in the jump, even if the injury is due
to some carelessness (negligence) on the bungee-jumping
company’s part. Such releases of liability, sometimes called a
waiver, are discussed below.

NEGLIGENT DESIGN OF COURSE

Although a person may be barred from recovery on the basis
that he assumed the risks inherent in the sport, one risk that
is not assumed is that the playing field or course has been
negligently designed, thereby increasing the risk of harm
to the participant beyond what is inherent in the sport. This
was the case in a lawsuit that involved a 17-year-old boy who
was injured while racing his bicycle on the defendant’s bicycle
motocross (BMX) course. By its nature, BMX racing includes
bumps, jumps, turns, straight-aways and obstacles. The boy
was injured on the “million dollar jump,” which consisted of
two bumps joined together in a saddle-like configuration.

Both parties (the victim and the BMX operator) submitted
declarations of experts that conflicted on the cause of the
injury. The injured boy’s expert stated that the “million dollar
jump” was defectively designed in that the slope of the first
hill of the jump was too steep and caused the rider’s center of
gravity to rise too abruptly, leading to the accident. The BMX
operator’s expert witness submitted a declaration in which he
stated that the jumps at the BMX park were of the type that
could be expected at any BMX track. The court held that there
is a duty to refrain from using BMX jumps that by design pose
an extreme risk of injury, and it was a question of fact for the
jury to decide whether that duty was breached by virtue of the
design of the million dollar jump.

The court stated that it is not unreasonable to expect a BMX
course to refrain from utilizing jumps that by design create an
extreme risk of injury. Certainly the jumps and falls are inherent
to the sport, and there is no duty to eliminate the jumps
entirely. Nor is there a duty to protect a participant from injury
arising from reasonably designed jumps. However, the sport
does not inherently require jumps that are designed in such a
way as to create an extreme risk of injury. The court concluded
that a duty to exercise due care is owed to a bicycle racer injured
on a bicycle jump that by its design creates an extreme risk of
injury.

Likewise, a golfer assumes the risk that she may be hit by an
errant golf ball; however, she doesn’t assume the risk that the
golf course has been negligently designed in such a way that
increases the risk of being injured beyond what is reasonably
expected.

EXPRESS RELEASES OF LIABILITY

Before you are allowed to participate in a recreational activity—
be it rock climbing, horse riding, participating in a baseball
league, a bicycle race, a running marathon, bungee jumping, or
parachuting, for example—you may be asked to sign a written
“express release of liability” (also known as a “hold harmless”
contract, a waiver agreement, or an exculpatory clause). An
express release of liability is an assumption of risk by which
you, in advance, take your chances of injury from known (and
sometimes unknown) risks arising from what the other party is
to do or leaves undone. A well-drafted release relieves the other
party of his legal duty to you; that is, he cannot be held liable
to you even if he was careless (“negligent”). However, a release
that does not clearly and unambiguously inform an ordinary
person untrained in the law that its purpose and effect is to
relieve the owner/operator of the business of responsibility is
not enforceable and will not bar a lawsuit by a person who was
injured by the other party’s negligence.

A release—no matter how well written—cannot relieve the
party from wrongdoing more serious than negligence, such
as gross negligence, recklessness and intentional misconduct.
The release agreement is usually given on a take-it-or-leaveit-basis,
and you have no negotiating or bargaining power; the
release is valid unless it involves the “public interest.” However,
California courts have uniformly refused to find a public interest
or to invalidate releases from liability for ordinary negligence
for injuries that occur in the context and course of sports
and recreational activities.

Just because you may have signed a release or received a
pass or ticket with a waiver or release written on it does not
necessarily mean that you are out of luck. To be effective to
relieve a party from future carelessness or misconduct, the
release must be clear, explicit, and comprehensible in each of its
essential details. If the language is ambiguous or convoluted so
that it does not clearly notify you that you cannot sue the party
even if he was negligent, the release is invalid. If the release is
printed in fine print on a portion of a document you are not
likely to notice, the release may not apply. Under contract law,
if there is any ambiguity about the meaning of a word, phrase,
sentence, or entire paragraph, it is construed against the party
that drafted the release.

A release that was both broad and explicit and through
which a rock climber not only expressly acknowledged and
assumed “all the risks” of rock climbing activities, both known
and unknown, “whether caused or alleged to be caused by the
negligent acts or omissions” of the rock climbing facility was
enforceable and provided a complete defense to the lawsuit
filed by a seasoned rock climber who was injured in a fall.

INJURIES TO SPECTATORS AT SPORTING EVENTS

Foul balls hit into the spectators’ area clearly create a risk of
injury at baseball games. But if such foul balls were to be eliminated,
it would be impossible to play the game. Thus, the risk of
being hit by a foul ball is an inherent risk to spectators attending
baseball games. The owner of a baseball stadium has no
duty to protect spectators from the natural hazards generated
by the way in which the game itself is played. In determining
whether an individual should be compensated for her injury
and in crafting a rule that would permit or reject such compensation,
there is a group of persons other than the immediate
parties whose interests are worthy of consideration. Those are
the literally millions of people who attend baseball games all
over the country.

In one lawsuit by a spectator who was hit by a foul ball, the
court stated,

As we see it, to permit plaintiff to recover under the circumstances
here would force baseball stadiums to do one of
two things: (1) place all spectator areas behind a protective
screen thereby reducing the quality of everyone’s view, and
since players are often able to reach into the spectator area
to catch foul balls, changing the very nature of the game
itself; or (2) continue the status quo and increase the price
of tickets to cover the cost of compensating injured persons
with the attendant result that persons of meager means
might be “priced out” of enjoying the great American pastime.
To us, neither alternative is acceptable. In our opinion
it is not the role of the court to effect a wholesale remodeling
of a revered American institution through application
of [personal injury] law.

One of the natural risks assumed by spectators attending
professional baseball games is that of being struck by batted
or thrown balls. The management is not required, nor does it
undertake, to insure patrons against injury from such sources.
All that is required is the exercise of ordinary care to protect
patrons against such injuries and, in doing so, the management
is not obliged to screen all seats, because many patrons prefer
to sit where their view is not obscured by a screen. Moreover,
the management is not required to provide screened seats for
all who may apply for them. The duty imposed by the law is
performed when screened seats are provided for as many as
may be reasonably expected to ask for them on any ordinary
occasion.

If a spectator chooses to occupy an unscreened seat or is
unable to obtain a secured seat and consequently occupies one
that is not protected, she is considered to be sufficiently warned
of the risk of being hit by a foul ball or a thrown or broken bat by
common knowledge of the sport, and assumes the risk of being
struck by thrown or batted balls. If such a spectator is injured
thereby, she is therefor barred from recovering damages. The
courts reason that a person who fears being injured always has
the option of not attending a baseball game or sitting in a part
of the park that is out of reach of balls traveling with enough
speed to cause them harm.

One woman who was an ardent Los Angeles Dodgers fan
was injured when she was struck in the head by a foul ball and
filed a lawsuit to recover the costs and expenses of her injuries
and other damages. The court held that the woman had
impliedly consented to take her own chances that she would
not be injured by voluntarily electing to sit in a seat that was
clearly unprotected by any form of screening. The court stated
that, rather than request a seat in a section where injury was
unlikely to occur, the woman chose to accept a highly sought
after seat, close to the “sphere of action,” where the likelihood
of foul balls entering the stands remained a possibility. She was
sufficiently warned of the risk by the common knowledge of the
nature of the sport and by the warning provided on the back
of her ticket. Thus, the court concluded that the Dodgers were
under no duty to do anything further to protect her from that
hazard.

However, not all risks of being hit by a foul ball are necessarily
assumed by the spectators. A spectator at a minor
league professional baseball game was sitting in an uncovered
section of the stadium when a foul ball struck
Immediately before being hit, the team’s mascot (a man dressed
in a dinosaur costume as a character named “Tremor”) was
behind the victim and the mascot’s tail was hitting the victim
on the head and shoulders. The victim turned to see what the
mascot was doing, and as he was turning back around to face
the field, a foul ball hit him before he could react to it. The court
agreed with the general rule that the risk of being hit with a
foul ball was inherent in the sport of baseball and such risk was
therefore assumed by spectators.

However, the court found that in this case the antics of the
mascot may have increased the inherent risk to the victim and
was a question of fact for the jury to decide at a trial. The court
noted that the antics of a mascot were not an essential or integral
part of the playing of a baseball game, and the game could
be played in the absence of such antics. Indeed, the person who
dressed up as the mascot submitted a sworn written statement
(a “declaration”) that there were occasional games when he had
not been there, but the game was nevertheless played.

Of course, if a person chooses to sit in a seat that is protected
by a screen, but the screen turns out to be defective and lets a
foul ball through to hit and injure the spectator, the spectator
may have the right to sue the owner/operator of the stadium
for her injuries.

The rule against spectators being hit by flying debris does not
apply solely to baseball stadiums. A woman was injured when,
during pre-game warm-ups at a Los Angeles Kings ice hockey
game, a puck flew off the ice and struck her in the mouth. The
woman claimed that the “assumption of risk” doctrine did not
apply in her case. She asserted that while the risk of being hit
by a puck at an ice hockey game is an assumed risk, the risk of
having her view blocked by large groups of spectators congregating
near the ice so she could not see the playing surface or
the puck was not an inherent risk of the game. The court denied
her claim, stating that just as baseball stadium owners owe no
duty to eliminate the risk of injury from foul balls, the owner of
an ice rink owes no duty to eliminate the inherent risk of injury
from flying pucks during a hockey game or warm-ups.

As for the injured spectator’s contention that she did not
assume the risk that her view would be blocked by groups
of people milling around in front of her, the court held that
obstructions of view caused by the unpredictable movements
of other fans are an inherent and unavoidable part of attending
a sporting event. The court noted that views are blocked
whenever fans spontaneously leap to their feet or move to and
from their seats.

Millions of Californians and out-of-state visitors annually
visit the Golden State’s permanent amusement parks, such as
Disneyland, Magic Mountain, Universal Studios, and Knott’s
Berry Farm, and go on amusement rides. In addition to visiting
permanent amusement parks, millions of people visit annual
county fairs or other traveling carnivals that bring with them a
mobile midway equipped with dozens of amusement rides for
young and old. Then there are church fairs and private birthday
parties where people rent inflatable slides and “moon bounce”
castles for youngsters to frolic on.

Unfortunately, a significant number of people are seriously
injured or killed by amusement park or carnival rides that malfunction
because of faulty operation; operator inattentiveness
or carelessness; faulty design, construction, or maintenance;
or lack of warnings regarding the required age, height, weight,
and medical condition of a prospective rider.

Some amusement ride users are injured when they are
thrown from their car because of the lack of a safety bar or a
defective seat belt, or the car itself may detach from the ride
causing serious injury to or even death of the riders or other
fairgoers who are walking or standing in the area. In some
cases, the rider is killed because of a defective ride or the negligence
of the owner or operator in inspecting and maintaining
the ride every day to ensure its safety.

Sometimes a rider who is injured because the ride isn’t in
safe working condition will escape with only a few bumps and
bruises. A number of others, however, will lose fingers or toes, a
hand or foot, or even an arm or leg if the limb gets trapped in a
tight space while the ride is moving. Or they may suffer broken
bones, such as in an arm or leg. Some riders who get into an
accident with a faulty amusement or recreational ride may sustain
an injury to their spinal cord that leaves them paralyzed
from the neck down (“quadriplegic”) or paralyzed from the
waist down (“paraplegic”). Some riders will be killed due to a
defective amusement ride.

At times, riders—especially those who ride the high-speed
roller coasters and similar “thrill” rides—suffer traumatic brain
injury (TBI, discussed in depth in Chapter 30) as a result of
the ride. Severe TBI can result even if the rider didn’t strike
his head on anything during the course of the ride. Rather, the
force of the violent shaking of some rides is enough to result
in severe TBI by causing the rider’s brain to move around and
hit the inside of the skull. Often, a person who has ridden on a
thrill ride will get off the ride feeling dizzy or nauseous. These
are symptoms of possible serious brain injury and the person
should be checked out by a physician (not just the park’s nurse)
as soon as possible to prevent serious brain injury. (This method
of brain injury is the same mechanism that works to cause brain
damage in “shaken baby syndrome,” when the child isn’t struck
but is violently shaken back-and-forth and from side-to-side.)

AWS PERTAINING TO AMUSEMENT RIDES

There is no single government body that oversees all types
of amusement rides throughout the United States. The U.S.
Consumer Products Safety Commission (CPSC) has jurisdiction
over traveling carnival rides, like the kind that follow county
fairs throughout the state. The CPSC does not have jurisdiction
over permanent amusement parks or water parks. The CPSC
does, however, have jurisdiction over inflatable rides, such as
inflatable slides and bounces.

Unlike the federal government, California has many rules
and regulations regarding most permanent amusement parks
and rides therein to ensure that they are safe and will not subject
the riders to an undue risk of harm. The California Division
of Occupational Safety and Health (Cal-OSHA) Elevator, Ride
& Tramway unit regulates rides and devices at large theme
parks, smaller parks, fairs, traveling carnivals, and places offering
bungees (see the next chapter for more on bungee jumping)
or waterslides. Dry slides are explicitly exempt from regulation.
Inflatables, whether they are located at a traveling carnival
or permanent amusement park, or are rented from a private
business, do not meet the definition of amusement ride under
California law and therefore are not regulated by the state, but
are regulated by the federal CPSC.

For permanent park rides, state inspectors perform an
annual records audit, unannounced operational inspections,
and physical inspection of the ride each year. In addition, ride
owners are required to have a Qualified Safety Inspector certify
annually that each ride meets industry standards and state
regulations.

All portable amusement rides are inspected before they are
originally put into operation for the public’s use and at least
once every year thereafter. Additionally, portable rides may be
inspected each time they are disassembled and reassembled.
Cal-OSHA regulations require all ride owners to report accidents
resulting in death or injuries requiring medical attention
other than ordinary first aid. As of 2008, portable ride owners
must report major mechanical failures and any accident in
which a patron falls or is ejected from the ride mid-cycle,
regardless of injury.

California law requires the owner/operator of an amusement
ride to be familiar with the ride manufacturer’s information on
assembling and maintaining an amusement ride and follow the
manufacturer’s recommendations, service bulletins, warnings
of defective conditions, recalls, etc. Of course, the ride-owner/
operator’s failure to read and follow all of the manufacturer’s
instructions and warnings regarding the assembly, construction,
operation, maintenance, and take-down of an amusement
or recreational ride can lead to an injury to or death of riders
and provide a basis of carelessness (“negligence”) on the part of
the ride’s owner or operator.

AMUSEMENT RIDES AS “COMMON CARRIERS”

In one case, a 23-year-old woman suffered a severe brain
injury and eventually died from her injuries several weeks after
riding on the Indiana Jones amusement ride at Disneyland
in Anaheim. The deceased woman’s estate sued Disneyland,
claiming that the woman had suffered serious brain injuries
due to the violent shaking and stresses imposed by the ride.
The estate alleged that the Indiana Jones attraction utilized
jeep-style ride vehicles that were computer-controlled with
160,000 different combinations.

The estate alleged that the ride was “fast, turbulent, combining
the ups and downs of a roller coaster with jarring jumps,
drops, and unpredictable movements,” and that the Indiana
Jones attraction shook and whipsawed riders “with such fury
that many passengers are forced to seek first aid and in some
instances hospitalization.”

The woman’s estate claimed that the ride’s sudden changes
in direction could and did cause bleeding in the woman’s brain
similar to what happens in “shaken-baby syndrome.” The case
was appealed to the California Supreme Court on the question
of whether or not the amusement ride was a “common carrier.”
The reason for designating a ride as a common carrier goes to
the duty of safety (standard of care) the owner/operator of the
amusement ride owes its riders. If designated a “common carrier,”
the amusement ride owner/operator is held to a higher
standard of care than would normally be applied (i.e., ordinary
carelessness or negligence). Examples of common carriers are
buses, trains, and subways that carry passengers for a fee.

The Supreme Court of California ruled that the Indiana
Jones ride met the “common carrier” criteria, despite the
fact that it started and ended in the same place and did not
transport passengers from one site to another. The fact that
a passenger begins and ends the ride in the same place does
not mean that she has not been transported. As the California
Supreme Court stated in one case, “A tourist in San Francisco
who takes a round-trip ride on a cable car solely for entertainment
has been transported and is no less entitled to a safe ride
than another passenger on the same cable car who disembarks
to visit a store or restaurant.”

As a common carrier with regard to its rides, the amusement
park, traveling ride owner/operator, or other ride owner/operator
owes its riders the highest degree of care for their safety and
is legally responsible (“liable”) for all of the costs and expenses
caused by even the slightest bit of carelessness (“negligence”)
of the ride’s owner/operator. An amusement park or traveling
carnival must use the utmost degree of care and diligence for
the safe passage of its riders, must provide everything necessary
for that purpose, and must exercise to that end a reasonable
degree of skill. Owners and operators of amusement rides
are legally required to do all that human care, vigilance, and
foresight reasonably can do under the circumstances.

Owners and operators of amusement rides are liable to their
riders for injuries or death if they were even the slightest bit
careless (“negligent”) in the operation, maintenance, design,
construction, or warnings associated with the ride. Further, the
owner or operator of an amusement ride is required to provide
vehicles and rides that are safe and fit for the purposes to which
they are put, and is not excused for default in this respect by
any degree of care.

Roller coasters have been considered “common carriers”
in California since at least 1934 when the California Supreme
Court so ruled in a personal injury case. In that case, the court
described the ride upon which the victim was injured as a
“roller coaster” that was “in the nature of a miniature scenic
railway consisting of a train of small cars constructed to carry
two passengers each.” The owner and operator of a scenic railway
in an amusement park is subject, where he has accepted
payment from passengers on such railway, to the liabilities of
a carrier of passengers generally, i.e., a common carrier. The
common carrier’s higher standard of care originated in English
common law, and is based on a recognition that the privilege
of serving the public as a common carrier necessarily entails
great responsibility, requiring common carriers to exercise a
high duty of care toward their customers.

The common carrier rule that applies to amusement rides
is not limited to roller coasters and high-speed thrill rides. In
one case, the court held that the operators of a horse-drawn
stagecoach ride at Disneyland were common carriers, and
were therefore held to the higher standard of care when the
horses became frightened and ran, causing the coach to tip
over, injuring the riders. The common-carrier rule was also
applied in a personal injury case arising out of the “Pirates of
the Caribbean” amusement ride at Disneyland. Several riders
were injured when the boat in which they were riding was
struck from behind by another boat. The appellate court held
that the boat ride came within California’s broad definition
of a “common carrier,” as Disneyland offered to carry riders
from the mass public and therefore owed the riders the duty of
utmost care and diligence.

The operator of a mule train that took passengers from Palm
Springs to Tahquitz Falls and back was considered a common
carrier and therefore was held to a higher standard of care for
protecting his customers from harm. Holding that the mule
train was a common carrier, the court concluded: “The only
reasonable conclusion to be drawn from these facts is that
a person who paid a roundtrip fare for the purpose of being
conducted by mule over the designated route between fixed
termini, purchased a ride; that the [owner/operator] offered to
carry such a person by mule along that route between these
termini; and that the transaction between them constituted an
agreement of carriage.”

The owner and operator of an amusement ride, be it at a
set permanent place, such as Disneyland, or a traveling ride
such as the ones that follow county fairs across the state, is
required to provide its riders with rides that are “safe and
fit for the purposes to which they are put.” This means that
the ride and its cars must be in good working condition and
are safe to carry riders. For instance, the owner/operator of
the amusement or recreational ride owes its customers the
duty to ensure that the brakes on the ride are in good working
condition so that it will stop at the end of the ride without
careening into other cars in front of it, that all cables are in
good condition so that the cable pulling a car up a rise doesn’t
break, causing the car to travel back downward into another
car, and that seatbelts and safety bars are working properly
in general and are properly secured by the owner/operator or
his employees when a rider sits in the car. The owner/ operator
of an amusement ride also has the obligation to inspect
the entire ride periodically to see if there are any cracks, failing
welds, or other defects in the ride that could fail or break,
causing injury to or death of the riders.

Amusement rides have inherent dangers due to speed and
mechanical complexities. They are operated for profit and
are held out to the public to be safe. They are operated in the
expectation that thousands of visitors, many of them children,
will occupy their seats. Riders of roller coasters and other thrill
rides seek the illusion of danger while being assured of their
actual safety. The rider expects to be surprised and perhaps
even frightened, but not hurt. The rule that carriers of passengers
are held to the highest degree of care is based on the recognition
that “to his diligence and fidelity are entrusted the lives
and safety of large numbers of human beings.” The California
Supreme Court has stated that this rule applies equally to all
common carriers, be it an amusement park ride bus, airplane,
train, or other form of transportation.

INFLATABLE SLIDES AND BOUNCY CASTLES

Each year, inflatable rides account for approximately 5,000
users being injured or killed nationwide. Inflatable slides and
bouncy castles of the type one might find at a church fair or
a private birthday party are not subject to the “common carrier”
rule, as they do not transport the users. Nevertheless, the
owner/operator of the inflatable attraction has the obligation
to use reasonable care in ensuring the inflatable is safe for use
and is required to maintain, erect, and operate the attraction
in a reasonably safe condition to prevent users of the inflatable
from an undue risk of harm.

For instance, if the inflatable is improperly erected and
secured, or is old and worn, if it deflates causing a user to suffer
injuries—such as broken bones or head or brain injuries—then
the company that rented, erected, maintained, or operated the
ride may be legally responsible (“liable”) for the user’s injuries
or death. The owner/operator of the inflatable is required to
give the renter of the inflatable complete instructions on the
proper use of the inflatable and any warnings as to how it
should not be used or weight limits to protect the users from
undue harm.

If the owner/operator of the inflatable attraction fails to
use due care in setting up the inflatable, making sure that it is
properly secured to the ground so that is does not move around
or can be blown over by the wind, and is properly inflated, she
can be liable for all injuries and damage caused by her negligence.
An inflatable castle or other “moon bounce” attraction
must be securely anchored so that a gust of wind will not blow
it over, causing injuries to or death of the users. Sometimes the
inflatable will suddenly deflate, causing the users to fall hard to
the ground, suffering broken limbs, internal injuries, traumatic
brain injury, and even death.

WHAT TO DO IF YOU HAVE BEEN INJURED ON AN AMUSEMENT RIDE

If you have been injured on an amusement park ride, on a
traveling carnival ride, or at a private birthday party or other
event that rented defective rides and inflatables, you should
seek medical attention as soon as possible. That dizziness or
headache you feel after a thrill ride may be symptomatic of a
traumatic brain injury that requires immediate treatment. Pain
in the back or limbs should be evaluated as soon as possible
at the nearest emergency department to ensure that no bones
are broken. Be aware that if you injured your neck or back and
cannot move your legs or arms, or have tingling in your hands
or feet, you should not move or be moved but should rather
call the paramedics right away and stay immobilized until they
arrive. The paramedics will properly secure you to a hard spine
or cervical board before transporting you to the hospital. If
your spine is not immobilized properly before you are taken to
the hospital, your spinal cord could be injured further resulting
in serious injury, such as quadriplegia or paraplegia. (This type
of injury is discussed in detail in Chapter 29.)

If you have been injured or a loved one killed in an amusement
ride accident, you should contact an experienced personal
injury lawyer as soon as possible. This gives the lawyer the
chance to see the accident scene and check out the ride before
the owner/operator has the chance to make any modifications
to it. Hiring a lawyer immediately is especially important when
you have been injured by an amusement ride at a traveling
midway or carnival so the lawyer can send out his investigators
before the ride has been dismantled and moved to another part
of the state or country, resulting in the loss of key evidence.

Medical malpractice involves the negligence of a physician or
surgeon, or anyone else in the business of providing physical
and mental health care services. The error may be one in diagnosis,
such as where the doctor misses or misinterprets (“misdiagnoses”)
a condition as benign rather than the beginnings
of a serious problem. Sometimes the error is obvious, such as
when the surgeon mistakenly removes a healthy kidney rather
than the diseased one. Sometimes the malpractice is more
subtle, such as where the doctor fails to heed the warning signs
of diabetes and treat the patient with medication and exhort
her to check her blood sugar frequently, watch her diet, lose
weight, and/or exercise more. Expert testimony of physicians
or surgeons in the same field of medicine as the doctor you are
suing are usually necessary to prove the degree (“standard”) of
care and how the physician deviated from it.

ELEMENTS OF A SUCCESSFUL MEDICAL MALPRACTICE CASE

Three elements need to be proved to be successful in a medical malpractice case:

  1. The victim must prove what the “standard of care” was; that
    is, what would a reasonable doctor acting under the same or
    similar circumstances in the same or similar locality have done?
  2. The victim must prove that the doctor failed to meet the
    standard of care, in that his conduct was below the acceptable
    standard of care of other doctors acting under the same or similar
    circumstances.
  3. The victim (or her heirs) must prove that she was injured or
    killed due to the health care provider’s negligence.

LIMITATION ON DAMAGES

Most good medical malpractice lawyers will not take a medical
malpractice case unless he believes it is a meritorious case and
is worth at least $500,000 or more. The reason for this limitation
is a law that was passed back in 1975, known as the Medical
Injury Compensation Reform Act of 1975 (usually referred to
by its acronym, MICRA). MICRA has several provisions that
make it harder to sue negligent physicians, surgeons, hospitals,
and other health care providers. For instance, although you can
collect in full for all of your medical expenses, past and future,
and all of your lost wages and loss of earning power (so-called
“economic damages”), the most you can recover for so-called
“non-economic damages” such as pain and suffering and loss
of enjoyment of life is only $250,000. The statute also limits
the amount of fees the lawyer may charge for representing you,
which is less than what he could charge in other types of personal
injury and wrongful death cases.

MICRA was passed during a time when doctors were complaining
about the sudden and steep increases to their malpractice
insurance premiums. Insurance companies said the
rise was justified due to the number of frivolous cases brought
by unscrupulous, smooth talking attorneys who could sway and
convince a jury that the doctor made a mistake and that the
client had suffered an astronomical amount of financial and
medical expenses and had undergone severe and prolonged
pain and suffering. The insurance companies conveniently
avoided bringing up the facts that they were suffering because
of some bad investment and underwriting practices they had
made, and the cyclical nature of personal injury payouts.

Another reason medical malpractice lawyers are hesitant to
take cases worth less than $500,000 is that it takes a lot of time
and money to prosecute a medical malpractice case through
trial. Medical malpractice cases often turn into an expensive
“battle of the experts.” The injured victim’s expert doctor will
say it was malpractice, while the defendant doctor’s expert witnesses
will testify that the care was proper and appropriate.
The lay jury—most of them unschooled in medical matters—are
left to make heads or tails out of the experts’ testimony. In most
cases, especially those dealing with complex medical or surgical
issues, the jury will believe the doctor who comes across as the
most knowledgeable and confident of all the expert witnesses,
rather than trying to sort out and deal with the technical medical
testimony itself.

Doctors have long looked out for each other, one major
reason being that if they were ever accused of malpractice
themselves, they would not want any of their fellow colleagues
to testify against them. Accordingly, a code or “conspiracy of
silence” among the medical profession arose and existed as
early as the start of the 20th century. Thus, in medical malpractice
cases, it is often necessary to bring in an out-of-town
doctor who is familiar with the medical standards of the area in
which the defendant doctor was practicing.

Doctors charge high fees to review medical records to determine
whether or not there was malpractice, and their fees for
testimony at a deposition or trial is exorbitant. Indeed, some
doctors make a very lucrative living just acting as experts in
medical malpractice cases. It is much easier for the defendant
doctor—whose malpractice insurance carrier is paying the
bills—to get doctors to testify on his behalf.

Millions of Americans are injured or killed each year due to
defective, faulty products that are dangerous even when being
used for their intended purposes. Unlike other types of cases,
such as automobile accidents or “slip and fall” cases, it is
not necessary to prove that the manufacturer, distributor, or
retailer of the product—or anyone else involved in the “stream
of commerce”—was careless (“negligent”) in designing or
making the product. Rather, the manufacturer, distributor, or
retailer is “strictly liable” for injuries, deaths, and damage to
other property caused by a product that is dangerous because
of a defect in its design or manufacture when it is being used for
an intended or “foreseeable” use.

The rationale behind holding a manufacturer, distributor,
or retailer strictly liable for a defective product without regard
to whether it was negligent or not is that the manufacturer and
others in the stream of commerce are in a better position to
protect themselves from the costs associated with a defective
product than are the users of the product. For instance, the
manufacturer, distributor, or retailer can obtain insurance to
protect themselves and spread the cost of the insurance premiums
across the board by raising the price of its product a
few cents or dollars. Putting the brunt of liability for defective
products on the manufacturer, wholesaler, or retailer simply
makes this part of its cost of doing business that it can pass
along to the purchasers of its product.

WHAT IS A PRODUCT?

The definition of “product” is expansive. Products include
everything from automobiles to bottles to elevators to massproduced
residential homes and apartment buildings. But it
is not necessary that the product be mass-produced. The fact
that a product is unique does not render its maker, distributor,
or seller any less liable for any injuries or damage caused
by it if the product is defective, if the company is otherwise in
the business of manufacturing and selling products as part of
its full-time commercial activity. Thus, a company that makes
a one-of-a-kind device for a customer is bound by the laws of
strict liability. Indeed, some companies are in the business of
making specialized products for each job. This does not make
them any less subject to the laws of strict product liability.

Strict product liability, however, does not apply to the onetime
or occasional seller. For instance, if you hold a yard sale
and sell an item that turns out to be defective and causes injury,
you are not held strictly liable for the victim’s injuries. The
victim will have to prove that you were somehow negligent in
causing the defect that injured her. Proving negligence requires
a much higher standard of proof than strict liability. (Used
goods sold by non-dealers are usually “as is” sales, and come
with no warranties or guarantees.) Similarly, if a neighbor sells
you a one-time batch of tomato sauce, he would not be considered
a “seller” under products liability law. If you became
sick after eating the sauce, you would have to prove that your
neighbor was careless (“negligent”) in making the sauce, and
such negligence was the cause of your injuries.

WHO IS LIABLE?

A person or entity involved in the manufacturing, distributing,
or retailing of a product is strictly liable if: (1) the person
or company places the product on the market, (2) the person
or company knows that it is to be used without inspection for
defects, (3) the product proves to have a defect, and (4) the
defect causes injury to a person or damage to property. The
defective product must be dangerous and unsafe when used
not only for its intended purpose, but also for uses that can
be reasonably anticipated by the manufacturer, distributor, or
retailer of the product (“foreseeable” uses).

A product may be defective because of a flaw in its design or
a defect in its manufacture. The difference between a product
that is defectively designed and one that is defectively manufactured
is that, in the first case (i.e., design defects), all of the
products—even if made to the manufacturer’s exact specifications—are
defective and dangerous. When a product is dangerous
because of its design, then all products of that type are
dangerous and the product is subject to recall, and a warning
is given not to use the product and to take it back to the place
where you bought it for a full refund.

On the other hand, when there is a defect in manufacture,
that means that the product, when properly made, is safe for its
intended use, but due to a mistake in its fabrication or assembly,
the specific individual product is defective and dangerous. A
common type of error that makes an individual product unsafe
is a faulty weld. If welded properly, the product is safe for use,
but if welded improperly, the product poses an unreasonable
risk of harm to users of the product and persons nearby.

DEFECTS IN DESIGN

Mass injuries can result when products are mass produced
but defectively designed in a manner that makes them dangerous
when used in their proper way. A product is defective in
design if either: (1) the product fails to perform safely as an
ordinary consumer would expect when the product is used in
an intended or reasonably foreseeable manner or (2) the risks
inherent in the dangerous design outweigh the product’s benefits.
The first test is known as the “consumer expectation” test,
while the second test is known as the “risk-benefit” test.

Under the consumer expectation test, when a product fails
to meet an ordinary consumer’s expectations as to the safety
of the product in its intended or reasonably foreseeable use,
a manufacturer is strictly liable for the resulting injuries or
property damage. The consumer expectation test is based on
the theory that when a manufacturer places a product on the
market, it makes an implied representation that the product is
safe for the tasks it was designed to accomplish.

The risk-benefit test of a defective design involves a balancing
of the danger posed by the product’s design against
the product’s usefulness (“utility”). This doesn’t necessarily
require that the product’s risk of harm outweigh the product’s
benefits. Liability may be imposed where the product’s design
has an “excessive preventable danger,” and it would have been
feasible for the manufacturer to reduce the risk of harm by
using an alternate, safer design. For example, a glass bottle of
apple juice marketed for infant use could be made safer by an
alternative design, such as the use of plastic instead of glass,
thereby preventing injuries to infants who might be injured by
broken glass if the bottle was accidentally dropped.

DEFECTS IN MANUFACTURE

A product is defective in its making when something happens
during the manufacturing process that makes the particular
item unsafe and dangerous, even though it has been designed
safely. Some of the problems could be a faulty weld, lose or
missing screws or bolts, or the use of materials that are inferior
in quality to those called for by the specifications. The manufacturer
or supplier of a defective part that is used in the product
(a “component product”) is strictly liable for any and all
injuries and damages caused by its defective part, even though
it is incorporated into a larger product.

CHANGES TO THE PRODUCT AND LIABILITY OF RAW MATERIAL SUPPLIERS

One major criteria of strict product liability law is that, at the
time of the injury, the product was in substantially the same
condition as it was when it left the manufacturer. If the company
was in the business of supplying raw materials that would
be incorporated into the final product, the questions then are
whether the raw material met the specifications the manufacturer
set and whether the product was materially changed. If
the manufacturer ordered raw material of quality “A” but the
supplier sent an inferior quality of product, the supplier can
be held liable for strict product liability. If the supplier sends
product meeting the standard requested by the manufacturer,
but the design is faulty in not requiring a higher standard of
raw material, the supplier is not strictly liable.

If what was sent by the supplier is a dangerous material in and
of itself, the supplier can be held liable under the laws of strict
product liability if the material retains its inherent quality. The
most common example of this is asbestos. For years, asbestos
was used by many manufacturers in a number of products and
in many of them the raw asbestos was processed, yet the asbestos
(particularly its dust) retained its toxic qualities. In such a
case, the supplier of the raw asbestos is held strictly liable for
injuries resulting from the inhalation of asbestos dust.

A product may also be defective when, although the product
was properly designed and manufactured, it fails to include
adequate instructions for its use or sufficient warnings regarding
its dangers when used in a proper or foreseeable way.

IMPROPER USE OF PRODUCTS BY CONSUMERS

Note that the law does not impose absolute liability. If the
consumer were using a product in a way the manufacturer,
distributor, or retailer could not have foreseen, strict products
liability does not apply. Also, where the victim was partially at
fault for his injuries or death, the legal doctrine of “comparative
fault” applies to reduce the amount of monetary damages
the manufacturer, distributor, or retailer must pay. The fault
of the victim is weighed against (compared to) the fault of the
manufacturer, distributor, or retailer.

For instance, if the victim was 25 percent at fault for causing
his injuries, then the amount of his financial recovery is
reduced by that amount. Hence, if a jury concluded that the
total damages amounted to $100,000 but found that the victim
was 25 percent responsible for the accident, then the victim’s
award would be reduced by the percent of his fault (in this case,
25 percent), so that instead of receiving the full $100,000, the
victim would receive only $75,000.

INJURIES CAUSED BY A DEFECTIVE PRODUCT

Sometimes when a person is injured by a defective and dangerous
product, her injuries will be obvious, such as a broken arm, burns,
or head injuries. However, in some cases, it is not at all unusual
for injuries to take a few days to a few weeks—even years in the
case of asbestosis—to show up. Therefore you should contact an
experienced personal injury law firm as soon as possible after the
accident. The attorney is familiar with the types of injuries that
may arise as a result of being injured by a defective product, and
oftentimes can help find a skilled doctor to treat you.

RETAIN THE PRODUCT AND ALL DOCUMENTATION

If you have been injured or a loved one killed by a defective
product, you should promptly consult an experienced personal
injury law firm. The defective property should not be reused,
repaired, destroyed, or otherwise changed or disposed of without
first giving the attorney and her investigator the opportunity
to inspect and evaluate it. All instructions, warnings, other
packaging materials (such as the box the product came in, if
any), and receipts and warranties should not be thrown out,
but rather given to the attorney so she can evaluate the sufficiency
of assembly instructions, danger warnings, and other
important information. The attorney or her investigator will
want to talk to any witnesses of the incident while the facts are
still fresh in their minds.

In most products liability cases, the attorney will want to
keep the product in the same condition it was in when it caused
the injuries until the case is completely over. In many cases,
the attorney will want to hire an expert the appropriate certain
field to evaluate the defective product and testify at trial. The
attorney will often need to have the product and/or assembly
instructions or warnings evaluated by a professional such as an
engineer or human factors expert to see whether the product
posed an unreasonable risk of harm. For instance, if a product
failed because of metal fatigue and caused serious injuries, the
attorney will likely want to have the product tested and evaluated
by a metallurgist.

Over 4.7 million people are bitten or otherwise attacked by
dogs annually, with 800,000 of them bitten seriously enough
to require medical attention. Each year, roughly 370,000 victims
go to the emergency room for treatment of injuries due to
being bitten by a dog.

STRICT LIABILITY FOR DOG BITES

Section 3342 of the California Civil Code makes the owner of
a dog legally responsible (“liable”) for all damages suffered
by any person who is bitten by the dog while in a public place
or legally in a private place. The owner can be held liable for
injuries from a dog bite even if they occur on the dog owner’s
own property, if the person who is bitten was on the property
lawfully, such as in the performance of his lawful duty (e.g., a
postal carrier or public utility meter reader). The dog’s owner
is also liable for any bites by the dog to persons on her property
if the person was on the dog owner’s private property with the
express or implied invitation or consent of the owner.

Although California Civil Code section 3342 imposes liability
against the dog’s owner for its bites, this does not mean that
the dog’s owner cannot raise any defenses that may cut off or
reduce her liability. For instance, if the person was pulling the
dog’s tail, kicking it, or otherwise annoying it, which led to the
dog biting him, the person may be banned from recovery or the
amount of his recovery may be reduced under the legal doctrine
of “comparative negligence,” discussed in Chapter 2.

YOUNG CHILDREN AND DOGS

Young children are the most common victims of a dog bite.
Children are especially vulnerable to being bitten by dogs
because they don’t understand the danger involved when a
person approaches a dog, even if they have petted or played
with the dog before without incident. Almost 80 percent of
injuries to children bitten by a dog are to their face, neck, and
head. Even a small dog can inflict serious injuries on a defenseless
child. Note that, generally speaking, a child under the age
of five is considered by the law to be incapable of being comparatively
negligent. So if a child under five years old is bitten
or mauled by the dog, it is no defense that the child may have
been teasing the dog, pulling its tail, or otherwise harassing the
dog. Whether an older child is capable of understanding the
risks involved in approaching a dog, petting it, pulling its tail,
and so forth, is determined on a case-by-case basis.

INJURIES RESULTING FROM A DOG BITE

Dog bites can range from a superficial bite that does not break
the skin to a fatal mauling by the dog. Frequently the dog attacks
the victim’s face, inflicting severe and disfiguring injuries. The
dog may go after the arms and torso of a victim who is trying
to protect himself. In many cases, it will be necessary to get a
tetanus shot, and if the dog is not current with its rabies shots,
the dog will have to be quarantined until it can be tested. If the
dog is found to have rabies, the bite victim will have to undergo
a series of painful anti-rabies injections to ward off the disease.

PIT BULLS AND OTHER DANGEROUS BREEDS

Certain breeds, such as pit bulls, have acquired a reputation as
unusually aggressive and dangerous. In one study, the Centers
for Disease Control (CDC) found that pit bulls and Rottweilers
accounted for 67 percent of human dog-bite-related fatalities,
with pit bulls being responsible for the greater share of fatalities.
The term “pit bull” actually refers to several breeds of dog
in the same family. Most laws specifically define the category of
“pit bull” to include the American Pit Bull Terrier, the American
Staffordshire Terrier, and the Staffordshire Bull Terrier, and
dogs with significant mixes of these breeds. A few jurisdictions
also include the American Bulldog and Bull Terrier as falling
within the definition of a pit bull.

Pit bulls frequently attack without provocation or warning,
and the victim may be a family member as easily as it may be a
stranger. As a fighting breed, pit bull dogs were bred to conceal
warning signs before an attack. For instance, they rarely growl,
bare their teeth, or issue a stare before they strike. While some
pit bull proponents contend that they are only dangerous to
other animals, media reports show otherwise.

Some people take the view that the pit bull has a “locking
mechanism” in its teeth or jaw so that once the jaw clamps shut, it
is practically impossible to get the dog to release its prey. Pit bulls
often show “bite, hold, and shake” behavior when biting a person
or other animal. Accordingly, some pit bull rescue organizations
and advocacy groups recommend that owners of pit bulls carry
a “break stick” with them to lever the dog’s jaws open if the dog
does bite and clamp down on a person or another animal.

Some cities have passed laws prohibiting the ownership of pit
bulls and certain other dangerous breeds, such as Rottweilers
and Doberman Pinschers. Some laws prohibit these breeds
of dogs from going into certain public areas, and other laws
require that the dog be muzzled when out in public.

Accordingly, if you have been seriously injured or a loved
one killed by a dog belonging to one of these dangerous breeds,
the insurance company is more likely to settle the case and
to settle for a higher amount than if, say, a Collie or Springer
Spaniel inflicted the damage. (Generally speaking, the amount
of damage a Collie or Springer Spaniel can inflict pales in
comparison to what pit bulls, Rottweilers, hybrid wolves, and
Doberman Pinschers can do.) Also, because of the severe injuries
they can cause—such as serious damage to the face requiring
extensive reconstructive surgery—it is important that you
obtain a law firm with experience in dog bite cases to help
arrange that you get the best medical care possible for your
often disfiguring injuries. In severe maulings, plastic surgeon
and other medical expenses can run into tens, even hundreds
of thousands of dollars in reconstructive surgery, such as skin
grafting, tissue expansion, and scar diminishment.

LEASH LAWS

Let’s say that you are walking down the street and a playful
dog comes bounding toward you and jumps on you, knocking
you to the ground, causing a broken limb, or hip or head injuries.
Most cities and counties have laws requiring dogs to be on
leashes and under the control of their owner or walker when off
the owner’s or caretaker’s private property. The fact that this
is the first time the dog has ever done something like this is no
defense. The failure to have the dog on a leash, resulting in the
dog causing injury, is called in legal terms “negligence per se.”
It is not a defense to a violation of the leash law that the dog
is trained to obey verbal commands or hand signals. Nor is it
necessary for the victim to prove that the owner knew that her
dog had a propensity to run at large, chase bicycles, or jump on
strangers to hold her liable for injuries caused by her dog while
it was running loose throughout the neighborhood.

LIABILITY OF A LANDLORD FOR INJURIES FROM A TENANT’S DOG

A landlord generally is not liable for the injuries inflicted by his
tenants’ dogs (or other animals), unless the landlord has actual
knowledge of the presence of the tenant’s dog and its vicious
nature. If the landlord knows of the vicious propensities of the
dog and has the ability under the lease to order it removed or to
terminate the lease altogether, the landlord may be held liable
for allowing the dangerous dog to remain on the property without
doing anything about it. For instance, if the landlord knows
that a tenant on a month-to-month lease has a dangerous dog,
the landlord may be required to give the tenant notice either
to get rid of the dog or, if that fails, give the tenant notice of
termination of the lease.

THE “VETERINARIAN’S RULE”

A veterinarian, kennel operator, or her employees generally are
barred by the “veterinarian’s rule” from suing the owner of a
dog for bites or other injuries inflicted by a dog while under
their care. According to the veterinarian’s rule, a veterinarian
or other person who by his profession works with dogs and
other animals is held to have assumed the risk that he may be
bitten or otherwise harmed by the animal.

Every working day, millions of Americans who work in buildings
that have multiple floors take elevators to get to and from
their offices. Many apartment, condominium, and co-op residents
use elevators to get to and from their units. And every
day, countless Americans ride escalators to transport them
from floor to floor inside retail department stores and malls.
There are approximately 600,000 elevators in the United
States and 120 billion rides on elevators and escalators each
year. There are 20 times more elevators than escalators in the
United States, but the numbers of persons injured and killed by
the two modes of transportation are about equal. This means
that you are 20 times more likely to have an accident on an
escalator as compared to an elevator.

ELEVATORS AND ESCALATORS AS “COMMON CARRIERS”

In California, it is well established that commercial operators
of elevators and escalators are “carriers of persons for reward.”
This means that elevators and escalators are “common carriers.”
As a common carrier, the owner and/or operator of an
elevator or escalator has a higher standard of safety and care,
and can be held financially responsible (“liable”) to passengers
who have been injured by even the slightest amount of carelessness
(“negligence”). The California Supreme Court stated
that a higher standard applies to all persons who submit their
bodies to another’s control by which their lives or limbs are put
at hazard.

California Civil Code section 2100 requires a carrier of persons
for reward (a “common carrier,” including commercial
elevators and escalators) to 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 section 2101 requires a common carrier of
persons to provide vehicles safe and fit for the purpose to which
they are put, and the common carrier is not excused for default
in this respect by any degree of care. Accordingly, an elevator
car or escalator must be in “safe and fit” order to safely transport
its passengers.

California law requires a common carrier to use the “utmost
care and diligence” for the safe carriage of its passengers. The
owner/operator of an elevator or escalator is bound to use the
utmost care and diligence that a very cautious person would, as
far as human care and foresight can go, and they are responsible
for injuries resulting from the slightest neglect against
which human care and foresight might have guarded. Common
carriers are not, however, insurers of their passengers’ safety.
An “insurer” of a person’s safety is liable for all injuries and
deaths arising from its acts or neglect, even if it was not negligent
in any way; it guarantees that the person will not be hurt,
regardless of the cause of those injuries. In cases involving
common carriers such as elevators and escalators, it is necessary
to prove that the owner/operator was negligent in some
manner. This is true despite the fact that the owner/operator
of the device is bound to the standard of the utmost care and
diligence, and even the slightest carelessness would be enough
to impose liability.

An elevator or escalator owner/operator is a common carrier
only in regards to individuals who are using the elevator
or escalator for the purpose of transportation at the time of
the injury. For instance, children who are playing at the top or
bottom of an escalator, and not intending to ride the escalator,
do not get the benefit of the common carrier higher standard
of care. This does not mean, however, that the owner/operator
of the elevator or escalator does not owe any degree of due
care toward the child. In such case, the owner/operator still
owes the child the duty to exercise reasonable care, that is, the
standard of care owed under general negligence principles, to
keep the premises reasonably safe.

The owner/operator of the elevator or escalator may have
a duty to protect children playing on the elevator or escalator,
particularly when the owner/operator knows that other
children have played on the elevator or escalator in much the
same way while those who should have been watching them
were busy shopping. Because the owner/operator knows or
could anticipate that young children would play on or around
the elevator or escalator, the owner/operator has a duty to take
reasonable steps to prevent those children from being injured
or killed by the elevator or escalator.

PASSENGER CONSIDERATIONS

If a person is in the process of getting on or off an elevator car
or escalator, she is considered a passenger even though she
may not be physically in the car or on the steps of the escalator.
A person is considered a passenger until she has safely
gotten off the elevator or escalator in a relatively safe place.
The responsibility of the owner/operator of the elevator or
escalator to its passengers continues until the passengers have
had sufficient time to get away from the elevator or escalator
without injury.

A passenger’s motive for using the elevator or escalator is
irrelevant in determining the common carrier’s liability, and
the common carrier owes the same high duty of care whether
the passenger rode for pleasure or business. So if a passenger is
injured by an elevator that she was taking for the sole purpose
of getting to the top of a skyscraper to enjoy the view, and did
not intend to transact any business in the building, she is no
less entitled to a safe elevator than one who uses the elevator
to get to an office to conduct business. Similarly, a department
store visitor who is injured by a defective and dangerous escalator
while “just looking” is owed the same high duty of care as
a person who goes to the store with the intent of purchasing an
item.

ELEVATOR INJURIES

Many elevator-related injuries occur when people are getting
off the elevator and the bottom of the elevator is not flush with
the outside floor. Sometimes the difference between the bottom
of the elevator and the outside floor is a foot or more. More frequently,
however, “trip and fall” injuries result when the floor
of the elevator stops short of or overshoots the floor by as little
as one or two inches. This can result in the person’s foot being
tripped by the uneven lip between the elevator floor and the
outside surface, causing the person to fall and suffer serious
injuries, such as a broken leg, arm, or hip, or hitting his face on
the ground causing broken bones and disfiguring injuries, or
striking his head on the ground, resulting in a traumatic brain
injury (TBI).

Hand, forearm, foot, and lower limb injuries can occur when
a person attempts to stop the elevator’s doors from closing so
he can board the elevator car. The doors may be closing too
quickly or too forcefully, causing injury. Occasionally an elevator
cable will break, causing the elevator to drop to ground
level in a free-fall, seriously injuring or killing the passengers.
Modern elevators are usually equipped with a safety brake
system to prevent this from happening, but the safety brake
system has been known to fail, resulting in catastrophic, even
fatal, injuries.

Many elevator accidents occur on construction sites when
workers are traveling from floor to floor. If the worker’s
employer installed the elevator and is the one in charge of servicing
and maintaining it in a safe condition and the worker
is injured in an elevator accident, the worker’s sole remedy is
usually worker’s compensation benefits. But if another company
(i.e., a subcontractor) installed the elevator and has the
duty of maintaining it in a safe condition, the worker injured
by a defective and dangerous elevator may be able to sue the
elevator company.

ESCALATOR ACCIDENTS

It has been estimated that as few as 15 percent of escalator accidents
are the result of “unsafe acts.” The majority of accidents
are caused by worn, damaged, or faulty equipment, many of
which could be avoided with proper inspection, servicing, and
maintenance. Unlike, say, a car, the mechanical workings of
an elevator and escalator rolls are not easily accessible. This
means that less effective techniques are often used instead of
physical inspection. As a result, reliability is reduced and the
potential for accidents is greatly increased.

Ordinarily, a passenger on an escalator stands and does not
sit on the steps. When one considers, however, the enormous
numbers of patrons of stores that use escalators as a means of
transportation, one must conclude that occasionally someone
will fall and her hand must rest upon the tread of the step either
for a very brief time or for almost the whole descent, depending
upon the force of the fall, the ability of the person to recover her
balance, her ability in regaining her position, and similar factors.
Children use escalators in great numbers, and their hands
may be on the treads even though they have not fallen.
A department store, for example, invites not only people who
are alert and nimble and adult to use its escalators, but all of
its patrons, with the possible exception of those patrons whose
age and infirmity would make any use or moving stairs hazardous.
Under the duty to use utmost care required of a common
carrier, the escalator must be constructed, maintained, and
operated with the purpose and design to prevent injury to those
whose hands do get into the treads.

Not surprisingly, a large number of the people who are
injured while riding an escalator are young children. Young
children do not have the same stability as adults and are especially
vulnerable to falling and being injured at the slightest
bump or shake of the escalator. Young children are frequently
fascinated by the movement of the stairs and will attempt to
put their fingers or hands between the moving stairs and the
stationary rail. Young children also have a harder time getting
on and off and escalator, often falling in the process and being
injured.

Children under the age of five are exempt from the rule
of “comparative negligence,” as a child of such early years is
legally incapable of realizing and understanding that his conduct
may result in his being injured by the elevator or escalator
on which he is riding or playing. In short, the young child does
not appreciate the nature and extent of the danger and voluntarily
encounters it without regard for his own safety.

Unlike an elevator, which has doors separating the moving
car and its passengers from the stationary shaft, an escalator
must move alongside a stationary balustrade. It is important
that openings (“apertures”) between treads and risers, and
between steps and balustrades, be kept to a minimum in order
to prevent a rider’s hand from being caught between them.

LIABILITIES, MAINTENANCE AND INSPECTIONS

There are maintenance companies that service, maintain, and
inspect elevators or escalators to ensure that they are operating
properly and are free of conditions that might pose a hazard
to persons using the elevators or escalators. Such a company
can be held liable for injuries resulting from its negligence in
inspecting, maintaining, and servicing an elevator or escalator.
If the owner or operator fails to have the elevator or escalator
regularly inspected for dangerous conditions, she can be held
liable for injuries to or death of persons using the elevator or
escalator that are caused by the unsafe condition of the elevator
or escalator.

DUTY TO NON-PASSENGERS

As noted above, it is well settled in California law that commercial
elevators and escalators are “common carriers” and owe a
higher duty of care towards their passengers than is ordinarily
required. However, as to persons not on an elevator or escalator,
nor in the process of getting on or off, the owner and/or
operator owes them only the ordinary standard of safety (“due
care”). Thus, if a part of an escalator broke off and was thrown
20 feet, hitting a shopper, the legal and financial responsibility
(“liability”) to that person would be determined using ordinary
rules of negligence law, and not the higher duty owed by
common carriers, as the person was not a passenger on the
escalator at the time of the incident.

SUING THE MANUFACTURER OF THE ELEVATOR OR ESCALATOR

If the elevator or escalator was defective because it was not
properly made or designed, and a person is injured or killed
due to that defect, the injured person (or the next of kin, if
the person was killed) has the right to bring a strict products
liability lawsuit against the manufacturer, supplier, owner, and
operator of the elevator or escalator. Strict products liability
law does not require that the injured person prove that the
manufacturer or other person had failed to use due care (was
“negligent”) in designing or making the elevator or escalator.
All that needs to be proved is that the elevator or escalator was
made or designed defectively and that defect was a cause of the
person’s injury. There is no requirement that a specific act of
carelessness (negligence) be shown. For further information
about suing an elevator or escalator manufacturer, distributor,
or seller, see Chapter 21, “Defective Products.”

Tens of thousands of people are injured each year in “slip and
fall” or “trip and fall” injuries. The injury may take place inside
a grocery store, when a patron slips on a fruit or vegetable that
has fallen out of its bin. Or the owner or manager of the store
may have failed to put up a “Caution Wet Floor” sign where
an employee has just cleaned the floor but it is still slippery
and presents an unreasonable danger to customers, or employees
failed to conduct and document regular “floor sweeps” to
ensure that nothing is in the aisle that could pose a danger to
customers.

“NOTICE” OF DANGEROUS CONDITION

A landowner or business operator must know or should have
known of the dangerous condition on his land to be held liable.
This is known in legalese as “notice.” The notice may be either
“actual”—the owner or an employee either created the dangerous
condition or saw it or was informed of it by other people
before the victim’s fall—or it may be “constructive”—that is,
that it existed long enough that the reasonably careful owner
would have discovered it and taken steps to warn of or remove
the danger. The victim has the burden of proving that the landowner
had actual or constructive notice of the dangerous condition,
and had sufficient time either to warn of its existence or
eliminate the danger prior to the victim’s slip or trip and fall.

The requirement of notice can be proved by direct evidence,
such as the owner or an employee having created the danger
or the testimony of other persons that they, too, had slipped or
tripped, or, even though they did not slip or trip themselves,
had notified the owner of the danger. Or the existence of the
dangerous condition can be proved by circumstantial evidence,
such as by a lack of the owner to have any sweep log or other
evidence that the area was inspected for dangerous conditions
in time for the owner to take remedial action to prevent injury
to the victim.

Each case must be determined by its own unique circumstances;
there is no hard and fast rule imposing exact time
limitations. If the injured victim can show that the owner or an
employee did not make an inspection of the area within a time
period that was reasonable under the circumstances, an inference
arises that the dangerous condition existed long enough
that the failure to discover it was not reasonable. It is ordinarily
a question of fact for the jury whether, under all the circumstances,
the defective condition existed long enough that
it would have been discovered by an owner or employee who
exercised due care.

The exact length of time the dangerous condition must exist
before it should, in the exercise of reasonable care, have been
discovered and remedied, is not fixed and varies according to
the circumstances. A person operating a grocery store, in the
exercise of ordinary care, must use a more vigilant outlook than
the operator of some other types of business where the danger
of things falling to the floor is not so obvious.

The failure to inspect the premises within a reasonable
amount of time before the accident gives rise to an inference
that the defective condition lasted long enough to have been
discovered and remedied. Allowing this inference does not
change the rule that if a store owner has taken care in the discharge
of his duty by inspecting its premises in a reasonable
manner, then no breach will be found even if a person does
suffer an injury. Many larger stores have a “sweep log” that
requires an employee to inspect the aisles regularly for dangerous
conditions and then sign the log stating the time the area
was inspected and that no dangerous conditions were observed
or, if there was a dangerous condition, that corrective measures
were promptly taken.

TRIVIAL DEFECTS

When a person has been injured because she tripped and fell
due to, say, a ridge created by uneven pavement or flooring,
the landowner or business operator will frequently claim that
the defect was trivial and he should not be held accountable for
such a small hazard. The “trivial defect” defense is most frequently
raised in trips and falls due to uneven surfaces in sidewalks
and floors. The courts recognize that a landowner cannot
be held legally responsible (“liable”) for every minor imperfection
on his property, even if the landowner knows of the defect.
Accordingly, the courts apply the legal rule that it is impossible
for a landowner to maintain heavily traveled surfaces in perfect
condition and minor defects such as differences in elevation are
bound to occur despite the use of due care by the landowner.

In determining whether a defect is trivial as a matter of law,
the court must consider all of the circumstances. The mere size
of the danger, ledge, or depression should not be considered
in a vacuum. The court must determine whether there were
any circumstances surrounding the accident that might have
made the defect more dangerous than its mere depth. The court
must look at the intrinsic nature and quality of the defect to see
if, for instance, it consists of mere nonalignment of two horizontal
slabs or whether it consists of a jagged and deep hole.
Also, a defective condition that may be apparent during the day
might be considered dangerous at night without proper lighting.
Evidence that other people slipped or tripped on the same
defect may be important to establish that the condition was
in fact dangerous and that the landowner knew of the danger
before the victim slipped or tripped and fell and was injured.

Defects that have been found to be trivial as a matter of law
include: (1) a metal strip that protruded some one-eighth of an
inch from a building’s marble floor, (2) a quarter of an inch
hole with a two-inch diameter in a chipped tile floor, and (3)
ridges in a floor of one-half of an inch, three- fourths of an inch,
seven-eighths of an inch, one inch, and one-and-a-half inches
in height.

Defects that have been found to be a question for the jury to
decide whether or not they were trivial include: (1) a quarterof-an-inch
piece of reinforcing steel (rebar) protruding from
the top of a concrete tire stop, (2) a one-and-a-half inch depression
in the sidewalk, (3) a five-inch pothole that extended to
two feet when the victim fell, (4) a chuckhole two to six inches
deep, (5) a hole two inches deep and ten inches square containing
oil and grease, (6) a hole nine to eleven inches long, four to
six inches wide, and two to three-and-a-half inches deep, (7) a
six to eight inch puddle of syrup on a store floor, (8) a hole in
a sidewalk five inches long, two inches wide, and up to three
inches deep, (9) a ridge raised two inches above the sidewalk,
and (10) a hole in a sidewalk twelve inches long, three inches
wide, and two inches deep.

The seriousness of a defect is not determined by a tape measure
alone. Any and all circumstances surrounding the accident
which might have made the defect more dangerous than its
mere size are taken into consideration. Among the factors taken
into consideration include: (1) how long the defect has existed,
(2) whether the view of the defect was obstructed in any way,
(3) whether the accident occurred at night in an unlighted area,
(4) whether other persons were injured by the defect, and (5)
whether someone else had notified the owner, manager, or an
employee of the defect and a reasonable amount of time to fix
or remove the defect had passed.

WHERE A DANGEROUS CONDITION IS OBVIOUS

There is a defense that is often raised in slip and fall cases. This
argument is that the danger was obvious, and that the accident
and injury were the victim’s own fault because he wasn’t watching
out for his safety. The fact that a danger was obvious often
is not, in and of itself, a sufficient basis for relieving the landowner
or business owner of her duty to keep her premises in
a reasonably safe condition. The dangerous condition must be
considered in light of all of the circumstances.

For example, a store may place its displays and signs of sales
at eye level or higher to capture the shoppers’ attention. Such
signs and displays are designed to catch the eye of the shopper
and take her eyes off the floor in front of her while walking.

Even when the victim was partially at fault for failing to
notice an obvious danger, this does not necessarily mean that
he cannot hold the landowner legally responsible for some of
his injuries. Applying the legal doctrine of “comparative negligence,”
the fault of the victim is weighed against (compared to)
the fault of the landowner. For instance, if the landowner was
60 percent at fault for allowing the dangerous condition to exist
on her property and the victim was 40 percent at fault for not
noticing the obvious danger, then the amount of the victim’s
recovery is reduced by 40 percent. Hence, if a jury awarded the
victim $100,000 but found he was 40 percent responsible for the accident for failing to see the
obvious danger, then the victim’s award would be reduced by
the percent of his fault (in this case, 40 percent); so, instead
of receiving the full $100,000, the victim would receive only
$60,000.

TYPES OF INJURIES/WORKING WITH AN ATTORNEY

If you have been injured in a slip and fall or a trip and fall
incident, sometimes your injuries will be obvious, such as a
broken arm or head injury. However, it is not at all unusual
for injuries to take a few days to a few weeks to show up. You
should contact an experienced personal injury law firm as soon
as possible. The attorney often will want to send his investigator
to the scene of the accident to inspect and take pictures of
the dangerous condition, if it still exists.

The attorney or his investigator will also want to talk to any
witnesses to the fall while the facts are still fresh in their minds.
The attorney can also help with seeing to it that you receive a
thorough physical and mental examination and treatment for
any injuries resulting from the accident.

Over 12.5 million boats of every size, description, and intended
use are registered in the United States. They range from 8-foot
handmade sailboats to 16-foot ski boats to 30-foot cabin cruisers
to 36-foot sailboats to 100-foot and longer luxury yachts.
A day of sun and fun through boating at the river, lake, bay,
or ocean can quickly turn into disaster due to an accident that
results in serious injury or even death to persons in or out of
the boat.

Especially on warm summer days and long weekends,
California’s waterways become crowded with all types of watercraft
(“vessels”), with operators having experience ranging
from years of boating to first-timers who just bought a boat and
paid scant attention to how to properly and safely operate the
vessel. Statistically, your chances of being injured or killed in a
boating accident are highest on a Saturday or Sunday in July,
between the hours of 12:30 p.m. and 6:30 p.m.

Besides the various types of traditional boats, there are
the personal watercraft (PWC), such as Jet Skis and the like,
inflatable boats and rafts, pontoon boats, houseboats, speedboats,
and airboats. The vessels are used for a variety of different
pastimes, from fishing to skiing to pleasure cruising to
around-the-world sailing to racing to white-water rafting and
more.

Approximately 3,500 reported injuries and 700 reported
deaths occur each year due to boating-related accidents. (The
numbers of actual deaths and injuries related to boating accidents
may be underreported because of the owner/operator’s
failure to know of reporting requirements, discussed below.)
Injuries due to boat accidents can come from a variety of
sources: (1) death by drowning, (2) brain damage caused by
lack of oxygen due to submersion in the water, (3) severe traumatic
bodily injuries inflicted by an unguarded propeller, (4)
colliding with another vessel or fixed object, such as a bridge
trestle, (5) being run over by a boat or struck by a PWC, or (6)
the inhalation of a lethal level of carbon monoxide, to name a
few. Alcohol use is the leading contributing factor in fatal boating
accidents, accounting for nearly 20 percent of all reported
fatalities.

Approximately two-thirds of boat-related fatalities are due
to drowning. 80 percent of all drownings and other deaths in
boat-related fatalities involved boats less than 26 feet long. 90
percent of the victims who have drowned in a boating accident
were not wearing a lifejacket at the time of the incident. It is
the boat owner/operator’s duty to see to it that all passengers
are correctly wearing proper-fitting lifejackets. The operator of
the boat has a duty to see that there are a sufficient number of
lifejackets for each and every passenger.

Most boating accidents are due to operator carelessness
(“negligence”). Open boats without a cabin or skiffs are the
most common type of boat to be involved in an accident.
Personal watercraft (PWC) are the second most common type
of water vehicle involved in accidents, followed by open boats
with a cabin.

TYPES & CAUSES OF BOATING ACCIDENTS

The top five types of boating accidents are:

  • Collision with another vessel
  • Collision with a fixed object
  • Skier mishap
  • Falls overboard
  • Capsizing

Many, if not most, boating accidents could be prevented by a
skilled, attentive boat operator. In fact, most boating accidents
are caused by the operator’s negligence. Some of the most frequent
operator-controllable causes of or contributors to boating-related
accidents are: (1) operator inattention, (2) carelessness
or recklessness of the operator, (3) operator inexperience,
(4) excessive speed, (5) no proper outlook when towing a skier,
(6) towing a person in an inner tube, (7) other person, (8) alcohol
or drug use, (9) making a sharp turn; (10) overloading the
vessel, and (11) violating the “rules of the road.”

Other conditions may not be under the operator’s control,
but nonetheless may give rise to a lawsuit for negligence against
the boat’s owner/operator. For instance, the operator of the
boat may have no control over angry seas, but taking the boat
out in hazardous waters or during foul weather may constitute
negligence and subject the owner/operator to a negligence
lawsuit if the boat were to capsize and the passengers became
injured or died.

The operator of a boat is legally required to know the “rules
of the road” and how to operate the boat safely so as not to pose
an unreasonable risk of danger both to persons in and out of
the boat. The owner can be held legally responsible (“liable”)
for all injuries and deaths caused by another person the owner
lets operate the boat without ensuring that the person has
experience with and is reasonably skilled at operating the kind
of vessel in question and is not impaired by alcohol or drugs.
Seventy percent of reported boating-related fatalities occurred
on boats where the operator had not received boating safety
instruction. The lowest number of fatalities and injuries occurs
among operators who have taken a course of instruction in boat
safety by the United States Coast Guard Auxiliary.

DUTY TO INSPECT BOAT REGULARLY

In addition to knowing how to operate the vessel safely, the
owner/operator must inspect the boat regularly to ensure
that it is in good shape for the purpose for which it is going to
be used, i.e., that the boat is seaworthy. For instance, for an
18-foot ski boat, the operator must inspect the hull, the steering
mechanism, the throttle, and other parts of the boat to ensure
they are in good working order.

In the case of a boat that will be towing skiers, inner tubes,
other boats, and such, special attention should be given to the
cleats to which the tow line is going to be attached. The boat
operator will want to make sure that the cleats are securely
anchored and do not pose a danger of coming loose and hitting
someone in the boat or the skier or boat being towed. In
motorboats, the operator must also check the fuel tank, engine,
and other moving parts to ensure that they are in good working
order and not likely to fail or cause a fire or other untoward
event.

REPORTING BOAT INJURIES/DEATHS

Boat operators are required to report their accidents to authorities
in the jurisdiction where the accident occurred. The report
must be made within 48 hours of an occurrence if: (1) a person
dies within 24 hours of the occurrence; (2) a person requires
medical treatment beyond first aid; or (3) a person disappears
from the vessel. If the only damage is to the vessels and/or
property and it is $2,000 or more, or there is a complete loss of
any vessel, the incident must be reported within 10 days of the
occurrence. The owner is required to submit the report when
the operator cannot. Note that the above minimum reporting
requirements are set by federal regulations; individual states
are free to impose stricter standards.

INSURANCE CONCERNS

If you own a boat, personal watercraft (PWC), or other vessel
or watercraft, you should check with your insurance agent to
make sure your vessel is adequately covered. See if the limits
of your insurance are adequate to protect you in the event that
injuries are catastrophic or the incident involves a death. If you
don’t have adequate insurance coverage on your watercraft,
and if you or someone else operating your vessel cause injury
or death to a third party, that person (or their heirs in the case
of a deceased person) may be able to go after your personal
assets, including your home and savings, to satisfy any monetary
judgment a jury may have awarded. Even if the jury finds
in your favor, without insurance it still will cost you thousands
of dollars in lawyers’ fees to defend the case.

According to the National Highway Transportation Safety
Administration (NHTSA), a pedestrian is injured every eight minutes
by a motor vehicle (approximately 64,000 people a year), and
about 4,500 pedestrians are killed each year when hit by a moving
vehicle. There are a number of reasons why pedestrians are struck
by vehicles: speeding, driving under the influence of alcohol and/
or drugs, improperly placed traffic signs, faulty traffic lights, and
dangerous road conditions can all cause automobile-pedestrian
encounters. But the number one cause of pedestrians being struck
by a motor vehicle is driver inattentiveness. Other causes include
disregarding a crosswalk, disregarding a traffic signal, disregarding
a pedestrian already crossing the roadway, and failing to stop
for a school bus that is flashing its red lights.

WHEN AND WHERE DO PEDESTRIAN
ACCIDENTS OCCUR?

Crashes involving a motor vehicle and a pedestrian are highest
among five-to nine-year-old boys, who tend to dart into the street.
Accidents involving elder pedestrians (age 65 and up) are lower
than most age groups, but older pedestrians are more likely to be
severely injured or killed in a collision than younger victims. For
instance, the percentage of pedestrian crashes resulting in death
exceeds 20 percent for pedestrians over 75, compared to less than
8 percent for pedestrians under the age of 14. The vast majority
of non-fatal crashes (86 percent) occur in urban areas, but the
number of pedestrians killed on rural roads is double the rate of
non-fatal rural crashes. The reason for this disparity is thought
to be higher rural speed limits and a lack of sidewalks, paths, or
shoulders to serve as separated pedestrian walkways.

Sixty-five percent of accidents involving pedestrians occur at
non-intersections. This is especially true for pedestrians under
age nine, primarily due to their darting out into the street. For
ages 45 to 65, pedestrian accidents are approximately equal for
intersections and non-intersections. Pedestrians 65 and over
are more likely to be injured or killed while crossing the street
in a crosswalk.

Pedestrian crashes are most frequent during morning and
afternoon peak periods, when the volume of traffic is at its
highest. Fatal pedestrian crashes often peak later in the day,
between 5:00 and 11:00 p.m., when darkness and alcohol use
are factors. Nearly one-half of all pedestrian fatalities take
place on Friday, Saturday, and Sunday. Older persons are more
likely to be involved in a crash during the daylight hours. The
highest number of pedestrian fatalities occurs from September
through January, when there are fewer daylight hours and
more inclement weather. Child pedestrian fatalities are greatest
in May, June, and July, thought to be due to the increase in
the children’s outdoor activities.

CROSSING THE STREET

Pedestrians have the right of way while crossing the street in a
crosswalk. The crosswalk may be marked with paint, or it may
be an unmarked crosswalk where two roads come together.
However, when a pedestrian is crossing the street in the middle
of the block and there is no crosswalk, this does not make the
pedestrian open game to motor vehicles. The vehicle operator
must still use “due care” to avoid hitting the pedestrian.

Of course, when a pedestrian attempts to cross the street
outside of a crosswalk, she may bear some of the blame for the
accident and the amount of her recovery will be diminished
accordingly under the doctrine of “comparative negligence.”
In some cases, the pedestrian’s failure to cross the street at a
crosswalk is the sole cause of the accident, in which case the
pedestrian would not be entitled to any compensation.

A pedestrian should always be alert to her surroundings and
nearby traffic. If there is a sidewalk, the pedestrian should use it
rather than walking in the road. If there is no sidewalk, then the
pedestrian should walk on the side facing traffic. The pedestrian
should also wear brightly colored clothes when walking on the
edge of a road to make herself more visible to passing traffic.

INJURIES TO THE PEDESTRIAN

Because of the weight disparity between a human being weighing
one to two hundred pounds and a motor vehicle weighing
several tons, it is easy to see that, even in a slight accident, the
pedestrian can be severely injured, even killed. The pedestrian
may suffer broken legs or arms or serious internal injuries due
to the impact. The pedestrian may suffer a spinal cord injury
that leaves her a quadriplegic or paraplegic.

If the pedestrian is thrown to the ground, she may suffer
serious traumatic brain injuries. If the pedestrian is dragged
until the car comes to a stop, the pedestrian may suffer serious
friction burns to her body. Of course, when a moving motor
vehicle strikes a pedestrian, there is always the risk that the
pedestrian will be killed due to the injuries suffered in the collision.
The deceased victim’s legal heirs have the right to sue
the careless (“negligent”) driver for the wrongful death of their
loved one.

Millions of Americans ride billions of miles each year on bicycles
of every type and description. Some commute to and from
work on a bicycle; others ride street bikes for exercise or competitively;
while still others love the thrill of off-road riding.
Approximately 540,000 bicyclists make visits to the emergency
room each year. About 67,000 of them have head injuries, even
though they may have been wearing a helmet at the time of
the accident, and 27,000 suffer from conditions that are serious
enough to require hospitalization. 43,000 bicyclists are
injured or killed each year in bicycle-motor vehicle collisions.
Only 8 percent of bicyclists ride the wrong way on a road, but
this accounts for 25 percent of motor vehicle-bicycle accidents.
Seventeen percent of accidents involve bicyclists who have run
stop signs or red lights.

Bicyclist fatalities occur more frequently: (1) in urban areas
(66 percent), (2) at non-intersection locations (67 percent), (3)
between the hours of 5:00 p.m. and 9:00 p.m. (30 percent), and
(4) during the months of June, July, and August (36 percent).
More than 90 percent of all bicycle-related fatalities involve a
collision between the bike and a motor vehicle. In fact, the first
documented car crash involved an automobile-bicycle collision
in New York in 1896.

When a bicyclist gets into an accident with a motor vehicle,
the bicyclist usually suffers severe injuries, if she is not killed.
A 150-pound person is no match for a moving vehicle weighing
several thousand pounds or more. If you survive such an
accident, you may suffer broken bones, such as in your arms,
legs, pelvis, or ribs, or severe internal injuries. You may even
break your neck (quadriplegia) or your back (paraplegia). You
may also suffer a traumatic brain injury (TBI) when your head
hits the pavement or other surface, even if you were wearing a
helmet at the time of the accident. In addition, you may receive
severe friction burns to your body by being dragged by the car.
You could suffer from significant scarring or disfigurement.

RULES OF THE ROAD

Bicyclists are generally bound to follow the rules of the road the
same as motor vehicles. The California Vehicle Code requires
that a person riding a bicycle at a speed less than the normal
speed of traffic moving in the same direction must ride the
bicycle as close as practicable to the right-hand curb or edge
of the roadway, except: (1) when passing another bicyclist or
vehicle, (2) when preparing to make a left turn at an intersection
or into a private road or driveway, (3) when it is unsafe to
do so, or (4) when approaching a place where a right turn is
permitted. Likewise, when the road has a bike lane, the bicyclist
must ride in that lane subject to the exceptions to riding at
the right-hand side of the road.

A bicycle rider or passenger must sit on a permanent and
regular seat attached to the bike. Riding on the handlebars,
for example, is prohibited. If a passenger is four years old or
younger, or weighs 40 pounds or less, the seat must have proper
restraints to keep the youngster in place and to protect him
from the moving parts of the bicycle. Minors—persons under
the age of 18—may not ride a bicycle, non-motorized scooter, or
a skateboard, nor may they wear in-line or roller skates, upon
a street or roadway or any bike path or trail, unless the minor
is wearing a properly fitted and fastened bicycle helmet that
meets appropriate standards. This includes young children
who ride on a bicycle in a restraining seat that is attached to
the bicycle or in a trailer towed by the bicycle.

A person may not drive a motor vehicle in a bike lane except:
(1) to park where parking is permitted, (2) to enter or leave the
roadway, or (3) to prepare for a turn within 200 feet from the
intersection. A person may not stop, stand, sit, or loiter upon a
bike path or trail if such action impedes or blocks the normal
and reasonable movement of bicyclists using the bike path or
trail. When a bicyclist is traveling upon a one-way street with
two or more marked traffic lanes, the bicyclist may ride as near
the left-hand curb or roadway edge as is practicable. It is illegal
to ride a bicycle upon a highway or sidewalk while the bicyclist
is under the influence of alcohol or drugs.

CAUSES OF VEHICLE-BICYCLE ACCIDENTS

The leading causes of motor vehicle-bicycle accidents involve
the motor vehicle driver’s failure to use turn signals, see the
bicyclist, or yield the right-of-way to the bicyclist when the
motorist is making a turn at an intersection, onto a side street,
or into a private driveway. Vehicle-bicycle accidents also commonly
occur when the vehicle driver parallel parks on the side
of the road and then swings the driver’s door open without first
looking to see whether any bicyclists are approaching. Likewise,
pulling into traffic without checking for oncoming bicyclists is
another major cause of vehicle-bicycle accidents. Other causes
of bicycle accidents include: (1) hazardous road conditions,
such as potholes, sand, and gravel; (2) road construction; (3)
jaywalking pedestrians; (4) defects in the design or manufacture
of the bike or equipment (such as in the bike’s frame or
helmet); or (5) faulty repairs by a repair shop.

If you or a loved one have been injured or a loved one was
killed by a negligent driver or through other causes while riding
a bicycle, it is critical that you don’t throw away or otherwise
dispose of the bike; it may be a crucial piece of evidence. It can
show how the accident happened, and the bicycle would also be
needed if it is claimed that the bike was defective.

ACCIDENTS AT NIGHT

Many bicycle accidents occur at night, when the bicycle rider
is not readily visible to the driver of a motor vehicle. When a
person is riding a bicycle at night, the bicycle must be equipped
with appropriate front and rear lights and reflectors that can
be seen by oncoming vehicles or vehicles approaching from
the rear or side. The California Vehicle Code requires that,
when operating a bicycle in the darkness, the bicycle must be
equipped with all of the following:

  • A front light that emits a white beam which, while the
    bicycle is in motion, illuminates the highway, sidewalk,
    or bikeway in front of the bicyclist and is visible from 300
    feet in front and from the sides of the bicycle.
    Note: Instead of having a front light attached to the bicycle, the
    driver may wear a lamp or lamp combination that emits a white
    light that can be seen from a distance of 300 feet in front and to the
    side of the bicycle.
  • A red reflector on the back that can be seen from 500 feet
    to the rear when the bike is directly in front of lawful high
    beams of a motor vehicle
  • A white or yellow reflector on each pedal, shoe, or ankle
    visible from the front and rear of the bicycle from a distance
    of 200 feet
  • A white or yellow reflector on each side forward of the
    bike’s center, and a white or red reflector on each side
    of the rear of the center of the bicycle, unless the bike is
    equipped with reflectorized tires on the front and rear.

BICYCLE RACES AND EXPRESS RELEASES OF LIABILITY

Bicycle riders who participate in races are usually required to
sign an express waiver of release of liability stating that they
will not sue the owners, operators, sponsors, or promoters
of the race if they are injured in the race. Will these types of
releases hold up in court? If the release was valid and effective,
you won’t be able to sue the sponsors and others involved in
putting on the race for your injuries. To be effective, a release
must be a clear and unequivocal waiver of harm or death with
specific reference to the defendant’s negligence. A contract of
release from negligence must be in clear, explicit, and comprehensible
language, free of ambiguity or obscurity. It must
clearly inform the releasor, as an ordinary person untrained in
the law, that he is releasing the other party from liability for the
releasor’s personal injuries caused by the releasee’s negligence.

The words releasing the defendant from liability must not
be disguised in complicated legalese, but must be written in
simple, clear, and unambiguous language understandable to
the ordinary lay person. The release must be drafted so as to
clearly notify the releasor of the effect of signing the agreement.
The release must not be contrary to “public policy,” which
generally prohibits the defendant from releasing herself for
conduct that constitutes aggravated or “gross” negligence, or
intentional wrongful conduct.

Suppose that, instead of being injured, the person who
signed the release is killed in the bike race. Does the release
bar the rider’s heirs from recovering for their damages?
Probably. When a person signs a valid release that would have
barred a lawsuit against the wrongdoer had that person lived,
the person’s survivors are similarly barred from bringing a
wrongful death action if the risk that took the person’s life was
encompassed by a legally viable release.

Motorcycles make up more than 3 percent—over 6.5 million—
of all registered vehicles in the United States. There are almost
twice as many motorcycles registered today as there were 10
years ago. Per vehicle mile traveled, motorcyclists are about
37 times more likely than passenger car occupants to die in a
motor vehicle crash and eight times more likely to be injured.

CAUSES OF MOTORCYCLE ACCIDENTS

Approximately three-fourths of motorcycle accidents involve
a collision with another vehicle, usually a passenger car. In
two-thirds of such accidents, the passenger car driver violated
the motorcyclist’s right of way. The most frequent passenger
car-motorcycle collisions involve the motorcycle proceeding
straight through an intersection and the passenger car making
a left turn in front of the oncoming motorcycle.

In motorcycle accidents involving another vehicle, 27
percent of all fatally injured motorcycle operators had blood
alcohol contents (BAC) of .08 percent (the national and state
standard for drunk driving). Forty-one percent of motorcycle
drivers who died in single-vehicle crashes had BAC levels of .08
percent or higher. Motorcycle drivers killed in traffic collisions
at night were more than three times more likely to have BAC
levels of .08 percent or higher than those killed during the day.
Seventy-two percent of the fatalities in the operator age group
of 40-49 involved alcohol. Almost half of all fatal motorcycleinvolved
accidents have alcohol involvement.

The highest number of motorcycle fatalities involves people
in the 20-29 age group, many of whom ride the “supersports”
type of motorcycles: sleek and powerful machines that can
reach speeds of 190 mph. Speeding is a main or contributing
factor in many cases involving fatalities and injuries among
this sector of the motorcycle riding population. The percentage
of riders aged 40 and above who get injured or killed in a
motorcycle accident has been increasing significantly in the last
10 years, and the number of deaths among this group is catching
up to the 20-29 age group. Motorcycle accidents involving
larger motorcycles with bigger engines have also been increasing
significantly. One reason for this is the increase in over-40
men buying large cruisers—many of them Harley-Davidsons—
for recreational riding on weekends and holidays.

Because of their vulnerability and the lack of safety features
on motorcycles, motorcycle drivers and their passengers are at
higher risk for more serious injuries than occupants of a passenger
car. A motorcyclist is more likely to break bones, suffer
head injuries, and sustain severe friction burn injuries in an
accident, particularly if he was not wearing protective clothing.
Fuel system leaks and spills are present in about 60 percent of
motorcycle accidents, posing an undue hazard for fire and heat
(“thermal”) burns.

LANE SPLITTING

Suppose you are operating a motorcycle at rush hour, and traffic
is “stop and go.” You decide to ride in the space between
cars. While you’re doing so, a car makes an abrupt lane change,
crashing into you or causing you to lose control and go down.
You suffer serious injuries. Can the driver of the car claim that
you were at fault for “lane splitting” or “lane sharing?”

In California, a motorcyclist may drive between cars,
whether the automobiles are stopped or moving, as long as it is
safe to do so. Whether it was “safe” to drive between the cars is
determined on a case-by-case basis. There are no hard and fast
rules. However, the driver of the car may be negligent in failing
to signal an upcoming lane change to warn lane-splitting
motorcyclists of the impending danger. The car driver may also
be negligent in failing to look in her rear-view and side mirrors
to see whether any motorcycles were approaching from behind
before changing lanes.

SINGLE MOTORCYCLE ACCIDENTS

A significant number of motorcycle accidents are single vehicle
accidents in which the motorcyclist collides with the roadway
or a fixed object. In accidents involving only the motorcycle,
operator error is the main factor in approximately two-thirds
of such accidents, the typical error being a slideout and fall
resulting from over-braking or running wide on a curve due
to excess speed or under-cornering. While such accidents are
usually operator-caused, preventing the motorcycle operator
from suing anyone for his injuries (unless there was a faulty
design of the road or other condition of the road that caused
or contributed to the accident), a passenger on the motorcycle
generally may seek monetary damages for her injuries from the
errant operator.

LICENSING, INSURANCE & HELMET LAWS

California law requires the operator/driver of a motorcycle on
public streets to be properly licensed and insured. Statistics
put out by the National Highway Traffic Safety Administration
(NHTSA) reveal that 26 percent of motorcyclists were riding
without a valid motorcycle license in 2007. Without a valid
motorcycle license, a person may not be able to obtain insurance
for operating a motorcycle. Proof of insurance is required
to be submitted to the Department of Motor Vehicles (DMV)
when registering a motorcycle.

According to the NHTSA, wearing a helmet reduces the
chance of being killed in a motorcycle accident by some 30
percent, and it reduces the risk of suffering a traumatic brain
injury by approximately 65 percent. California law requires the
motorcycle operator and his passenger, if any, to be wearing an
approved helmet. In California, an approved helmet must carry
the seal of the federal Department of Transportation (DOT).

If you were not wearing an approved helmet or not wearing
any helmet at all when involved in a motorcycle accident,
the person who was responsible for the accident can use this
fact against you to reduce the amount of monetary damages for
your injuries. For instance, if a helmet would have prevented
45 percent of your injuries, your failure to be helmeted at the
time of the accident will reduce damages by that percent. This
is known as the doctrine of “comparative negligence,” discussed
in Chapter 2. Similarly, if you were speeding at the time
of the accident and the speeding contributed to the accident,
your monetary award will be reduced by the percent that the
speeding contributed to the accident. If your speeding was the
sole cause of the accident, then you would not be entitled to any
recover from the other party, and may indeed be held legally
responsible (“liable”) for the other party’s injuries and damage
to her vehicle.

NEGLIGENTLY DESIGNED OR MAINTAINED ROADS

Added to the inherent dangers of riding a motorcycle, the
motorcycle operator must often deal with less than ideal road
surfaces and various obstructions, such as uneven asphalt,
potholes, poor surface conditions, bad road designs, and hazards
such as blind corners, placement of light standards, speed
bumps, low curbing, ruts, debris, uncovered drainage pits, and
others. Where a defective design or condition of the roadway
causes the motorcyclist to lose control of her bike and go down,
suffering injuries, it may be possible to seek compensation
from the city, county, or state that owns and/or maintains the
road. You need to be aware, however, that if you wish to hold
a state, county, or city liable for your injuries, a claim for damages
must be made with the appropriate government agency
within six months or less, or your right to sue the public entity
may be forever lost.

PASSENGER TRAINS

Passenger trains such as Amtrak and Metrolink are “common
carriers.” As such, these train lines owe their passengers the
highest degree of care and safety, and they can be held liable
for injuries to and deaths of passengers resulting from even
their slightest carelessness (“negligence”). The duty of passenger
and commuter trains toward their occupants as common
carriers is discussed in Chapter 11, “Municipal Transportation
(Mass Transit) Accidents.” Toward non-passengers, the train
owes only the ordinary duty to act carefully and not subject
those off the train to an unreasonable risk of harm or injury.
Non-passenger-carrying freight trains owe persons that same
standard of care, the ordinary duty to act carefully and not put
others at an unreasonable risk of harm.

On a Friday afternoon, September 12, 2008, at approximately
4:30 p.m., a Metrolink commuter train traveling through the
city of Chatsworth crashed head-on into a freight train, killing
25 people and injuring 135 more. Both trains were on the same
section of a single track that runs from Chatsworth station—
which is double tracked—through Santa Susana Pass. The
line returns to double track again as it enters the Simi Valley.
Three tunnels under Santa Susana Pass are wide enough only
to support a single track; expanding the area to accommodate
double tracks would be financially prohibitive. The line’s railway
signaling system is designed to ensure that trains wait on
the double track section while a train is proceeding in the other
direction on the single track. The Metrolink train would normally
wait in the Chatsworth station for the daily Union Pacific
freight train to pass before proceeding, unless the freight train
was already waiting for it at Chatsworth.

This was Metrolink’s deadliest accident ever, and the
country’s deadliest railroad accident since an Amtrak crash
in Mobile, Alabama killed 47 people 15 years earlier in 1993.
The investigation showed that, despite warning lights, the
Metrolink train had failed to stop or move to an outer track
before encountering the freight train. The preliminary investigation
showed that an engineer aboard the Metrolink train was
using his cellular phone to text message a teen-aged railroad
enthusiast in the minutes immediately prior to the collision.
The last message he sent was just 22 seconds before the two
trains collided.

A complaint filed against Metrolink and its contractor who
provided the engineers alleged that Metrolink knew locomotive
engineers were using their cellular phones to make telephone
calls and send text messages on the job, even though
these actions violated railroad rules prohibiting the use of
cell phones while on duty. Federal investigators said that the
engineer, who was killed in the collision, was supposed to have
stopped at a red signal just before a switching mechanism that
would have guided the freight train to a side track. Instead, the
engineer allowed the train to careen over the switch at over 40
mph, bending it badly, before colliding with the freight train on
a sharp curve about a quarter of a mile past the warning light.
In addition to the engineer’s alleged misconduct on the job
that led to the crash, investigators also studied the position of
the warning lights, stating that the position of trackside warning
lights could have increased distractions for the engineer.
Several witnesses interviewed by a newspaper reporter stated
that the signal was visible from the station, and the signal was
green as the Metrolink train left the Chatsworth station just
before the collision. The National Transportation Safety Board
(NTSB) investigators tested the railway signal system after the
accident and found it to be working properly. The signal system
should have shown proper signal indications to the Metrolink
train, with two yellow signals as the train approached the
Chatsworth station, and a red signal at the switch north of the
station.

The NTSB conducted a final sight distance test in which
identical locomotives as those involved in the collision were
brought together at the point of impact and slowly backed away
from each other. They found that the trains’ engineers could not
see each other until less than five seconds before the collision.

Accidents such as the one in Chatsworth can often be
avoided by the use of a system such as “positive train control”
(PTC), a safety backup system that can automatically stop a
train that runs a red warning light and thus frequently prevents
collisions. The Federal Railroad Administrator told a reporter
several days after the accident that PTC would have stopped
the train before there was a collision. The NTSB member leading
the investigation stated that she was convinced that such a
system as PTC would have prevented the accident.

Note that the duty owed by a railroad to its passengers
includes not only those who are actually onboard the train, but
also to those getting on and off the train. Further, the heightened
standard of care extends from the depot to the waiting
platform.

In 1997, then President Bill Clinton signed into law The
Amtrak Reform and Accountability Act (ARAA) which, among
other things, limits the amount of money victims or their families
can receive. Recovery is limited to $200 million per accident—for
everyone involved. The $200 million limit is for “the
aggregate allowable awards to all rail passengers” from any
single passenger rail accident. That includes both economic
damages (such as medical expenses and lost wages) and noneconomic
damages (such as pain and suffering). It also includes
any punitive damages that may be awarded by a jury for deliberate
misconduct, although the ARAA makes it much tougher
to win a claim for punitive damages. While the ARAA names
Amtrak in particular, the $200 million limit is applicable to all
passenger trains. Although $200 million may sound like a considerable
amount of money, it really isn’t, particularly in train
accidents that have the capacity to injure and kill hundreds of
people, as in the Chatsworth incident. The constitutionality
of the $200 million aggregate limit has not yet been tested in
court.

While in office, President George W. Bush signed legislation
that would have prevented persons injured in railroad accidents
from suing in state court, limiting them to federal courts.
However, on his first day of office, President Barack Obama
stayed that rule. The reason the railroads want the cases tried
in federal court is because state court juries tend to be more
generous with their awards when they find someone was at
fault.

FREIGHT TRAINS

Freight trains can derail and overturn, rupturing hazardous
material containers, causing a burst of toxic fumes to escape
and form a cloud of substances dangerous to neighboring
areas. People who are in the area of such an accident and suffer
injuries or death as a result of breathing in the toxic substances
can sue various defendants to recover adequate compensation
for their medical expenses, lost wages, pain and suffering, and
other injuries and damages.

For instance, in 2005, a Norfolk Southern Railroad derailment
ruptured a tank car carrying chlorine, killing nine people.
Derailments or other accidents that result in the emission of
hazardous and toxic chemicals can affect thousands of people
in the area. If a person dies from inhaling toxic substances, his
survivors can bring a wrongful death action against anyone
who was negligent in causing the accident. Persons and entities
that might be liable in the case of a train derailment or collision
include the locomotive engineers and conductors, the railroad
company itself, any independent contractor that supplies
workers to the train company, the company that maintains the
rails, and the persons or entities that are in charge of managing
the flow of trains along the tracks.

RAILROAD CROSSING ACCIDENTS

The United States has approximately 140,000 public railroad
crossings (also called “level crossings” or “grade crossings”).
Of these crossings, approximately 50,000 have gates, 23,250
have flashing lights, and some 1,250 have highway traffic signs,
wigwag signals, and bells. In the early days, railroad crossings
had a flagman in a booth who would wave a red flag or lantern to
stop all traffic and clear the tracks when a train was approaching.
According to the NTSB, more than 80 percent of public
railroad crossings do not have lights and gates, and 60 percent
of all railroad accidents occur at these unprotected crossings.

Preventing railroad crossing accidents has been a concern
ever since the invention of the iron horse. A number of different
techniques have been used. In the early days, when a farmer or
shepherd was moving his animals across the tracks, the gate
would swing open to allow the farmer and his animals to pass
over, but the gates would form a protective barrier to prevent
the livestock (and people) from roaming onto the railroad
tracks.

All public rail crossings in the United States are required to
be marked by at least a crossbuck, which is the sole warning
device in many rural areas. A crossbuck is simply a wooden
post with the words “Railroad” and “Crossing” attached to
it at a 45 degree angle. More heavily traveled crossings are
equipped with automatic warning devices (AWDs), with alternate
flashing red lights to warn automobile drivers and a bell to
warn pedestrians of an approaching train. Crossing gates block
the approach of motor vehicles to the tracks when activated.
Now many crossings are using four-quadrant gates to prevent
drivers from going around the gate that only bars travel for the
lanes they are driving in.

With the automatic warning devices (AWDs), about 30 seconds
before the train gets to the crossing, the train trips a track
circuit near the crossing, which triggers the crossing signals.
The red lights begin to flash alternately and a bell mounted at
the crossing starts ringing. After several seconds, the gates (if
the crossing is so equipped) begin to lower, which takes five to
ten seconds. Most bells continue ringing throughout the entire
procedure—from the time the red lights start flashing signaling
the approach of a train until the gates have returned to their
full upright position. The bells on some AWDs stop ringing
once the gates are lowered. Approximately 15 to 20 seconds
before it reaches the crossing, the train begins ringing its bell
and sounding its horn in accordance with federal rules. The
horn sounds as follows: two longs, one short, and one long. The
train continues to sound the horn until the engine occupies the
crossing. If the automatic warning device is equipped with a
horn, the AWD may provide the whistle signal instead of the
train; however, the train must continue to ring its bell. Once
the train has cleared the crossing, the gates (if present) begin
to rise, and the bells (if silenced) may begin ringing again. Once
the gates are back to their fully raised position, all warning signals,
including the lights and bells, are deactivated.

Technology exists that could prevent many vehicles from
trying to beat the train by ignoring a gate barrier and driving
around it and onto the railroad tracks, where it could be hit by
a train. For instance, a gate that is long enough to extend over
both sides of traffic, or a gate that also covers both sides of the
road would discourage many, if not most drivers, from trying
to beat the train. A new device called a “StopGate” is made up
of two extended length arms that block the entire width of the
roadway and lock into a securing device on the other side of
the road. The gate arms are reinforced with high-strength steel
cable, which helps the gate absorb the impact of a vehicle trying
to crash through it.

When a driver maneuvers around a lowered gate barrier and
tries, unsuccessfully, to cross the track before the train reaches
the crossing, it can be difficult to prove that the railroad was
negligent in any way. However, passengers in the car who are
hurt—or the surviving family members of a passenger who was
killed in the accident—may have the right to sue the driver (or
her estate in case of death) for negligence in not obeying the
barrier.

Some railroad crossings become dangerous because of overgrown
trees or vegetation or buildings that block the driver’s
view of the tracks and approaching trains until it is too late
to avoid them. In other cases, warning devices such as gates,
bells, and lights that are designed to alert drivers that a train is
coming are either broken or not installed where they should be.

Carelessness (“negligence”) of the railroad workers may also
contribute to a railroad crossing accident. The train may be
traveling too fast in a populated area, not giving drivers enough
time to react and avoid a collision. This is particularly true when,
in addition to speeding, the train fails to sound its whistle, leaving
drivers unaware that a train is approaching until it is too
late to take evasive measures. The train company may also be
liable for failing to properly train its engineers, conductors, and
other employees involved in the operation of the train, making
their employees work long hours without sufficient rest, or failing
to supervise and/or suspend employees who have a history
of safety violations related to alcohol or drug abuse.

When the injured victim claims that the railroad crossing
was dangerous because of its design, non-functioning or malfunctioning
gates, signal lights, and/or bells, or other defect, be
aware that if a governmental agency was in charge of designing,
erecting, constructing, or maintaining the railroad crossing,
you usually must file a claim with the appropriate governmental
agency within six months or your claim may be lost forever.
This is one of the main reasons you should contact an experienced
personal injury lawyer as soon as possible after an accident
involving an allegedly defective and dangerous railroad
crossway.

RIGHTS OF RAILROAD WORKERS WHO ARE
INJURED ON THE JOB

In most industries and professions, when an employee suffers
a job-related injury, she is able to collect worker’s compensation
benefits, even if the employer was not at fault in any way.
Indeed, the worker can collect worker’s compensation benefits
even if the injury was her own fault. However, the railroad
industry is an exception to this. There is no worker’s compensation
scheme to protect railroad workers who suffer on-the-job
injuries. This does not mean, however, that the injured railroad
worker has no right to be compensated when he is injured.

In 1908, in response to the thousands of deaths and injuries
of railroad workers in the late 1800s and early 1900s, Congress
passed the Federal Employers Liability Act (FELA) for the purpose
of providing compensation to railroad employees who are
injured on the job. FELA allows injured employees to file claims
directly against their employers where it can be shown that the
railroad was negligent in some way and caused the employee’s
injuries. To recover under FELA, the injured employee must
prove that his employer was careless (“negligent”) in some
way, and that negligence resulted in the worker’s injuries.
Negligence can be defined as the railroad’s failure to exercise
reasonable care toward its employee so as not to injure him.
Examples of negligence include not providing a safe place to
work, proper tools and equipment to do the job, or adequate
training or assistance.

The doctrine of “comparative negligence” applies in FELA
case. Under the rules of comparative negligence, if the worker
was partly at fault for causing the accident, his recovery is
reduced by the amount of his comparative negligence. Thus, if
the railroad was found 75 percent responsible for the accident
and the worker was determined to be 25 percent at fault, the
worker’s recovery would be reduced by 25 percent under the
rules of comparative negligence.

FELA provides that the injured railroad employee may file a
lawsuit in the state or federal courts and have a jury decide the
damages to which he is entitled, if any. Generally, an injured
railway employee has three years to sue his employer for damages.
However, if the accident involved a train or track owned
and operated by a governmental agency (such as the United
States, a particular state, a county, or a city), a proper claim for
damages must be filed with the proper governmental agency
within six months of the accident or the right to sue the governmental
agency is lost forever.

Unlike worker’s compensation laws, under FELA there is no
schedule of benefits that the injured worker is entitled to receive
weekly or otherwise. Rather, there are elements of damages the
injured worker can recover, such as past and future medical
expenses, lost wages and loss of earning potential, permanency
of the injury and effect on lifestyle, past and future pain and
suffering, disfigurement, and emotional distress. A successful
FELA personal injury or wrongful death case usually results in
a significantly higher amount of recovery than if the victim or
survivors had to pursue their claims under worker’s compensation
laws.

A “large truck” is defined as one having a gross weight in excess
of 10,000 pounds. According to the National Highway Traffic
Safety Administration (NHTSA), in 2008, 380,000 large
trucks were involved in traffic accidents in the United States.
About 4,000 of the large trucks were involved in fatal crashes,
resulting in approximately 4,250 fatalities. One of out every
nine traffic fatalities in 2008 resulted from a collision involving
a large truck. In addition to the people killed in a large truck
accident, 90,000 people were injured in such crashes. In 2008,
large trucks accounted for 8 percent of all vehicles involved in
fatal collisions and 4 percent of all vehicles involved in injury
and property-damage-only crashes.

Approximately nine million registered large trucks are on
the road. There are two main categories of large trucks: (1)
single-unit trucks, in which the engine, cab, drive train, and
cargo area are all on one chassis, and (2) combination-unit
trucks. A combination-unit truck is defined as a tractor pulling
any number of trailers, or a straight truck pulling at least one
trailer. In this configuration, a separate power unit is combined
with a trailer. Conventional combination vehicles include a 5-
or 6-axle tractor semi-trailer. The 5-axle tractor semi-trailer is
the most popular configuration. It has a common maximum
weight of 80,000 to 90,000 pounds when fully loaded and
accounts for about 60 percent of all large trucks involved in a
fatal collision.

When a large truck gets into an accident, it is rarely the typical
fender bender. Because of the weight disparity between a
large truck and the typical vehicle—be it a sedan or an SUV—or
a motorcyclist, bicyclist, and pedestrian, the damage is usually
severe and the injuries critical, even fatal. The average passenger
vehicle weighing 2,500 to 3,500 pounds is no match for a
fully loaded commercial truck weighing up to 80,000 pounds
or more.

Of the deaths that resulted from crashes involving large
trucks in 2008, 74 percent were occupants of another vehicle, 10
percent were non-occupants (e.g., pedestrians and bicyclists),
and 16 percent were occupants of the large truck (that is, the
truck driver himself or his passenger). Of the people injured
in crashes involving large trucks, 71 percent were occupants of
another vehicle, 3 percent were non-occupants, and 26 percent
were occupants of the large truck.

Large trucks are more likely to be involved in fatal multiplevehicle
crashes (as opposed to fatal single-vehicle crashes) than
are passenger vehicles. In 30 percent of the two-vehicle fatal
crashes involving a large truck and another type of vehicle,
both vehicles were hit in the front. In half of the two-vehicle
crashes involving a large truck and another type of vehicle,
both vehicles were proceeding straight at the time of the crash.
About one-third of two-vehicle fatal crashes involving large
trucks are head-on collisions. In 9 percent of the crashes, the
other vehicle was making a turn. In 9 percent of large-truck
accidents, either the truck or the other vehicle was negotiating
a curve at the time of the collision. In 8 percent, either the truck
or the other vehicles was stopped or parked in a traffic lane.

Fatal truck accidents involving large trucks are most likely
to occur during the daytime (67 percent) on a weekday (80
percent) in a rural area (64 percent) on dry road conditions. On
weekends, 63 percent of truck-related crashes occur at night
(6:00 p.m. to 5:59 a.m.).

In addition to the injuries caused by the impact of the collision,
there will be the possibility of serious secondary injuries
in cases where the large truck is hauling hazardous or flammable
materials. A victim may come into contact with or breathe
in caustic hazardous materials. She may be severely burned
or suffer smoke or heat inhalation injuries if the tanker trailer
spills its load of gas or other flammable fuel and catches fire.

CAUSES OF LARGE TRUCK ACCIDENTS

There are four broad reasons large trucks get into accidents:
(1) driver error, (2) something is mechanically wrong with the
truck (usually a problem involving the brakes, tires, lights, or
steering, often due to negligent maintenance of the truck or
trailer), (3) there is a defect in the condition or design of the
road or traffic signs or signals, or (4) there is a defect in the
design or manufacture of the truck and/or trailer.

DRIVER ERROR

As for driver error, there are a number of reasons the driver
may make a mistake. Common reasons are:

  • Fatigue
  • Speeding or driving too fast for the conditions
  • Following too closely (tailgating)
  • Unfamiliarity with the road
  • Aggressive driving
  • Changing lanes unsafely
  • Being under the influence of alcohol or drugs (especially
    stimulants), including drugs that are prescription or
    over-the-counter which affect the driver’s concentration,
    reflexes, and judgment
  • Lack of experience or training
  • Misjudging the speed of other vehicles on the road
  • Being distracted by something inside or outside of the cab
  • Driving outside of designated truck lanes
  • Making an illegal maneuver
  • Not paying sufficient attention to the road ahead and traffic
    conditions
  • Backing up without taking appropriate precautions
  • Failing to signal a turn
  • Poor performance during an accident, such as panicking,
    overcompensating, or exercising poor directional control
  • The driver’s working environment, including wages, pay
    basis (i.e., by the hour, mile, or trip), and company safety
    record

Driver fatigue may result in up to 30 percent of truck
accidents. The driver may have compensation incentives
that encourage faster truck speeds and more hours of consecutive
driving than would be normally allowed or advisable.
Unrealistic schedules and expectations of trucking companies
often encourage drivers to hurry, despite the safety risks
involved.

There are federal rules and regulations on the number of
hours an interstate commercial truck driver may drive each
week, as well as the number of hours of sleep the driver is
expected to get each night. The driver is expected to keep a log
of his activities, such as hours and miles on the road and hours
and time of sleep. However, drivers frequently falsify their log
entries or complete their log books days after the fact, ignoring
the regulations while en route to their destination. Before
President George W. Bush changed the rules, truck drivers
could spend 10 consecutive hours behind the wheel, and could
drive a maximum of only 60 hours each week. The driver could
return to work only after 50 hours off-duty.

In the last months of his administration, however, President
Bush signed a regulation increasing the number of hours a
truck driver could drive each day from 10 to 11 and increasing
the total number of hours the driver could drive from 60 to 77
hours a week. After the driver has driven the maximum amount
of hours, the Bush regulation requires that the driver must not
drive for at least 34 consecutive hours, 16 hours fewer than the
previous 50 hours the driver was required to be off-duty. As a
result of the Bush changes, drivers are driving longer hours on
less rest, resulting in an increase in the number of big truck
accidents. The percentage of fatal crashes resulting from driver
fatigue rose 20 percent from 2004 to 2005, the first year in
which the longer driving hours were allowed. In October 2009,
the Federal Motor Carrier Safety Administration signed an
agreement with consumer groups, the Teamsters Union, and
others vowing to revise the 11-hour rule. With the increase in
driving hours, many drivers resort to stimulant drugs to help to
keep them awake and aware.

Nearly one-fourth (24 percent) of all large-truck drivers
involved in fatal crashes in 2008 had at least one prior speeding
conviction, compared to 18 percent of passenger car drivers
involved in fatal crashes. However, drivers of large trucks were
less likely to have a previous license suspension or revocation
than were passenger car drivers (7 percent and 15 percent,
respectively). Only 2 percent of large-truck drivers involved
in fatal crashes had a blood alcohol content (BAC) of .08 (the
limit for driving under the influence) or higher. For drivers of
other types of vehicles involved in fatal crashes in 2008, the
percentages of drivers with BAC levels of .08 or higher were 23
percent for passenger cars, 23 percent for light trucks, and 29
percent for motorcycles.

MECHANICAL PROBLEMS WITH THE TRUCK

Worn brakes and tires, faulty steering, and light problems are
the major mechanical reasons for large trucks causing an accident.
If the brakes are worn, the driver is not able to stop the
truck in time to avoid colliding with the vehicle in front of it
or stopping at the limit line of an intersection. Worn or bald
tires also prevent the truck from stopping properly and reduce
the truck’s responsiveness in turns. Steering problems make it
difficult, if not impossible, for the driver to control the truck,
while burnt-out or otherwise inoperable lights fail to show
other vehicles on the road that the truck is intending to turn,
has applied the brakes, etc.

Other leading causes of large truck accidents due to problems
with the truck or trailer include:

  • The failure to inspect the truck each day before it is used
  • The failure to perform regular maintenance on the truck
  • The failure to install blind-spot mirrors
  • Equipment failure
  • Improperly loaded trailers
  • Insufficiently secured cargo
  • The failure to maintain current inspection stickers
  • A tire blowout
  • Driving empty trailers in windy conditions
  • A defect in the design or manufacture of the truck or
    trailer

In one study, more than one-third of the large trucks inspected
after a crash had maintenance defects that would have placed
them out-of-service (OOS) if they had been inspected before
the crash. Brake problems were found in 32 percent of the
trucks, and violations of light/marker/signal regulations were
present in 23 percent of the large trucks involved in accidents.

In July 2009, the National Highway Traffic Safety Administration
(NHTSA) issued stringent new braking standards
that will save lives by improving large truck stopping distance
by 30 percent. The new standard requires that a tractortrailer
traveling at 60 miles per hour come to a complete stop
in 250 feet, rather than the old standard, which required a
complete stop within 355 feet. The NHTSA estimates that the
new braking requirement will save hundreds of lives annually,
and will also prevent many serious injuries each year.
It is estimated to reduce property damage costs by over $169
million annually. The new regulation will be phased in over
four years beginning with 2012 models. The new rule applies
only to truck tractors and does not include single-unit trucks,
trailers, and buses.

Large trucks such as eighteen-wheelers have the risk of jackknifing
if it is necessary for the driver to come to an abrupt
stop to avoid a collision or make a sharp turn to avoid hitting
another vehicle. Large trucks also pose a specific danger when
they are making turns, as they must make a wider turn than
the average motor vehicle and another car may not realize the
danger and get involved in an accident.

Tragedy often strikes when the truck’s brakes are worn and
can’t keep the large truck from running wild down a hill. The
truck driver may be unable to stop at a stop sign or red light
at the base of the hill, resulting in the runaway truck crashing
into everything in its way, causing deaths, critical injuries, and
tremendous property damage. Or the driver may not be able
to negotiate a turn at the bottom of the hill, also resulting in
personal injuries to those in its way, damage to property, and
possible deaths.

DANGEROUS ROADS

Problems with the condition or design of the roadway or with
traffic signs and signals are another cause of truck accidents. In
those cases, the public entity that owns or controls the defectively
designed or improperly maintained road may be found
legally responsible for some or all of the damages. The roadway
may be defective due to a lack of warning signs informing the
truck driver of a sharp turn ahead (such as in the case of an
off-ramp) or a downhill grade and the need to shift into a lower
gear to prevent a runaway truck. If a governmental agency,
such as a city, county, or state, is in charge of designing and
maintaining the defective roadway, it is essential that you see a
lawyer as soon as possible, as a claim for damages must be filed
with the appropriate governmental agency within six months
of the accident or your claim may be forever barred.

Roads may also be dangerous due to icy or wet surface conditions,
the negligent design of off-ramps (such as being too
sharp and not having any caution signs warning truckers to
reduce their speed to a certain limit so they can navigate the
turn safely without overturning), highway conditions and signals,
lighting, and weather conditions. These factors can also
be important in determining the parties liable for the collision.

DEFECTS IN THE DESIGN OR MANUFACTURE OF
THE TRUCK OR TRAILER

Apart from mechanical problems that may arise with a truck
or trailer through ordinary wear and tear, some accidents
involving large trucks are the result of a defect in the design or
manufacture of the truck. For instance, the truck’s gas tanks
may be placed in an unsafe location, increasing the danger to
the driver and other motorists from a breach of the gas tanks,
causing them to rupture and catch fire, inflicting serious injuries
or even deaths.

A defect in the manufacture of the truck is usually due to
the carelessness (“negligence”) of a worker at the truck maker’s
plant or at a company that modifies the truck’s chassis for a
special use. For instance, a welder may not do a proper job
of welding two metal plates together, causing the plates to
separate while in use, resulting in injuries or deaths. Accident
reconstruction experts are frequently able to pinpoint a defective
weld or other problem with the truck. (See Chapter 21,
“Defective Products,” for a more detailed discussion of a defect
in design or manufacture.)

INDEPENDENT TRUCK DRIVERS

One issue that often arises in large truck cases is whether the
driver of the truck was an employee of the company whose load
she is transporting, or whether the driver is an “independent
contractor.” If the driver is an employee of the company and
causes an accident due to her carelessness (“negligence”), then
the company she works for is on the hook for all damages caused
thereby under the legal theories of “respondeat superior” and
“vicarious liability.” However, if the driver is an independent
contractor, such as a driver who owns her own tractor and is
free to carry anybody’s goods, then ordinarily only the careless
driver may be held legally responsible (“liable”) for the injuries
or deaths she causes due to her mistakes or her failure to keep
the tractor in good working condition.

The company whose load was being carried is generally not
liable for any injuries or deaths when the driver is an independent
contractor. However, the company can be held liable if
it was negligent in its choice of this particular independent
contractor driver. For instance, if the driver has a history of
accidents or traffic violations, the company may be held liable
for the injuries and deaths caused by the negligence of the driver
while carrying the company’s product. Or if the driver had little
or no experience in driving this type of truck configuration or
the company’s employees carelessly loaded the truck, such as
in a manner resulting in it being top heavy, the company may
be held legally responsible for injuries caused by the inexperienced
driver or the truck’s overturning because of the improper
load. The company can also be liable for the carelessness of the
independent contractor driver when it retains a certain degree
of supervision or control over the driver. The company that
owns the trailer can also be held liable if the trailer had worn or
defective tires or other mechanical problems that contributed
to the accident.

UNSAFE ACTIONS OF OTHER MOTORISTS

In many accidents involving large trucks and another vehicle,
unsafe practices of the other driver are the cause of or a contributing
factors to the accident. For instance, the driver of
a car may try to pass a large truck on the right, not realizing
that the truck has moved to the left in anticipation of making
a wide right turn. Of course, if the truck driver does not properly
signal his intention to make the turn, the conduct of the
other driver may not be considered careless. Other examples
of accidents that may not be due in part to anything the truck
driver did or the condition of the truck include the other party:
(1) driving alongside or behind a large truck in its blind spot so
that the truck driver cannot see the vehicle, (2) changing lanes
abruptly in front of a truck or merging improperly into traffic,
which may cause the truck driver to maneuver or brake quickly,
resulting in the truck’s jackknifing, and (3) making an unsafe
left turn by not yielding the right-of-way to an oncoming truck.
However, if both parties were at fault, then the legal doctrine of
“comparative negligence” comes into play, which reduces, but
does not extinguish, the injured party’s right to recover monetary
damages for his injuries and related expenses and losses.
(See Chapter 2 for a complete discussion of your rights when
both drivers are at fault for the accident.)

Each day, hundreds of thousands of people rely on public or
municipal transportation to get to work, go shopping, visit
friends, or to otherwise get from one place to another. Every
year, thousands of riders are injured when the public transit
car they are riding in gets into an accident with another vehicle,
pulls away from the curb too quickly while a person is trying to
get on or off the mode of transportation, or when a passenger
loses their balance because of a violent stop or jerk.

Mass transit accidents happen for a variety of reasons. For
instance, perhaps a bus is following another vehicle too closely
and crashes into the other vehicle when it suddenly stops. Of
course, as far as passengers are concerned, it is not necessary
for the bus or other form of public transportation they are
riding to actually crash into the other vehicle. If the operator
of the public vehicle was able to avoid crashing into the vehicle
ahead of it, the public entity may still be legally responsible
(“liable”) for injuries to its passenger who may fall or otherwise
be injured due to the sudden stop.

Some other common causes of mass transit accidents are:

  • Sudden acceleration
  • Colliding with another vehicle when merging with traffic
    after making a stop
  • Turning too suddenly or too quickly
  • Improper maintenance of the vehicle (such as worn-out
    brakes that don’t stop the vehicle in time to avoid an
    accident)
  • Carelessness or recklessness of the driver or operator
  • Inattention of the driver
  • The driver being under the influence of alcohol or drugs
    (legal or illegal, prescription or over-the-counter)
  • Wire derailment
  • Equipment failure

The public entity has an obligation, both to its passengers
and non-passengers alike, to hire only qualified drivers, operators,
and other employees and to see to it that they are properly
trained to do their job.

The liability of publicly owned or operated buses, the MUNI,
light-rail systems, Metrolink, heavy-rail systems, subway cars,
BART, electric trolleys, cable cars, trains, and other modes of
mass transportation operated by a public entity (such as a city,
county, the State of California, or the United States government)
involves two “standards of care:” one to its passengers
and another to non-passengers. In the relationship with its passengers,
a government-operated transit system is considered
a “common carrier,” and so it owes those individuals a higher
degree of care. Toward non-passengers, the transit system
owes only the duty of ordinary care.

WHO IS A PASSENGER?

It is not necessary for the person to be completely inside the
bus or other form of mass transit and to have paid the fare to be
considered a “passenger.” A person becomes a passenger when
he demonstrates an intent to board the vehicle and the vehicle
stops to let him on. A person who is in the process of getting off
a public vehicle is still considered a passenger until he is safely
off the vehicle. Thus, from the moment a person signals his
intention to get on the vehicle and the vehicle stops to pick him
up until he is safely discharged from the vehicle in a reasonably
safe place, the public vehicle, as a common carrier, is required
to use the utmost care and diligence for the passenger’s safety.

Suppose a public bus pulls away from the curb while
someone is trying to get on, resulting in the person’s falling
into the street and being run over by the back wheels of the
bus. The public entity that owns or operates the bus can be
held legally responsible (“liable”) for the injuries to or death
of that person (who is legally considered to be a passenger)
for failing to use the highest duty of care for the safety of the
passenger trying to board the bus, even though he was not
completely inside the bus and had not paid the fare at the
time of the injury or death.

A person is considered a passenger until he has safely gotten
off the public vehicle in a relatively safe place. The public
vehicle’s operator’s responsibility to the passenger continues
until the passenger has had sufficient time to get away from the
vehicle without injury. The public entity is legally responsible
for any and all injuries a passenger suffers if, for instance, a
public bus starts pulling away at a stop while the passenger is
still in the process of getting off the bus, and he is injured when
he falls when the bus starts moving again. The public bus is not
necessarily required to let the passengers off at the curb; however,
the bus driver must let the passengers off in a safe place
where there is no danger of their being hit by passing vehicles
or being injured by a dangerous condition of the street.

A special relationship exists between the means of public
transit and its passengers that imposes a heightened duty on
the public entity and its operators to safeguard its passengers.
As the California Supreme Court has stated in relation to buses:
“Bus passengers are sealed in a moving steel cocoon. Large
numbers of strangers are forced into very close physical contact
with one another under conditions that are crowded, noisy, and
overheated. At the same time, the means of entering and exiting
the bus are limited and under the exclusive control of the bus
driver. Thus, passengers have no control over who is admitted
on the bus and, if trouble arises, are wholly dependent upon
the bus driver to summon help or provide a means of escape.
These characteristics of buses are, at the very least, conducive
to outbreaks of violence between passengers and at the same
time significantly limit the means by which passengers can protect
themselves from assaults by fellow passengers. We believe
these characteristics of public transportation, along with the
duty of utmost care and diligence imposed by California law,
provide a more than ample basis for finding that a special relationship
exists between buses and their passengers.”

MASS TRANSIT AS COMMON CARRIER

A “common carrier” is a person, company, or public entity
that basically agrees to transport anyone who can pay the fare
(in legal terms, persons who “tender the price of carriage”).
A publicly owned or operated mass transit system that transports
passengers is a common carrier. As to its passengers,
the public entity, as a common carrier, owes them the “highest
degree of due care” and is liable for its passengers’ injuries and
deaths resulting from even the slightest carelessness (“negligence”).
Common carriers are required to do all that human
care, vigilance, and foresight can reasonably accomplish under
the circumstances to protect its passengers from being hurt or
killed.

As to non-passengers, such as people in other vehicles,
motorcyclists, bicyclists, or pedestrians not intending to board
the mass transit vehicle, the government entity owes them only
the “ordinary standard of care.” This is the duty to conduct its
operations in such a manner so as not to put the people traveling
via the other vehicles or pedestrians at an unreasonable risk
of harm.

Being a common carrier, a public entity has a duty to use
the utmost care and diligence to protect its passengers from
assaults by other passengers. The public entity can be held
legally responsible for injuries resulting from an assault by
another passenger when the operator of the public vehicle
knew or should have known that an assault on a passenger may
be about to occur and had the ability to prevent the injury. This
does not require that the public entity provide an armed security
guard on every public mass transit vehicle. Rather, there
are a number of precautionary measures the operator could
take which would impose little, if any, burden on the operator.
Some of the actions that could be taken include the operator:
(1) warning unruly passengers to quiet down or get off the
vehicle, (2) calling the police and asking for their assistance, or
(3) ejecting the unruly passengers.

NECESSITY OF FILING A TIMELY CLAIM

One thing that is vitally important to know about injuries
caused by a governmental agency or public employee is that,
before you can sue, you must file a claim for damages with the
appropriate governmental agency within a shortened period
(usually six months). If you don’t, you will forever lose your
right to hold the public entity responsible for your injuries or
your loved one’s death. It is therefore extremely important that,
if you want to pursue a case involving the fault of a government
agency, you contact an experienced personal attorney as soon as possible.

Automobile accidents are the leading cause of death for
Americans under the age of 34. Each year, there are about 6.5
million automobile accidents resulting in nearly 40,000 deaths
and 3.5 million injuries. Age is a factor in many auto accidents.
Drivers between the ages of 16 and 20 and those over 70 have
a much higher percentage of accidents than people in other age
ranges.

COMMON CAUSES OF
MOTOR VEHICLE ACCIDENTS

The most common type of auto accident is the rear-end collision.
For instance, a car stops at a stop sign, a red light, or
in rush-hour traffic, and the vehicle behind it crashes into
the back of the first car. The errant driver often simply wasn’t
paying sufficient attention to the road in front of him; by the
time he realized that the car in front had stopped, it was too
late to avoid an accident. Abruptly reducing your speed to look
at the aftermath of an accident (“rubbernecking”), causing the
vehicle behind you to crash into your car, is another common
cause of rear-end collisions.

If you were stopped at a stop sign or red light when your
vehicle got rear-ended, in 99.99 percent of the cases the driver
who hit you from behind will be legally responsible; the law
requires that you drive a safe distance behind other cars so
you won’t run into them if you have to stop suddenly. The one
major exception to this rule is when a driver suddenly pulls
in front of you and brakes hard, causing you to rear-end his
vehicle. This type of case is used by criminals to defraud insurance
companies out of money, because they know how hard it
is to disprove liability in rear-end collisions. They have a network
of seedy doctors who treat the “injured victim” until their
bill reaches an astronomical amount, and then members of the
group, which may be fronted by an unethical lawyer, negotiate
with the insurance company for large settlements. This kind of
bogus claim drives everybody’s insurance premiums up and is
more common—and lucrative—than you may think.

The failure of a car turning left at an intersection to yield the
right-of-way to oncoming traffic is the second most common
cause of traffic accidents. A driver making a left turn must yield
the right-of-way to oncoming traffic. The left-turning driver
may not be paying attention and may not see an oncoming
vehicle. Or she may see the oncoming vehicle but think (erroneously)
that she has sufficient time to make a left turn. The
driver may misjudge the speed and distance of the oncoming
vehicle. The left-turning driver may speed up, thinking that she
can make the turn before the other vehicle reaches the intersection.
Sometimes the oncoming car is exceeding the posted
speed limit by 10, 15, or more miles per hour, making it harder
to judge how much time one has to make a safe left turn.

Another leading cause of automobile accidents is driver distraction
or inattentiveness; the driver simply isn’t paying sufficient
attention to the road in front of him, the flow of traffic,
and/or the condition of the road. The driver may be distracted
by changing the radio station or volume, picking up a dropped
object, eating, grooming in the car, talking to passengers, tending
to a small child, dealing with a pet, or engaging in a number
of other activities that takes his eyes off the road. It only takes
a few seconds of not watching the road and the cars in front of
you for an accident to happen.

In California, the use of hand-held cell phones is banned
when driving. Still, research shows that people who use handsfree
cell phones are at a much higher risk of getting into an
accident than drivers who don’t use cell phones. The problem is
that the driver’s attention is focused on the telephone conversation
she is having, rather than on the road in front of her and
the surrounding traffic.

Alcohol is involved in approximately 40 percent of automobile
accident cases. The legal limit of blood alcohol content
(BAC) for criminal purposes is .08. But a person with a BAC
of .05 or .06 (or even lower) may be sufficiently impaired to
affect his judgment and reflexes, resulting in a traffic accident.
Because automobile injury cases are tried in the civil courts, it
is not necessary to prove that the at-fault driver met the criminal
definition of impairment to hold him legally responsible
(“liable”) for the monetary damages incurred by the victim,
such as medical expenses, lost wages, and damages for pain
and suffering.

Aggressive driving is a frequent cause of automobile accidents.
This includes such high-risk activities as tailgating,
speeding, excessive lane changing, failing to use signal lights
to indicate a turn or a lane change, cutting off other vehicles,
failing to yield the right of way, and blatantly ignoring traffic
signals or signs.

Failing to maintain one’s vehicle in proper operating condition
is another frequent cause of traffic accidents. Worn-out
brakes are a major cause of many accidents. Tires that do not
have enough tread left to stop the car—especially in an emergency—are
a common cause of traffic accidents. The risk of getting
into a traffic accident in a car with bald tires increases dramatically
when there is water on the road, such as with rainfall
or icing. Other mechanical causes of an accident may be a tire
blowout; a failure of the steering system; axle failure; defects in
the door latches, fuel system, airbags, seat belts, or seat backs;
and insufficient roof strength to prevent a collapse in the case
of a turnover. As you can see, in addition to carelessness on
the part of the vehicle’s owner, the design or manufacturing
of a vehicle may also be defective. This is true of Sport Utility
Vehicles (SUVs), which have a high center of gravity and are
more likely to roll over in an accident.

Weather conditions can lead to many accidents. Rain, ice,
or snow on the asphalt can cause problems with traction and
make it take longer to stop a car than if the road surface was
dry. Southern California gets a relatively small amount of rain;
when it does rain, oil seeps to the surface of the road, increasing
the hazard of a slippery surface. Also, since it rains so infrequently
in Southern California, drivers have little experience
with how to drive safely on slick roads, resulting in a dramatic
increase in accidents during rainy periods.

A growing number of automobile accidents in California
involve street racing. In some cases, two drivers get into a race,
and then a pedestrian or other vehicle starts to cross the road;
the speeding street racer may not be able to stop in time to
avoid the accident. Or one of the cars could lose control and hit
a pole or tree straight-on, causing serious injury or death. In
cases of death, the driver of the other vehicle may face serious
criminal charges.

Sometimes an accident occurs on the freeway or a highway
when someone is driving in the wrong direction and collides
head-on with a vehicle coming from the opposite direction.
Frequently the wrong-way driver is very drunk or high on
drugs and unwittingly got on the wrong traffic ramp. But some
of these drivers are intent on committing suicide and have no
regard for the lives of the persons in the other vehicle who will
be injured or killed in the collision.

Sometimes an auto accident will be due to the negligence
of a public entity—the United States, the State of California,
a county, or a city—in designing, constructing, or maintaining
public roadways. For instance, a public entity may be liable for
deaths or injuries related to road construction accidents resulting
from its negligence, if the public entity created a dangerous
condition with its property for which it had actual or constructive
notice that the condition posed a risk of harm to persons
using the road. Constructive notice means that the dangerous
condition of the roadway had existed long enough that the
public entity should have known about it, such as from a previous
accident or a complaint.

Single-car accidents can happen for a number of reasons.
Perhaps the driver was speeding or driving under the influence
of alcohol or drugs, or there may be a defect in the car that caused
it to go out of control. Another common cause of single-vehicle
accidents is an unsafe and dangerous design of the road. Faulty
signage or road painting can cause a traffic accident. Unsafe
railroad crossings are responsible for a number of injuries and
deaths each year. Single-vehicle accidents can also result from
the negligent design of the vehicle, such as with 15-passenger
vans and SUVs: both have a higher center of gravity and may
roll over while the driver is negotiating a sharp turn.

Suppose a vehicle hits you and causes injuries to you and
your passenger but it leaves the scene before you get a chance
to exchange information such as name, address, insurance
coverage, registered owner, and the like. Cases such as these
are treated as uninsured motorist claims. Any recovery for the
personal injuries suffered by you and your passengers must be
made under the uninsured motorist clause of your own automobile
insurance policy. But what if you didn’t purchase uninsured
motorist coverage to save a few bucks on your policy?
Then you are out of luck. If you were in any way at fault for
the accident, and you have some assets, such as a house or
investment portfolio, your passengers may end up seeking
compensation for their medical bills, lost wages, pain and suffering,
and other damages from you personally.

Sport Utility Vehicle (SUV) rollover accidents seriously
injure or kill about 10,000 people in the United States each
year, more than side and rear crashes combined. SUVs and
15-passenger vans are much more likely to roll over or flip over
than standard passenger vans and automobiles. Rollover accidents
are responsible for 51 percent of all deaths in SUVs, 36
percent of deaths in trucks (mainly pickup trucks), and 19 percent
of deaths in passenger automobiles. SUVs were originally
designed as off-road vehicles, and their high center of gravity
makes them top heavy. An SUV traveling at freeway speeds
or above is most likely to rollover when the driver performs a
simple driving maneuver, like turning to avoid an object in the
road or over-steering when passing another vehicle.

One of the main reasons for this high rate of death and serious
bodily harm in rollovers, such as paralysis due to a spinal
cord injury or head injuries including traumatic brain injury, is
crushed roofs. The more the roof is crushed, the more severe the
injuries and the risk of death. The current roof-strength standard
is some 35 years old and many serious injuries or deaths
could be averted by higher strength standards. A study by the
National Highway Traffic Safety Administration (NHTSA)
revealed a clear statistical correlation between the amount a
roof collapsed into the passenger compartment and the severity
of injury. In cases where the vehicle’s occupants were not
injured, the vehicles averaged 16 centimeters of lost headroom
due to roof intrusion. In accidents with the most serious injuries,
the vehicles lost an average of 24 centimeters of headroom
in the rollover crashes.

USING THE POLICE REPORT TO
DETERMINE LIABILITY

Let’s suppose that you’ve been in an automobile accident and
a police officer that arrived on the scene prepared an accident
report. Is this the ultimate and final say on the cause of the
accident? No. Unless the police officer was an eyewitness to
the accident, the police report is considered to be “hearsay”—
facts based on what the officer heard from others as opposed
to seeing it himself—and it is not admissible as evidence in
court. Of course, information contained in the police report
may be extremely helpful to your attorney, such as the gathered
names and statements of witnesses, diagrams of the accident
scene, measurements of skid marks, showing where the car was
struck, etc.

DOES THE OTHER PERSON HAVE INSURANCE
OR SIGNIFICANT ASSETS?

Suppose you were seriously injured in a head-on collision
caused by a drunk driver who crossed the double lines separating
the directions of traffic. Liability is clear and your damages—
financially, medically, and emotionally—run into the hundreds
of thousands of dollars. But the problem is that the driver of
the other car has no insurance (is an “uninsured motorist”) or
low insurance policy limits (an “underinsured motorist”) and
little in the way of possessions that could be sold to pay you. A
million dollar judgment isn’t worth the paper it’s written on if
the person doesn’t have insurance or significant assets to pay
the judgment. We’ve all heard the axiom hundreds of times:
You can’t squeeze blood from a turnip.

If the vehicle is registered to another person, you might
receive some money under the “permissive user” statute that
makes a registered owner monetarily liable to a set amount for
damages caused by someone driving her car with permission.
If you can prove that the registered owner knew the driver had
a history of drunk driving or was a reckless driver, the registered
owner may be held financially liable for all of the damages
under the doctrine of “negligent entrustment,” that is, handing
the keys over to a person she knows should not be driving. If the
driver was employed and working at the time of the accident,
such as transferring merchandise or parts between stores, you
may have the right to sue his employer for your injuries and
damage.

Depending on the situation, you may want to sue the uninsured
or underinsured driver in court and get a judgment
against him. Judgments are good in California for 10 years, and
after that, they are renewable every 10 years until they are paid
off (“satisfied”). That way, if the driver comes into any money—
such as an inheritance—you will be able to collect from that.

Of course, finding a lawyer who will take a case in such a
situation will be extremely hard, as the lawyer usually will not
want to spend much time and energy chasing the wind and
waiting for years for money that may never come. But before
you decide against seeking compensation from the person
who harmed you, regardless of how indigent he may appear
to be, always consult an experienced personal injury lawyer,
especially if your injuries are serious. The lawyer may know
of various legal theories that can be used to get you a significant
settlement or award from, say, the city for a negligently
designed or maintained road, or the employer of the driver if
the driver was running a business errand for his employer.

If you are injured by a driver who has no insurance, or has
insurance but its limits are not enough to cover all of your
expenses, you should be able to collect some or all of your
damages and bills under the uninsured motorist coverage of
your own automobile insurance policy, assuming you purchased
such coverage. This coverage is highly recommended.
Uninsured motorist coverage is usually paired with underinsured
motorist coverage, which kicks in after the other driver’s
insurance, if any, has paid its limits.

REPORTING THE ACCIDENT TO THE POLICE,
THE DMV, OR YOUR INSURANCE COMPANY

Even if you were not at fault, you are generally required to
promptly report the accident and your injuries, if any, to your
own insurance company. One advantage to this is that, in an
automobile case, they can arrange to have your vehicle repaired
and provide you with a loaner car while your car is in the body
shop. Of course, this applies only if you have collision insurance
and you will be liable for the $250 or $500 deductible;
however, you can recover that amount from the negligent
driver that caused the accident.

If your accident is a slight “fender bender” and you have suffered
no personal injuries and the property damage is minimal,
the driver who caused the accident may beg you not to call the
police or report the accident to the insurance companies for
fear his insurance premiums will skyrocket. Even if you agree
to this at the accident scene, ask to see the other driver’s insurance
information and write down the name of the insurance
company, the policy number, and the name and phone number
of the agent. Also ask to see the registration to verify that the
person who hit you does indeed own the vehicle. If the person
who hit you is not the registered owner, write down the information
on the registration regarding the registered owner and
her address. Also write down the year, make, model, and color
of the vehicle, as well as the license plate number.

Frequently a driver doesn’t want you to call the police and
asks to work it out among yourselves because he doesn’t have
any insurance or is driving on a suspended license. However,
if the other driver does in fact have insurance and you don’t
believe you were injured, a day or two later you may wake up
with a stiff neck, back, and shoulders—typical soft tissue injuries
that will require at least a doctor’s evaluation and probably
four to six weeks of physical therapy. What are the chances
that the other driver will pay out of his own pocket not only the
costs of fixing your car (which are probably considerably more
expensive to repair than you thought they would be), but also
the medical costs you incurred?

In such a case, you will need to report the accident to your
own insurance company (if you haven’t already) and to the
other driver’s insurance company, despite his earlier protestations
that he would take care of the expenses out of his
own pocket. Keep in mind that if there has been any personal
injury or death arising from the accident, or property damage
in excess of $750, the law requires that a form (SR-1) must be
filed with the Department of Motor Vehicles within 10 days of
the accident.

DO YOU REALLY NEED A LAWYER?

If your case is a typical fender bender that results only in
damage to your car, you may be able to handle the claim on your
own. However, if a day or two after the accident you feel some
stiffness in your neck, back, and shoulders, you should make
an appointment with your doctor or chiropractor for a checkup
and see whether you suffered any soft-tissue injuries as a result
of the accident. If you have such symptoms, the doctor may
prescribe a course of physical therapy for you. At this point, the
insurance adjuster, who was so friendly and nice to you, and
so quick to get your car fixed, will now take a more adversarial
attitude with you. The adjuster may claim that when you talked
to her, you didn’t have any problems in your neck, back, and
shoulders and you’re making it up to pad your claim.

If your injuries are relatively minor, you may still wish to
pursue the case on your own and negotiate with the insurance
adjuster. In the typical automobile accident involving moderate
damage to the car and minor whiplash or other soft-tissue injuries
to the victim, insurance companies generally use a formula
to compute the amount of damages they will pay. Insurance
companies will usually take the amount of medical expenses,
multiply that by two or three times to determine “pain and suffering,”
add the amount of lost wages and property damage to
that figure, and presto!—you have a settlement offer.

If you cannot come to a settlement agreement with the
adjuster, you can sue in small claims court. If you suffer personal
injury in addition to the damage to your car, you would
be well served by making an appointment with an experienced
personal injury lawyer to get a better idea of how much your
case may be worth. Your damages may be more severe than
you think and you may find yourself agreeing to let the lawyer
handle the matter for you.

In the beginning, the insurance adjuster will be kind and
nice to you, get your car fixed promptly and pay for a rental car,
and may even pay for your doctor’s initial visit. The adjuster
will add up these bills, include a small amount for your pain
and suffering, and make you an offer to settle the claim. Don’t
be fooled by the adjuster’s kindness. She is trying to settle the
claim as quickly as possible for as little as possible. If you mention
the possibility of having a lawyer review the case to see if
the settlement offer is fair, the insurance adjuster will tell you
that you don’t need to see a lawyer, that the adjuster is being
fair with you, and the lawyer’s fees will be coming out of your
pocket so you will end up with less money in the long run. Don’t
fall for the insurance adjuster’s line. Studies show that persons
represented by a lawyer end up with more money in their pockets
after the case is settled or a jury award is obtained than
people who represent themselves, and this is after the lawyer’s
fee has been paid from the settlement or award.

SUING IN SMALL CLAIMS COURT

California small claims court lets you sue for up to $10,000.00.
If your case is valued at $10,000 or below, there are a number
of reasons not to hire a lawyer but to handle the matter yourself.
First of all, it may be difficult to find a lawyer to take a case
that is only worth $10,000. Second, a small claims court trial
takes place only a month or two after filing the complaint with
the court and serving the court documents on the defendant.
Compare this with being represented by a lawyer, in which
event the case may drag on for months, even a year or more,
and you will not be significantly better than if you had sued the
guilty party in small claims court.