San Diego Injury Law Blog

Anthony Beninati was attending the iconic Burning Man Festival, when he fell into the fire when the annual ritual of actually burning the “Burning Man” was performed. Beninati suffered burns in the incident, hired a lawyer, and sued the Burning Man promoter for personal injury damages, alleging it was negligent in the operation of the festival.

The trial court would have none of it, and dismissed the case on summary judgment. Beninati then appealed. Yesterday, California’s Court of Appeal, First District, affirmed the trial court, holding that the promoter owed no duty of care to Beninati, and that Beninati was barred by the doctrine of primary assumption of risk.

The facts are actually pretty interesting. Beninati, who is a college educated man employed in real estate, was attending the festival for the third time. In his deposition, he testified that he attended to get away from his workaholic life, and get together with other people who shared his interests in art and spirituality. He planned on attending with his friend, who died in a motorcycle accident six weeks before the festival. Beninati decided to attend alone, and planned to place a photo of his deceased friend in the bonfire.

That’s when things went wrong.

As the fire died down, and Beninati slowly approached it, stopping at a spot where fire was on both sides of him. He threw his friend’s photo on the fire and watched it burn. He then took a few steps forward and tripped on something “solid," falling into the fire and badly burning his hands.

The appellate court considered all the facts, then ruled (correctly probably) that Beninati assumed the risks of what he was doing:

Once much of the material had burned, and the conflagration had subsided but was still actively burning, Beninati and others walked into the fire. At that point, the risk of stumbling on buried fire debris, including the cables which necessarily had collapsed along with the sculpture, was an obvious and inherent one. Thus, the risk of falling and being burned by the flames or hot ash was inherent, obvious, and necessary to the event, and Beninati assumed such risk.

To read the entire opinion click here. (.pdf)

The San Diego personal injury lawyers at Walton Barber LLP represent individuals injured in all types of accidents, including car accidents, motorcycle accidents, construction accident, slip and falls, dog bites, and malpractice matters. Call (790) 607-1325 for a free consultation, or fill out an online contact form.

A 31-year-old emergency room technician was arrested last week for raping a woman inside the emergency room at Mission Hospital in Mission Viejo. The woman was reportedly too intoxicated to resist.

According to reports, police received a 911 call from inside the hospital from the woman, who said she believed she had been raped. Police responded, and an examination produced DNA that was later linked to EMT Jesse Karin Pena, who lives in Winchester. Pena was arrested and is expected to appear in court Monday morning.

"This is a hideous crime," said Jim Amormino, spokesman for the Orange County Sheriff's Department. "One should expect to get treated and this is the last thing you have to worry about."

Pena worked only three times at Mission Hospital in October and November 2008, and also in February. Anyone with information, or who might also be a victim, is requested to contact Sheriff's officials at 866-847-6273.

The Orange County injury lawyers at Walton Barber LLP represent individuals and families who have been victimized by the conduct of others. Call (866) 607-1325 for a free consultation.

Almost three years ago, Jim Halverson of Danville suffered fatal injuries when his pool's two-piece kettle style filter exploded and struck him in the head. Since that time, his wife Sue has made it her mission to make sure this kind of terrible accident doesn't happen again.

Sue has started a website www.poolsafetyadvocates.org, to highlight and warn about the dangers of this particular pool filter, which is being used on hundreds of pools today. The Consumer Product Safety Commission, which tracks such explosion incidents, says that there have been at least 22 similar incidents since 1982, for of those resulting in death.

The two-piece pool filter at issue here is held together by a clamping system that critics say loosens over time. This creates a weakness between the filter pieces, creating a volatile danger when pressure builds.

"The original design is so dangerous," said Michael Workman, a North Carolina-based attorney, "(Manufacturers) would say it is easier to clean if you just have to take off the clamp."

Last November, Sue received an undisclosed settlement of a lawsuit against the pool filter manufacturer.

Walton Barber LLP represents individuals who have been harmed by defective and/or unsafe products. Please call for a free and confidential consultation.

Typically, active duty military personnel cannot bring a legal action against the military for injuries caused by military decisions, or other military-related activities. But the House Judiciary Committee is considering a bill that would allow military families hold the government accountable for non-combat related personal injuries.

Col. Adele Connell tried to bring a claim against Walter Reed Army Medical Center when her physician mistakenly operated on the wrong breast during a cancer surgery, and removed healthy tissue and lymph nodes. The negligent surgery caused her become disfigured. Her medical malpractice case was dismissed under the Feres Doctrine, which prohibits such claims. The congressional bill would change that.

"These last eight months have been unbelievably difficult," said Connell, who has served for more than 30 years. "The reason I am going public is that I want to try to improve the military for soldiers serving all over the world."

The legislation passes, it would be retroactive to 1997, potentially affecting the outcome of several pending lawsuits.

The malpractice lawyers at Walton Barber LLP represent individuals and families who have been impacted by medical negligence and other negligence related accidents. Cases are taken on a contingency fee, and all consultations are free and confidential.

A CalTrans subcontractor was seriously injured yesterday while parked on the shoulder of Route 125 near Grossmont College Drive in El Cajon. According to reports, the injured man was performing work for Cal Trans, when an out-of-control pickup truck driving southbound on the 125 veered off the road and into the worker, who was thrown 30 feet in the air. The pickup driver was allegedly speeding, and was also cited for driving without a license.

The CHP said that accident occurred at approximately 2:25 p.m. The injured worker was taken by ambulance to a nearby hospital where he is being treated for several fractures and internal injuries. He is expected to survive.

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The San Diego car accident lawyers at Walton Barber LLP represent individuals and families who have been injured in all types of automobile accidents. Call (866) 607-1325 for a free consultation.

The Federal Drug Administration (FDA) has announced that consumers should stop using Zicam nasal gel and swabs as they can permanently damage user's sense of smell. Zicam is a homeopathic cold remedy which is manufactured by Matrixx Initiative of Scottsdale, Arizona. The announcement does not cover other Zicam products such as their tablets and liquid forms.

Since 1999, when Zicam was first introduced to the market, the FDA has received 130 reports of users of Zicam losing their sense of smell. In 2006, Matrixx paid $12 to settle 340 lawsuits filed by consumers who alleged they had lost their sense of smell. That amounts to just over $35,000 per lawsuit. Hundreds more lawsuits have been filed since then.

According to scientists, Zicam contains zinc gluconate which is an acid. When users would inhale the product, the zinc gluconate would burn the olfactory receptors at the top of the nose causing a permanent loss of smell.

Matrixx denied that Zicam has caused any harm but has voluntarily withdrawn its Cold Remedy Swabs and Cold Remedy Gel from the market.

Walton Barber LLP represents individuals who have been harmed by defective and/or unsafe products. Walton Barber LLP has already represented one individual who lost her sense of smell from using Zicam. If you have suffered a loss of your sense of smell due to the use of Zicam Cold Remedy Swabs or Cold Remedy Gel, please call us for a free confidential consultation.

The World Health Organization issued a report on worldwide road safety and found that a majority of the world's countries lack adequate laws to confront the growing problem of traffic injuries and deaths. According to the study, severe injuries caused by traffic accidents are the world's ninth leading cause of death.

The study, which was funded by Bloomberg Philanthropies, also found that well over 1 million people die annually in car accidents, and that more than 20 million are injured. Nearly half of the fatalities involve pedestrians, bicyclists, and motorcycles.

“Very few people realize that this is one of the leading causes of death in the world, and the leading cause of death for young people,” said Dr. Etienne Krug, director of injury and violence prevention programs at WHO. “Because it happens one by one, here and there and not in mass events, it gets less attention.”

The report is based on data from a 2008 survey of 178 countries, representing 98 percent of the world’s population.

To view the entire study click here. (Large .pdf file)

The accident and injury lawyers at Walton Barber LLP represent individuals and families who have been injured in all types of accidents, including car accidents, motorcycle accidents, trucking accidents, bicycle accidents, construction accident. Call (866) 607-1325 for a free consultation.

In Munson v. Del Taco, the Supreme Court of California has held that a plaintiff does not need to prove "intentional discrimination" to obtain the remedies available under the Unruh Civil Rights Act ("Unruh Act") for violations of the Americans with Disabilities Act ("ADA").

In California, individuals may sue for violations of the ADA under the Unruh Act. (Civil Code § 51) The Unruh Act was enacted in 1905 to provide the citizens of California with full and equal treatment in places of public accommodation. In 1992 the California legislature amended the Unruh Act to specifically provide that a violation of the ADA also constitutes a violation of the Unruh Act, thus providing claimants with the remedies provided by Civil Code § 52. These remedies include up to a maximum of three times the amount of actual damage but in no case less than $4,000 per violation, plus attorney's fees. (Civil Code § 51(f))

Prior to Munson, California courts have held that a claimant must establish that the ADA discrimination was intentional before being permitted to obtain the remedies provided by § 52. Following an analysis of both the Unruh Act and the ADA, the Supreme Court of California held that, "a plaintiff proceeding under section 51, subdivision (f) may obtain statutory damages on proof of an ADA access violation without the need to demonstrate additionally that the discrimination was intentional."

Walton Barber LLP defends property owners, landlords and business owners against claims of ADA violations. If you have been sued or served with a notice of intent to sue for a violation of the ADA, please contact us for a confidential consultation.

You've seen the ads, "my personal injury lawyer got me ___ millions of dollars." Or the lawyer on TV with the slicked back hair, promising to win your case "with little to no money down." I thought this lawyer ad was pretty funny. Not because of the content, but because of the background. Watch the exploding cars flying though the air. If you're in this type of accident, please give us a call [if you survive, that is]:

The car accident attorneys at Walton Barber LLP represent individuals and families who have been impacted by accidental injuries and death. Call (866) 607-1325 for a free consultation.

The California Highway Patrol is looking for a hit-and-run driver that caused a multiple vehicle crash that killed three people, including an 11-year-old girl. The accident occurred last Tuesday afternoon on Highway 74 in Riverside County.

According to witnesses, an Acura or Honda was tailgating a Ford Fusion then tried to pass it, sideswiping the Ford and pushing it into an Audi. That caused the Audi to strike a Mitsubishi Montero head on. The driver of the Acura or Honda, which had tinted windows and spinner wheels, was described as a man in his early 20s with a tattoo on his left forearm.

Two of the three people killed were Cedric Page and his niece 11-year-old Zaria Williams. Williams was going to graduate from the fifth grade on June 10.

Any person with information about the hit-and-run crash is asked to call the CHP at (951) 769-2000.

MSNBC is out with an article about the dangers posed by heavy, drowsy truck drivers. Apparently a growing number of trucking firms are screening drivers who are considered at risk for sleep apnea, and then pay to monitor and treat divers who have the condition.

Sleep scientists at Harvard University have renewed a call for federal regulations that requires mandatory testing of all obese drivers. These researches believe that there is a strong link between obese drivers and truck crashes that kill more than 5,200 and injure over than 100,000.

“Screenings of truck drivers will be ineffective unless they are federally mandated or required by employers,” said researcher Dr. Stefanos N. Kales.

There have been numerous reports of truck accident fatalities due to drivers with sleep apnea. In May 2005, a Kansas mother and her 10-month-old child were killed when a truck collided with their SUV, and a Tennessee Highway Patrol officer died in 2000 when a truck struck his police car as he guarded a highway work zone. The drivers of both we known to have suffered from sleep apnea. Some studies state that nearly one in three drivers has sleep apnea, and that sleep apnea increases the risk of an accident by two to seven times.

Federal regulators have been considering a new regulation for more than a year that would require screeing drivers whose body mass index exceeds 30. No action has yet been taken on the new rule.

The San Diego personal injury lawyers at Walton Barber LLP represent individuals and families who have been injured in all types of accidents, including car accidents, motorcycle accidents, trucking accidents, bicycle accidents, construction accident. Call (866) 607-1325 for a free consultation.

If your negligent driving causes a car accident in Fallbrook, and police or fire responds, your insurance company is going to get a bill from the city. This new fee goes into effect at the end of this month, and is designed to provide some revenue to cash-strapped local governments.

Depending on the severity of the auto accident, at-fault drivers will receive a bill from $435 to $2,100, which was calculated based on the hourly labor and equipment costs for public safety officers. If firefighters simply provide traffic control, the bill will be on the lower end, if the assistance is more involved, such as extracting victims from badly damaged vehicles, then the bill will be on the higher end.

Opponents of the new ordinance contend that the fee represents "double taxation," since existing property taxes presumably already cover these services. But most of the opposition, it is no surprise, has come from the insurance companies themselves, who threaten (as usual) that the rates for all will rise under such laws.

The double-taxation argument does have some teeth. Several states have already banned such a "crash tax," and a pending bill in Sacramento aims to do the same in California.

The personal injury lawyers at Walton Barber LLP represent individuals and families who have been injured in car motorcycle accidents, and all other accident and injury matters. Call (760) 607-1325 for a free consultation.