San Diego Injury Law Blog

The new year will bring new laws to all California drivers. Just as the CHP is reporting that many Californians are ignoring the 6-month-old ban on using cell phones without a hands-free device - 42,000 citations have been issued - a few new laws will begin tomorrow.

• No text messaging while driving. This one seems like a no-brainer, but one-handed text messaging has become an epidemic on California roads, and now we have a law that bans it.

• GPS devises that are affixed to the windshield must be placed at the lower left hand corner of the window.

• Calling 911 for non-emergency purposes may now result in a fine.

• Drivers 18 and under may not use a cell phone at all while driving. (This law actually went into effect last July but it's worth mentioning.)

For more on these new driving laws and others click here (.pdf).

In recent years there has been a raging debate about what is the best age to allow a person to obtain a driver's license. For teenagers, it is a rite of passage to get a driver's license, but in increasing numbers teen drivers are causing mayhem on the roads. While road fatalities have dropped in the last twenty years, deaths involving newly licensed drivers have been on the increase. In fact, highway safety specialists have called it a "silent epidemic."

Case in point: On Sunday, a Ramona woman named Melissa Jean Day was hit head on while driving on Route 67 in Poway. The accident occurred when a pickup truck driven by a 17-year-old boy (with a 15-year-old passenger) hit a curb, then drove his truck across the center lane and striking Day's car. Day died in the accident, and her two daughters, ages 11 and 14, were injured. A truly, truly tragic accident.

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According to the Insurance Institute for Highway Safety delaying the age at which drivers are licensed saves lives. Most European countries, as well as Japan, China, Brazil and Russia do not license drivers until age 18. Delaying the age, the argument goes, allows teens to mature before they get behind the wheel. No doubt it would save a lot of lives.

The Escondido injury and accident attorneys at Walton Law Firm LLP represent individuals who have been injured by car accidents, defective products, construction accidents, dog bites, and other cases involving negligence, including cases of wrongful death.

FACTS: Last Monday, the passenger of a pick-up truck was ejected from the vehicle when the speeding truck lost control on eastbound Interstate 8 and rolled down an embankment. Rain was likely a factor. The passenger, who was not wearing a seat belt, died in the accident. Walton Law Firm LLP is currently litigating a case that is factually very similar to this one.

LIABILITY ANALYSIS: This type of accident raises several issues related to liability. First, the passenger's surviving heirs would have a wrongful death case against the driver of the pick-up truck for negligent driving. Since it was a single car accident, it was reportedly traveling 85 mph, and it was raining, the police have probably attributed fault to the driver for operating the vehicle at an unsafe speed in rainy conditions. There may also be a negligent maintenance theory as the tire tread on the vehicle was considered to be lower than the recommended amount.

A wrongful death case, if proven, would entitle the heirs to the loss of love, society, companionship, and support of the victim.

Other potential avenues of liability could be a case against car manufacturer for product defects or against the State of California for negligent road maintenance (the presence of a guardrail, etc.), but those claims are unlikely considering the circumstances of this accident. From initial reports, it appears to be the result of unsafe driving on a rainy road.

The victim’s failure to be wearing a seatbelt will likely be the subject of major debate if any claims were made. No doubt the insurance company for the driver will argue that had a seatbelt been worn the woman would not have been ejected, and indeed may still be alive.

In a narrow 4 to 3 decision, the California Supreme Court has elected to narrow the personal injury immunity provided under the "Good Samaritan" statute, Health & Safety Code § 1799.102. In a poorly decided opinion, Van Horn v. Watson, S152360, a slim majority of the California Supreme Court held that § 1799.102's immunity provisions apply only to those who render medical care at the scene of a medical emergency despite the plain language of the statute providing no such limitation.

Section 1799.102 provides, in pertinent part, “No person who in good faith, and not for
compensation, renders emergency care at the scene of an emergency shall be liable
for any civil damages resulting from any act or omission."

A well-reasoned dissenting opinion, written by Justice Baxter, was distressed that the majority saw fit to re-write the statute. An act which Justice Baxter and the other two disenting justices felt would cause citizens to withhold assistance at the scene of an emergency for fear of civil liability. As noted by Justice Baxter, the majority's opinion could result in absurd results where someone who risks their own life to save someone could face civil liability, while a person who had no idea what they were doing, could be immune from liability for rendering harmful medical care.

Hopefully, the Legislature will address this poor decision and re-write § 1799.102 to specifically provide immunity for rendering any form of emergency care at the scene of an emergency, whether it is medical in nature or not.

FACTS: Last September 52-year-old Theodore Angle was struck and killed by an SUV while jogging at the intersection of Via Cordoba and Redhawk Parkway in Temecula. The SUV was turning onto Redhawk from Via Cordoba when it struck Angle.

Allegations were made that the intersection was dangerous when turning left from Via Cordoba, because traffic on Redhawk blocks the line of sight for those turning right. Angle’s neighbor sent a letter to the City Council commenting on the dangerousness of the intersection, and recommending changes. Last week, Temecula's Public and Traffic Safety Commission vote against making significant changes to the intersection.

It was stated by the city's engineer that there have only been two accidents at the intersection since 2004, and also stated that proposed changes could actually make the intersection more dangerous.

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LIABILITY ANALYSIS: Public entitles such as the City of Temecula are protected by under a roadway design immunity at Government Code section 830.6 if the plan or design of the road if the design caused the accident, if it was approved by an employee authorized to make such decisions, and if there is "substantial evidence" that supports the reasonableness of the plan. The burden is on the city to prove the immunity applies.

The immunity may be lost if the plan or design has changed due to conditions, was aware of the change, and failed to take corrective action. The injured person must then show that the plan or design had become dangerous because of the change in conditions, that the public entity had actual or constructive notice of the change, and the public entity had time to obtain the funds to correct the problem.

If the case involves traffic signals, signs or markings, the city may be liable for failure to provide an adequate warning sign if one was necessary to warn of a danger that is not reasonably apparent.

The City of Temecula would only be liable if the above-referenced conditions were met. Since there were so few accidents involving the intersection, liability seems difficult. However, if the city had been on notice of the dangers created by the conditions leading to this unfortunate fatality, and failed to take appropriate action, there may be a viable case. The immunities would have to be overcome, which is no easy task.

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Want your case analyzed? The San Diego injury lawyers at Walton Law Firm LLP provides a free consultation on all cases. Please call (866) 607-1325 or fill out an online questionnaire.

FACTS: A 16-year-old female student as Scripps Ranch High School was accidentally run over in the high school’s parking lot. According to reports, the victim and other students were socializing in the parking lot just after school, apparently sitting on the asphalt. A 16-year-old male student then got into his car, started the engine, and proceeded to drive away. It is unclear what happened next, but apparently several of the victim’s friends were able to move out of the way, but not the victim, who was run over by male student driver.

Sadly, the girl was seriously injured. According the news reports, she suffered internal injuries, including a lacerated liver, and facial trauma.

LIABILITY ANALYSIS: General tort principles would apply to a case such as this. The male driver would be liable for any and all damages caused by his negligence, but that liability would be reduced by the comparative fault of the victim, if any.

Assuming negligence on the part of the driver, the damages would likely be limited to his auto insurance policy. As a minor, his parents could be held liable for additional sums, but that liability would probably be limited to $25,000 under California Civil Code §1714.1.

The school is probably not exposed to liability, unless it could be shown there was some wrongdoing on its part.

Walton Law Firm LLP represents vitims of personal injury throughout San Diego County. Contingency fee arrangements available and consultations are always free.

FACTS: During a routine traffic stop in East San Diego County, police discovered an elderly woman bound and gagged in the back seat of the Dodge Magnum. According to reports, 75-year-old Natalie Vinje was kidnapped from her home on Friday night, and bound with duct tape. It was discovered that she had been beaten, and police speculate she may have been on the way to her death.

Police say one of the suspects arrested in the crime worked for a carpet company and sold the victim an vacuum cleaner on Monday. After he had performed work for the victim, he returned later that evening with accomplices to commit the crime. Three people have been arrested.
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LEGAL ANALYSIS: The three charged in the crime will face criminal charges, but does Ms. Vinje have a civil case for damages against the carpet cleaning company that apparently employed the kidnapper? Maybe. Typically, employers are only liable for the negligent acts of their employees that committed in the course and scope of their employment, but not liable for an employee’s intentional criminal acts. The employer could be liable, however, if it knew or should have known that its employer had a propensity to commit crimes like the one here. That can only be determined after a thorough investigation, such as an examination of criminal records, and interviews with management.

When attorneys get phone calls on serious auto accident cases the first thing they think of is insurance coverage. It's not just that they're wondering if there is a deep pocket - they are - but they're primarily wondering if there is much of a pocket there at all.

As you probably know, California requires that all drivers in the state maintain a policy of insurance of at least $15,000 per person, $30,000 per accident. Because that is the lowest amount of coverage a driver can possess and still drive legally in the state, it is also the cheapest... and many, many drivers buy it for that reason.

What does that mean? If you are in an accident that is not your fault, and the driver that hit you has a $15,000/$30,000 policy, the most you can collect from that insurance policy is $15,000 no matter how severe your injuries are. If you broke a leg and incurred $18,000 in medical bills, and missed one month of work at $4,000, and endured a tremendous amount of pain and suffering and inconvenience, your claim against the bad driver's insurance policy will be limited to $15,000 - not even enough to cover your financial losses.

This is where uninsured and underinsured motorist coverage comes in. A UM or UIM policy is a policy that you purchase from your own insurance company which will cover you in the claims like the one outlined above. Whenever your losses exceed the available insurance limits (of if the bad driver had no insurance at all), your UM or UIM policy will cover the losses above and beyond the available coverage.

There is one caveat: your UM or UIM policy must exceed that of the driver that hit you. If, for example, you purchased a UIM policy of $15,000/$30,000 and then were injured by a driver that had a liability policy of the same amount, you would not be able to tap into the UIM policy if your damages exceed the $15,000 limits. Under those facts, you must maintain a UM or UIM policy of more than $15,000/$30,000 to collect money above-and-beyond the bad driver’s policy.

The important points. First, always purchase UM and UIM coverage. If you don't have it presently, call your insurance broker and get a quote. Second, make sure you purchase the highest amount of UM or UIM coverage you can afford, or the highest the insurance company will sell you. This coverage will protect you against all bad drivers in the world, many of whom are insufficiently insured to cover the damages they will cause.

If you have any questions about making a claim for UM or UIM coverage, feel free to give us a call at (866) 607-1325 or fill out our online questionnaire.

Auto accidents in San Diego County claimed the lives of three people over the Thanksgiving holiday weekend, two fewer than killed during the same weekend last year. In Balboa Park, two people did in a solo-car crash, and 51-year-old Ilija Petrovich of Carlsbad was killed in a motorcycle accident in Pauma Valley.

California CHP also reported 119 DUI arrests over the weekend.

San Diego personal injury lawyers Randy Walton and Scott Barber represent individuals who have been impacted by car accidents, defective products, spinal and brain injuries, construction accidents, malpractice, dog bites, and other cases involving negligence, including cases of wrongful death.