San Diego Injury Law Blog

Frank Rogozienski felt that something wasn't right. The judge in his divorce case kept ruling against him, including voiding a prenuptial agreement that cost Mr. Rogozienski $20 million in stock. Making matters worse, the presiding judge on the case refused to disclose any conflicts of interest he might have.

Mr. Rogozienski decided to conduct his own investigation into any conflicts of interest, and discovered that the judge, James Allen, had received a timeshare condominum during the pendency of the Rogozienski divorce case. A little more digging revealed that the friend that gave Allen the time share, received it from a San Diego lawyer named S. Michael Love. You know what's coming next. Attorney Love was the lawyer for Mr. Rogozienski's wife Shirley in the divorce proceedings.

After the divorce, Mr. Rogozienski sued Love and Allen for professional negligence. Allen, a lawyer who was sitting as a private judge, was held to have judicial immunity and protected from liability. Love on the other hand, was determined to be negligent by a San Diego jury and awarded Mr. Rogozienski $800,000 in attorney's fees. From news accounts, it doesn't sound like the jury was all that fond of Mr. Rogozieski. For his emotional distress damages he was awarded 1 dollar.

Both attorney Love and judge Allen are subject to a California State Bar investigation. Both have long histories in the San Diego legal community, and neither has been subject to a State Bar investigation before.

Source: San Diego Union Tribune

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

In 2005, several people were injured and killed when a documented gang member stole a tow truck from a commercial vehicle repair shop in Los Angeles County, and, while driving it away, lost control and drove up onto a sidewalk. The injured parties brought a lawsuit against the repair shop alleging that it was negligent for leaving the keys in the tow truck ignition, in an area known for high gang and vehicle theft activity. Apparently the thief simply had to start the vehicle and drive out an open gate.

The defendant repair shop brought a motion for summary judgment, to dismiss the case in its entirety, arguing that it owed no duty to the injured people, and that if it did, any negligence committed was not the cause of the injuries: a criminal intervener was. The court agreed and dismissed the case.

On appeal, the Second District noted that absent special circumstances, California courts have consistently have refused to impose a duty on owners or bailees of automobiles or ordinary pickup trucks who leave the key in the ignition of an unattended vehicle to prevent harm to third parties caused by a thief. The court went on to note several cases where "special circumstances" were found, highlighting cases were heavy equipment machinery was stolen and caused injury.

Ultimately, the appellate court reversed the trial court holding that:

[T]he tow truck was accessible to thieves in that it was parked in an area plagued by vehicle thefts, with the key in the ignition, in a position that permitted Bermudez to leave the facility through the unlocked and open gate. The totality of the circumstances “justifies the conclusion that the foreseeable risk of harm imposed is unreasonable, and that the defendant owner or one in charge of [the] vehicle has a duty to third persons in the class of the plaintiffs to refrain from subjecting them to such risk.

Read the entire case here (.pdf)

The injury and accident law firm of Walton Law Firm LLP represents individuals and families throughout San Diego County who have been impacted by negligence related car accidents, defective products, food poisoning, spinal and brain injuries, construction accidents, dog bites, and other personal injury cases.

Anthony Beninati was attending the iconic Burning Man Festival, when he fell into the fire at 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 Law Firm 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.

On December 19th, we wrote an article about a poorly decided California Supreme Court decision, Van Horn v. Watson, S152360, which held that California's Good Samaritan statute, Health & Safety Code § 1799.102, only provided immunity for persons providing emergency medical care at the scene of an accident or other emergency. The Court held that those who render emergency assistance, such as pulling a person from a burning car, are not immune from liability. We feel this was a poor decision by the Supreme Court and agree with the dissenting minority’s position that immunity should be provided to those who render emergency assistance as well.

At least three legislators, from both parties, agree and have introduced proposed legislation which would expand the Good Samaritan statute to provide immunity for those who render emergency assistance, even if the assistance is not medical in nature.

"As a [former] CHP commander, I rolled up on the scene of many accidents and very often people were there rendering help," said state Sen. John Benoit, R-Palm Desert, who has authored a bill challenging the Van Horn ruling. "We wouldn't want that type of thing to stop." Sen. Benoit is seeking to combine his proposed bill with one proposed by Assemblyman Mike Feuer, D-Los Angeles, the chairman of the Judiciary Committee and a former legal aid attorney. Another bill has been proposed by Assemblyman Anthony Adams, R-Hesperia.

Facts: An Escondido motorcyclist suffered serious injuries during the evening of January 13th, when the Suzuki motorcycle he was riding struck the front hood of a Toyota Camry. According to reports, the Camry backed out of a driveway on West 15th Ave. in Escondido and into the path of the rider, causing him serious injuries, including a broken neck and leg injuries. The accident is still under investigation, and anyone with information is asked to call Officer Scott Christenson at 760-839-4962.

Liability Analysis: On its face, this case seems fairly straightforward. The driver of the Camry has a duty to make sure the roadway is clear before exiting the driveway. If he failed to do so, as it appears, he would be liable to the injured rider for the full extent of his damages. If, on the other hand, the motorcyclist was traveling at a high rate of speed, or did not have its lights on, it is possible that liability could fall to the rider, or that it could be shared. A reconstruction of the accident would have to be performed to determine liability.

The Escondido car accident lawyers at Walton Law Firm LLP represents individuals and families who have been impacted by car accidents, defective products, spinal and brain injuries, construction accidents, dog bites, and other cases involving negligence.

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.