San Diego Injury Law Blog

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 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.

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.

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 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.

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.

Here's a good story. As Capt. Thomas Schwabenbauer was on his way to the Marine Combat Center from San Diego last Sunday, he heard a crash as he was traveling on westbound I-10. He looked up to to see an SUV up in the air.

"The first thing I remember thinking was I knew I had to get over there as fast as possible. It was go time," said Schwabenbauer.

The SUV was had a tire failure and rolled several times before stopping, upside down in the right lane.

"When I got to the side of the road, I saw there was a lady inside," he said. "I jumped inside and got her seat belt off, but I noticed her leg was stuck between the car and the ground. We had to rock the car up in order to pull her out."

Once she was removed, Schwabenbauer could see the severity of her injuries, which included major damage to her lower leg. He then used her belt as a tourniquet to stop the bleeding, and comforted the woman to keep her from going into shock.

Schwabenbauer had medical training in the Marine Corp, and used that knowledge at the scene. Authorities have credited Schwabenauer, and his Marine friend Lance Cpl. James Nielsen, with saving the woman's life.

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

A woman became paralyzed on a Continental flight after she disobeyed warnings to remain seated during a turbulent flight. According to reports, the woman got up and went to the bathroom despite the warning, and was thrown to the ceiling when the plane hit turbulence.

As a result of the injury, the woman suffered a major spinal cord injury, including fractures to her C1 and C2 vertebrae. Known has a "hangman's fracture," she now is paralyzed from her chest down. This the same type of injury suffered by Christopher Reeves. It is unknown whether she will ever walk again.

Two other people were injured on the flight, including a passenger that suffered a torn ligament in her knee.

The Oceanside personal injury lawyers at Walton Barber LLP represent individuals and families throughout San Diego County who have been injured in accidents, including car crashes, motorcycle accidents, bicycle accidents, construction accident, and all other personal injury matters.

The New York Times is out with a story about independent medical exams - or IMEs - in the state's beleaguered worker's compensation system. The article more or less confirms what injury attorneys all over the county already know: there is nothing "independent" about IMEs.

Generally speaking, an insurance company in a personal injury or workers compensation claim has a right to conduct a medical exam of the claimant to confirm the injuries are legitimate. But what usually happens is the doctor - hired by the insurance company - will issue a report that either dispute, denies, or down-plays the injury.

The Times article (which can be found here) starts with the story of plumber, injured on the job, who seeks more time under his work comp claim. The doctor conducts an exam, and appears to confirm all of the plumber's injuries and complaints of pain. But when the doctor issued the report, it reported the plumber had no injuries. According to the doctor, he couldn't be truthful because it would hurt is standing with the insurance company:

“If you did a truly pure report,” the doctor said, “you’d be out on your ears and the insurers wouldn’t pay for it. You have to give them what they want, or you’re in Florida. That’s the game, baby.”

So who gets screwed? The injured person, now twice victimized. While this doctor is in New York, he has many brethren in San Diego. There are IME doctors here who make hundreds of thousands of dollars working for the same insurance companies, and who routinely issues reports that dispute the injured party's claims, or disparage the character of the victim.

I had a client who had her tongue pierced. She suffered a neck injury in a car accident and was sent to an IME with a particularly notorious San Diego defense doctor. When the report came back, the doctor spent a paragraph talking about the black spot on the x-ray with turned out to be a piece of jewelry in the woman's tongue. He went on to call her a malingerer (a liar), and concluded that she had no discernable injury.

What did a tongue piercing have to do with her neck injury? Nothing, of course. It was just this doctor's way of diminishing the character of the patient before him, hoping that somewhere down the road, either an insurance adjuster or jury, will judge her wrongly and reduce the value of her claim. I guess “that’s the game, baby,” but it is a pathetic game indeed.

The U.S. Supreme Court dismissed an appeal by cigarette manufacturer Philip Morris to overturn a state verdict of $79.9 million awarded to the widow of a longtime smoker by an Oregon jury. Legal analysts believe the ruling may mark a shift in the court, who most consider to be decidedly "pro business" it its rulings.

The court's ruling ended a decade-long battle for Mayola Williams, the widow of Jess Williams, a Portland Oregon janitor and smoker who died of lung cancer. In the product liability lawsuit, the family argued that Jesse, who began smoking in the 1950s, believed that cigarettes would not harm his health because of representations made by the cigarette company. A state jury agreed, awarding Mayola over $800,000 in compensatory damages, and $79.5 million in punitive damages.

Organized business interests had hoped the high court would send a strong warning to state courts about excessive punitive awards, and clarify a constitutional limit, but that was not to be the case.

The accident and injury attorneys at Walton Barber LLP represent individuals who have been injured in automobile accidents, motorcycle accidents, insurance disputes, products liability cases and all other personal injury cases.

RAMONA, CA - A 25-year-old mother was killed yesterday on Route 67 after her car was struck by out of control racers. Alexandria Drake of Chula Vista was driving her Volvo near Quail Rock Road when she was struck by a speeding Jaguar that had veered into oncoming traffic.

According to witnesses, the Jaguar was a racing a white Mercedes Benz when it lost control. Several other cars and a motorcycle crashed when trying to avoid the Jaguar, which also crashed. In addition to the fatality, three other people suffered injuries, including the driver of the Jaguar. Ms. Drake's three-month old child was strapped in the backseat and was not hurt.

Police are trying to identify the driver of the white Mercedes, who did not stop. Anyone with information is encouraged to call the CHP at (619) 401-2000.

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The San Diego accident attorneys at Walton Barber LLP represent victims of auto accidents, motorcycle accident, construction accidents, and all other injury cases, including cases involving wrongful death. Call (760) 607-1325 or fill out an online form for a free and confidential consultation.

A Temecula boy who fell from a play structure at a local Burger King restaurant was awarded a $20 million settlement. Jacob Buckett, now 12, suffered a traumatic brain injury when he fell at a location in the play structure where there was no cushioned flooring. According to reports, the boy suffered damage to his parietal lobe, his left front lobe, and to his lungs when he fell.

Jacob was hospitalized for more than a month, which was followed by six weeks at a rehabilitation facility. Due to the size of the personal injury settlement, it is very likely that Jacob suffered permanent brain damage that will require attention for the long term.

Several defendants were named in the lawsuit arising from the accident, including the franchisee, the parent company, and the company that installed the playground equipment. It is unclear whether one defendant or all contributed to the settlement.

The Temecula injury lawyers at Walton Barber LLP represent accident victims throughout Southern California in cases of personal injury and wrongful death.

An Italian tourist is under arrest for vehicular manslaughter after his car clipped another car on southbound I-5 last night causing a major auto accident. According to reports, a PT Cruiser being driven by Alberto Allari drifted across lanes and struck an Toyota RAV-4, causing the Toyota to lose control and roll several times. Leslie Sheila Foster, a resident of Valley Center and a passenger in the RAV-4, died at the scene.

Interestingly, police have stated that it is not believed that alcohol or speed played a roll in the accident, though Allari was arrested at the scene under allegations of vehicular manslaughter. While vehicular manslaughter can be charged against any person who violates a traffic law, and that violation results in death, it is typically reserved for those who are driving under the influence, speeding, or with a history of reckless or negligent driving.

This tragic case will be one to follow.

The San Diego car accident attorneys at Walton Barber LLP represent individuals and families who have injured or killed in motor vehicle accidents. Consultations are free and confidential.

A patient with a serious head injury can appear "deceivingly normal at first," according to Dr. Carmelo Graffagnino of Duke University. Even though the injury may appear minor, and not particularly painful, over-time it can develop into a serious and irreversible injury.

That may be what is happening to actress Natasha Richardson, who is reportedly in very serious condition in a New York hospital after suffering a fall while skiing. According to reports, the fall occurred on a beginner's slope, and appeared to cause no serious harm at the time.

According to doctors, minor head trauma can cause an epidural hemorrhage, where blood gets trapped between the skull and the layer of skin between the bone and the dura matter. Blood flowing from the hemorrhage then builds and punctures the dura.

Dr. Graffagnino says the initial fall or injury doesn't have to be hard at all, and the delay in symptoms can range from five minutes to three hours after the accident.

For more on Traumatic Brain Injuries visit MayoClinic.com.

The San Diego brain injury law firm of Walton Barber LLP represents individuals and families throughout San Diego County, including Chula Vista, El Cajon, Oceanside, and Escondido who have been impacted by traumatic brain injuries. Call today for a free and confidential consultation.

A dramatic car accident on southbound SR 163 claimed the life of a motorcyclist. According to witnesses, an unidentified pickup truck abruptly changed lanes, cutting off a Ford Ranger pickup, causing it to lose control and veer across lanes and into another car. The Ranger then careened into a motorcyclist, throwing the rider over the center divider and into northbound traffic where he was struck by a car and killed.

The accident occurred at around 4:45 p.m. near the Kearney Villa Road exit. The pickup that started the chain of events did not stop.

The rider of the motorcycle was identified as Michael Anthony Freitas of Riverside.

The San Diego motorcycle accident attorneys at Walton Barber LLP represent individuals and families who have been involved in auto and motorcycle accidents. Attorney Scott Barber has been a street and dirt motorcycle rider for more than 20 years. Call for a free and confidential consultation.

After a car accident, it's not uncommon for the victims to call our office months later with complaints about their insurance claim. Usually the complaint is that the insurance adjuster is a jerk, won’t return calls, won’t make an offer, or simply is denying liability altogether. Clients then call us to ask if this is normal.

I don’t know if it’s “normal,” but it sure is prevalent. One would think that the insurance companies would do whatever it takes to prevent a person from contacting a lawyer after a personal injury claim, but every year our office takes over the cases of many people who simply want to avoid any further dealings with the insurance company.

Is there any way to make the process easier? Not really. But after a car accident, there are certain obligations under California law that insurance companies must follow:

• If it's your own insurance policy (such as an uninsured motorist claim), tell you of all benefits and coverages available to you.

• Open a claim file immediately and contact you within 15 days to appraise you of the status of the claim.

• Respond to phone calls or letter received by you within 15 days of receipt.

• Accept or deny the claim within 40 days after receiving documentation that the claim made is legitimate and supported by evidence.

• Offer a fair settlement, and pay it within 30 days.

The California Department of Insurance has an excellent manual that covers most issues that arise in an auto insurance claim (click here). Or, of course, you can call our office to answer any questions you might have. If, after an accident, the injuries are serious, then I believe it is important to get an attorney involved. The personal injury lawyers at Walton Barber LLP provide free consultations on all auto accident case.

Driving under the influence of alcohol is typically a man's domain. But a recent study has revealed that over the last decade, injurious or fatal drunk driving accidents involving female drivers has risen sharply in California, and dramatically in San Diego County, where serious injury-causing accidents among females between ages 21 and 24 has increased 124%.

"I was pretty surprised at the magnitude of the increase," said Stephen Bloch, a researcher with the auto club, whose study is based on 10 years of CHP data. He stressed that men still represent the large majority of alcohol-related crashes.

Click here to read the entire article.

The lawyers at Walton Barber LLP represent individuals and families who have injured in accidents, including car accidents, motorcycle accidents, bicycle accidents, construction accident, and all other personal injury matters. Consultations are free and confidential.

SOUTHERN CALIFORNIA - The City of Murrieta recently joined a growing number of cities by making automobile accident reports available online. Ten days after a car crash responded to by the Murrieta Police Department, any individual involved in the accident, and with a valid report number, can download the police report online for a $15 fee.

The Murrieta department is one of many cities using policereports.us. Other Southern California cities that currently used the online service are Anaheim, Buena Park, Fullerton, Indio, National City and Tustin.

In the last few days there has been a rash of car accidents involving pedestrians. The most serious occurred in Chula Vista where 45-year-old Peter Dicesare of Los Angeles drove his Jeep Wrangler into 75-year-old Ronald Seiler near the 3100 block of Main Street. Seiler was crossing Third Avenue when he was hit. He was taken to UC San Diego Medical Center where he died shortly after arriving. Alcohol is believed to have been a factor in the accident.

In Mira Mesa, a driver ran into a 51-year-old man on a bicycle. The victim was in a marked bike lane on Calle Cristobol when a 19-year-old driver hit the rear of the bike. The bicyclist was hospitalized with serious head and back injuries but is expected to recover. Alcohol is believed to have played a role in this accident as well.

In Pacific Beach, a woman suffered serious and life-threatening injuries when she was hit by a drunk driver as she tried to cross Mission Boulevard near Reed Avenue. The driver, Alan Mabrey, struck the pedestrian while he was turning left.

And in San Marcos, a 19-month-old boy was killed when he wandered from his home near Smilax Road. The driver, who was believed to be driving a black mid-size older model car with tinted windows, fled the scene. Anyone with information about this accident is encouraged to call the Sheriff's Department at 858-565-5200.

Mission Viejo, CA - Orange County authorities are investigating the death of 4-year-old Kayley Ishii who died in her home after climbing into a front-loading washing machine that was turned on by her 1-year-old brother. According to news reports, the little girl was inside the water-filled machine for approximately two minutes before she was found by her mother. She was transported to Mission Hospital Regional Medical Center where she later died.

This terrible tragedy is quickly gaining worldwide attention. Not simply because it is a monumental tragedy, but because of the circumstances. How could her 15-month-old brother have turned on the machine? There are conflicting reports, but the on/off button was apparently only 15-20 inches above ground. If it is true that the switch for turning the machine on is at a place where a toddler could reach it does that make the washing machine a defective product?

California law will hold a manufacture strictly liable for injuries caused by a product, if the product injures someone while being used as intended or in a reasonably foreseeable manner, it was defective when sold, and the defect caused the injury. If that is proven, the manufacturer has few defenses. Here, the manufacturer would argue that while it may be foreseeable a child would climb inside the machine, it was not foreseeable that another child would be present to turn the machine on. The manufacturer would also content that the parents bear some responsibility for the failure to monitor the children.

The parents, of course, would ask the question that many people are asking today: How could it be so easy for a 15-month-old child to turn on a machine that is known to be dangerous to children? There is no doubt this questions will be answered in the courts.

The law firm of Walton Barber LLP represent individuals and families throughout Southern California who have been impacted by negligence related accidents, defective products, food poisoning, spinal and brain injuries, construction accidents, dog bites, and other personal injury cases.

The investigation into the Salmonella outbreak that has sickened hundreds nationwide, and killed at least eight people, continues to develop. CBS news is airing the interview with Jonathan Prather, a former employee of the Georgia plant where the Salmonella outbreak originated. Prather tells a disturbing story of filthy plant conditions, including cockroach infestation, mops wash in sinks where peanuts are washed, rodent droppings, and most disturbing, a dead rat dry-roasting in the peanut area.

Here is the video:

Walton Barber LLP is evaluating Salmonella cases in all Southern California counties including Los Angeles, Orange, San Bernardino, San Diego, Riverside, and Imperial.

The American Association for Justice (AAJ) is out with a research report on the egregious ways insurance companies make money at the expense of consumers. Despite being an industry with trillions (yes, trillion with a “t”) in assets, and billions in profits, insurance companies engage in time-honored tricks of the trade to avoid paying claims.

In this report, the AAJ lists how some of America’s largest insurance companies such as Allstate and AIG have denied valid claims for the sake of profit, including employment practices where employees are given incentive bonuses to deny claims or make low-ball offers. It also includes instances of insurance carriers delaying claims in the hope the claimant will give up, or, in the case of long-term care insurance, die.

Anyone who has had to make a claim for insurance benefits is probably not surprised by these findings. Occasionally you’ll find people who are totally satisfied with their experience, but by far most people come away upset, confused, and angry. In fact, many of our auto accident clients come to us after a bad experience with the adjuster assigned to the claim. They feel they have no choice but to involve a lawyer.

Click here (.pdf) to read the entire report.

The accident and injury attorneys Walton Barber LLP represent individuals and families who have been involved in auto and motorcycle accidents, bicycle accidents, and most other accident claims.

The attorneys at Walton Barber LLP are currently evaluating cases of salmonella attributed to peanut butter products originating from a plant in Blakely, Georgia. A national outbreak of salmonella has sickened hundreds across the country, including 62 documented cases in California.

A lawsuit has already been filed in Minnesota involving the death of a 72-year-old woman, and more lawsuits are expected to be filed in the coming weeks. The source of the salmonella infections was determined to be King Nut brand butter, from Peanut Corporation of America. The peanut butter was primarily sold in bulk to institutional and commercial consumers, such as hospitals and schools.

It is just now being revealed that Georgia plant has a history of sanitation-related problems that it failed to address.

An FDA investigation has determined that Peanut Corporation of America has distributed potential contaminated peanut butter paste to more than 70 customers for use in hundreds of products. A complete list of the products, which includes a variety of crackers, candy, ice cream, and cookies, can be found on the FDA website, or by clicking here.

If you have been diagnosed with Salmonella that you believe is caused by the consumption of peanut-related food products please contact Randy Walton or Scott Barber at (866) 607-1325 for a free evaluation of your case. If you would prefer, the firm can be contacted through a confidential online questionnaire.

UPDATE (2/11/09): It is being reported today that the owner of a peanut company at the center of the Salmonella storm urged his workers to ship tainted products after receiving test results that positively identified salmonella. The owner allegedly told his employees:

"…turn the raw peanuts on our floor into money."

Unbelievable!

Yesterday, a well-known Kentucky high school football coach was charged with reckless homicide in the heat-related death of one of his players. The player, 15-year-old Max Gilpin, collapsed during an August practice, and died three days later. According to the allegations, Gilpin's body temperature reached 107 degrees and witnesses said that coach Jason Stinson denied the boy water.

Interestingly, the day after Stinson was charged with a crime, the 11th Circuit Court of Appeals decided Davis v. Carter, a case eerily similar to Stinson's. In Davis, the parents of a high school football player brought suit against three coaches for violation of the player's constitutional rights, as well as causes of action in tort (presumably wrongful death). The player died after the coaches allegedly ignored signs of dehydration, and for denying the player water during a practice.

The coaches contended that they were entitled to qualified immunity, and that their conduct did not rise to the level of a violation of constitutional rights. Ultimately, court agreed.

In it's ruling, the 11th Circuit held:

In this school setting case, the complaint’s allegations of deliberate indifference, without more, do not rise to the conscience-shocking level required for a constitutional violation. While the circumstances of this case are truly unfortunate, Plaintiffs’ claims are properly confined to the realm of torts.

This case may bode well for Stinson in his Kentucky case. While not directly on point, the Davis case states that since the student voluntarily participated in the activity, the coach didn't engage in corporal punishment or physically contact the student, the conduct does not rise to the level of a willful or malicious intent to cause harm that would be need for a constitutional violation.

While the ruling relieved the coaches of constitutional claims, it did not relieve them of tort claims, such as negligence and wrongful death. In California, it has long been held that coaches and schools can be held liable for injuries to students if the coaches or schools created conditions likely to cause harm.

On Saturday, a Cessna 172 crashed into a utililty pole east of Oceanside Municipal Airport seriously injuring both the pilot and his passenger. According to reports, the plane was registered to California Flight Academy of El Cajon, but whether the plane was being used for training purposes at the time of the accident is unclear.

Oceanside policy have identified the pilot of the plane as Amandeep Singh, 24 and the passenger Harshdeep Multani, 18, both of whom were seriously injured. Singh remained in ICU as of Monday, and Multani was reported to be in good condition, but suffering from "several severed fingers."

The plane was on its way from Gillespie Field to Torrance Muncipal Airport.

Despite a website that states "no student ever injured," California Flight Academy apparently had a pair of accidents in 2008. Last june a plane caught fire after a hard landing by a student pilot, and in April a forced landing damaged the left wing during a training excercise. Neither accident caused injury.

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 Barber 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.

The potential source of the salmonella outbreak that has sickened individuals in at least 42 states has been identified as King Nut peanut butter. Health officials in Minnesota said salmonella bacteria were found in a tub of peanut butter that was distributed to schools and hospitals.

King Nut, based in Ohio, has issued a voluntary recall of all brands of peanut butter distributed under its label, which is not sold directly to consumers but primarily to food service accounts. To date, 399 Americans have been sickened by a strain of bacteria known as Salmonella Typhimurium, which is often found in uncooked eggs and meat.

Symptoms caused by salmonella are usually diarrhea, abdominal pain, and a fever, beginning 12 to 72 hours after contact with the bacterial. Severe cases can arise in people with weakened immune symptoms, as well as children and the elderly. That's what's particularly concerning about this outbreak; that the source may be associated with a peanut butter that was distributed to hospitals and schools.

Individuals who suspect a salmonella case may be attributed to peanut butter or other food product, call the attorneys at Walton Barber LLP for a free consultation about whether there may be any legal remedies available.

UPDATE (1/15): Kellogg has instructed stores to stop selling its Keebler and Austin brand crackers after health officials reported two more deaths in the salmonella outbreak linked to peanut butter. Kellogg has said it is removing the crackers as a precautionary measure when it learned that one if its suppliers Peanut Corp. of America was recalling all of its peanut butter made at a Georgia plant. It is being reported that the outbreak has now sickened at least 430 people nationwide in 43 states, with at least 55 reported cases in California.

UPDATE II (1/27): The NY Times is reporting that the Georgia plant suspected as the source of the national Salmonella outbreak had a history of sanitation lapses and other cleanliness violations. The plant is owned by the Peanut Corporation of America has been shut down. To read more click here.

Attorneys Randy Walton and Scott Barber represent individuals who have been impacted by accidents, defective products, food poisoning, spinal and brain injuries, construction accidents, dog bites, and other cases involving negligence.

There have been a lot of fatal car accidents in San Diego County recently. In fact, over the holidays there were more auto accident-related deaths than in years past. Many of the accidents were caused by alcohol use, but the accidents that jump off the news pages are those that occur for "unknown reasons."

For example, about a week ago in Fallbrook a 42-year-old woman named Stormi Lou Arreola was killed, and her child passengers injured, when she crossed the center divider on northbound Mission Road and struck a elderly man driving a Mazda sedan. The accident occurred midday, and, according to news reports was not alcohol related.

Yesterday, a bicyclist – riding in the bike lane – was struck and killed in Sabre Springs on Sabre Springs Parkway when a man driving a BMW veered into the bike lane and hit the cyclist. The victim was identified as 55-year-old Walter Carl Joller, whose was severed in the crash. He died at the scene. Police said they don't believe alcohol played a role in the accident, which occurred around 7 p.m.

There are, of course, many reasons why car accidents occur, but when the cars veer or drift out of their lane, and alcohol or drugs are not involved, it's impossible not to think that cell phone use was a contributing factor. This is quickly becoming the primary culprit in the train accident in Los Angeles, and is no doubt the cause of many car accidents. Personal injury lawyers who represent the victims of these accidents can subpoena the phone records of negligent drivers to prove that at, or around, the time of the accident the driver was using the phone instead of watching the road.

UPDATE: This morning the North County Times had a thorough article about Mr. Joller, who was a retired Navy captain, and who regularly commuted by bicycle to his job at Space and Naval Warfare Systems Command in Point Loma. He wore reflective gear and a helmet when he rode, and was known to be an experienced cyclist. The police are now stating that the negligent driver who struck Mr. Joller was simply "inattentive" at the time of the accident, and that he may face vehicular manslaughter charges. The family said donations may be made to the Navy-Marine Corps Relief Society in lieu of flowers.

The San Diego personal injury lawyers at Walton Barber LLP represent individuals and families who have been impacted by auto, motorcycle, and bicycle accidents, including claims for wrongful death.

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 Barber 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 Barber 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.

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 Barber 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.

Most people who hire lawyers for personal injury cases want to settle their case for a fair value, but they also want to feel they have prevailed. For most people, this means a chance to share their opinions, tell their story, and let it be known that their pain and suffering are real. Sometimes this means a trial before a jury of their “peers,” but more and more often it means a mediation with an experience lawyer or retired judge.

It is well known that over 90% of personal injury cases settle before trial. And recent studies have shown that is probably a good thing for both plaintiffs and defendants. But is mediation a substitute for trial? The short answer is no. Trial and mediation differ in many ways, with greatly differing risk and costs. But both can offer the injured plaintiff the chance to obtain some of the emotional justice in addition to the money damages sought.

Consider a recent mediation we participated in here at Walton Barber. The case involved wrongful death, and the clients were the wife and children of the decedent. They were a very close family, and in the year-long period they were our clients their passion for justice never waned. After substantial litigation, the family agreed to mediation with the defendant. The mediation lasted the entire day, and included long discussions with the mediator about the merits of the case, the risks and benefits, and most importantly about the overwhelming loss felt by the family. By the end of the mediation, the family was able to express their loss and their anger with the defendant directly, who like the family, was in tears and expressing remorse. The case settled, and the costs and risks associated with trial were avoided. In this case, this is what this family wanted.

Mediation is not for everyone, but for most, it is worth a try. A skilled mediator can make a plaintiff (and defendant) feel as though some form of justice has been obtained, without the emotional and financial risks of a jury trial.

A woman described as friendly and loyal was killed this weekend while selling flowers at her roadside flower stand in Lakeside. According to reports, Gwendolyn Wheeler was talking to a taxi that had pulled over on the shoulder of Lake Jennings Park Road when the driver of a pickup truck drove across lanes and on the raised shoulder, striking the parked taxi. Ms. Wheeler died at a nearby hospital, and the taxi driver was seriously injured.

The driver of the pickup was not injured, and was arrested on suspicion of driving under the influence of prescription medication.

This wasn't the only fatal car accident to plague San Diego County this weekend. A Fallbrook man suspected of driving under the influence died in a single car accident when he slammed his Toyota Camry into a power pole on South Mission Road. And in Oceanside, two men and a dog were killed in a fiery crash at the intersection of El Camino Real and Mission Road. Anyone with information about the Oceanside crash is asked to contact Officer Joe Torres at (760) 435-4930.

Walton Barber LLP is a personal injury law firm that represents injury and wrongful death clients throughout San Diego County. Contingency fee arrangements available and consultations are always free.

Based in San Diego’s North County, Randy Walton and Scott Barber represent individuals all over San Diego County in matters of personal injury and wrongful death. Whether you live in Escondido or El Cajon or Chula Vista, or anywhere else, Randy and Scott can help you obtain monetary justice for the injuries you have suffered.

Personal injuries, or course, can arise in a variety of circumstances, but usually occur due to car accidents, construction mishaps, dog bites, slip-and-fall incidents, medical malpractice, nursing home abuse, or assault and battery. For over a decade our attorneys have been handling claims on behalf of injured people, and all cases are taken on a contingency fee basis. That means that we do not earn a fee unless there is a monetary recovery.

For more about our firm visit our website at www.WaltonBarber.com.

Home and hospital visits are available, and consultations about cases are always free.

San Diego victims of food poisoning, who suffer personal injury as a result, can now prove the cause of their illness through inferences. In Sarti v Salt Creek, Ltd. [No. G037818. Fourth Dist., Div. Three. Oct. 27, 2008.] a California Court of Appeal held that a plaintiff may prove food poisoning via an inference that the food caused the illness.

The Sarti plaintiff ate raw Ahi tuna at the defendant restaurant. She became nauseous and chilled the next day and then developed diarrhea which continued for the next ten days. She soon was unable to move her legs and having a hard time focusing her eyes. She was taken to the hospital where a neurologist diagnosed a variant of guillain-barre syndrome (a disease that damages peripheral nerves). She was tested, and found to have campylobacter bacteria. Expert testimony would later indicate that Sarti's guillain-barre was an idiosyncratic immuno-suppressant reaction to the constant diarrhea brought on from campylobacter.

Ms. Sarti, who was about 21 years old at the time she came down ill, never completely recovered. She had to use a walker for eight months, and to this day retains only about 40 percent of what would have been her normal endurance.

After trial, the jury returned a verdict of $725,000 in economic damages and $2.5 million in pain and suffering. The judge, after announcing he agreed with the jury's decision, nonetheless overturned the verdict stating he felt obliged to follow the holding of Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003. Minder held that a plaintiff may not prove a food poisoning case by an inference that the food caused the particular illness.

The Sarti court examined the reasoning behind Minder and held that it was erroneous and no longer good law. In particular, the court found that the Minder court had misinterpreted prior cases in reaching its holding. As a result, plaintiffs may now prove the cause of their food poisoning via a reasonable inference that the food eaten was contaminated. This greatly reduces the burden on those who have become ill as a result of poor sanitary practices at a restaurant.

Car accident injury and fatality statistics from 2007 were released yesterday by the California Office of Traffic Safety, and show a wide disparity among Northern San Diego County cities.

Escondido seemed to fair the worse, ranking third highest among 52 cities of similar size in alcohol-related accidents per vehicle mile. Faring better was Carlsbad, who ranked 41st lowest in the same category. The ranking are based on the number of people injured or killed in automobile accidents each year.

The purpose of the study was to assist cities in identifying problems with traffic safety, and to help the state in assigning federal tax dollars to the cities that need it most.

A copy of the study can be found here (.pdf).

A wrongful death lawsuit was filed yesterday for the death of a 14-year-old girl who died after she ruptured her spleen while perform a cheerleading stunt. Studies have found that over 16,000 cheerleaders are injured every year, and cheerleading accounted for half of all "catastrophic" injuries suffered by female high school athletes over the last 25 years.

The $2 billion cheerleading industry has almost no standards or oversight, according to consumer attorneys, yet encourages and promotes activities that are inherently dangerous, including stunts where young girls are thrown more than 15 feet off the ground. Moreover, cheerleading is now popular with girls much younger than high school aged, and the level of difficulty of cheerleading stunts has grown more extreme in recent years. There are numerous documented incidents of brain injuries, fractures, and other debilitating injuries resulting from cheerleading stunts.

According to cheer safety advocate Kimberly Archie, "the state of cheerleading today is a national crisis." Archie started the National Cheer Safety Foundation to promote more regulation and awareness of the dangers. It's not uncommon for high schools and cheerleading school to hire "coaches" whose only experience in the industry is that they were cheerleaders themselves. And frequently they are hired shortly after high school and have little or no formal training.

CBS recently did a story on this very subject:

The personal injury and wrongful death law firm of Walton Barber LLP represents clients throughout Southern California, including the counties of San Diego, Riverside, Orange, Los Angeles, San Bernardino and Ventura. Contingency fee arrangements available and consultations are always free.

Personal injury lawyers frequently spend significant time every case dealing with medical liens. These liens can be asserted by any medical provider or insurer who provided or paid for care, but has not been paid for such care. Usually the lien attaches if there is a monetary award from a third party.

Under a new California law, hospitals and physicians are prevented from billing the patient for sums that are not paid by insurance. "Balance billing" occurs when an insurance provider, under a contract with a hospital or physician, only pays a percentage of the total bill. In some cases, the hospital or physician would then go after the patient for any balances owed, even though the patient has full health coverage.

If this sounds surprising, or unfair, it is. Imagine being a faithful insured, paying your premiums, and then having to go the emergency room only to find that your insurance company won't pay for all of the treatment. This is the surprise many personal injury victims get after suffering a harm.

This is really a dispute between hospitals and insurance companies. The insurance companies claim that the hospitals over-charge for the services provided, and the hospitals claim that insurance companies usually pay far less than what is reasonable and customary. The victim in this immoral tussle is too often the patient.

This is a good law that no doubt will be promptly attacked by both the insurance companies and the hospitals.

The driver of a bus that crashed last Sunday in Williams, California had a long criminal history and several motor vehicle offenses. Despite this history, he was allowed to drive a busload of senior citizens traveling to a casino when he veered off the road and into a ditch. Eight people died in the accident, and at least thirty were injured.

Though critically injured, the driver, Quintin Watts, has been arrested on suspicion of driving under the influence. In addition to Watts questionable past, the bus he was operating belonged to a corporation who state registration has lapsed, and the bus itself had invalid license plates and ID numbers.

Remarkably, the driver's mother even feared for the passengers when she heard her son would be carrying passengers. She told reporters she and her husband did not want her son driving because, "he wasn't the best driver."

Watts has a conviction for failing to wear a seat belt, and was also was convicted of speeding and failing to appear in court on Dec. 30, 2005, and Feb. 22, 2006.

Walton Barber LLP represents victims of auto accidents, dog bites, construction accidents, and all other personal injury cases, including those who have suffered wrongful death.

Personal injury victims of the walkway collapse in San Diego on August 28th have filed the first lawsuit arising from the accident. The lawsuit was filed in Los Angeles on behalf of Tyrone and Tina Allen, despite the fact the couple lives in San Diego. The lawsuit names Paramount Scaffold Company of Carson, and Allgire General Contractors, of Carlsbad, as defendants.

According to reports, Mr. Allen suffered significant and paralyzing injuries in the accident, and remains hospitalized at Scripps Mercy in Hillcrest. A total of 16 people were injured in the incident, which was caught on tape (we've blogged about this previously, click here to see the video).

No doubt there will be more lawsuits filed as a result of this accident, and the cases may very well be consolidated into a single case in San Diego. We'll keep updating this story.

The Metrolink commuter train that crashed September 12 in Los Angeles occurred when the Metrolink engineer failed to stop at a red signal, according to Metrolink spokesperson:

When two trains are in the same place at the same time somebody's made a terrible mistake.

The accused engineer was among the 25 people killed, and 135 people have been reported injured, 81 of those in serious or critical condition. The accident is the worst in Metrolink history.

Walton Barber LLP is a personal injury law firm that represents injury and wrongful death clients throughout Southern California. Contingency fee arrangements available and consultations are always free.

An Oceanside construction worker suffered serious burn injuries yesterday when a can filled with gasoline exploded as he was attempting to fill the tank of a chainsaw. According to reports, the 35-year-old worker suffered severe burns over 50% of his legs and was taken by helicopter to UCSD Medical Center.

The incident occurred at Martin Luther King Jr. Park on Mesa Drive where a construction crew is building a skate park. It appears that fumes from the chainsaw ignited fumes coming from the gas can. Cal-OSHA is investigating.

Safely filling a chainsaw usually requires using an approved container, depending the brand of the saw. Such a container would limit the amount of fumes or spillage that could occur when filling the tank, thus limiting the chance of ignition. That is a questions OSHA will no doubt answer.

Walton Barber LLP has represented burn victims in product liability cases involving explosion, the most recent involving an accident where a propane tank exploded during refilling. Burn injuries, of course, are some of the most serious and damaging injures a human can experience, and require extensive and long-term medical care.

Cal-OSHA is investigating what caused a wooden pedestrian walkway to collapse in downtown San Diego yesterday. The accident occurred during the lunch hour next to an apartment building under construction at 15th Street and Imperial Avenue, and injured 16 people.

According to witnesses, the walkway first began to sway, then gave way, sending people and debris falling to the ground where pedestrians scrambled. According to one witness, "the whole darn walkway fell down."

The caused of the accident is currently under investigation. What is known is that the developer for the project is San Diego-based Affirmed Housing Group, and the general contractor for the site is Allgire General Contractors of Carlsbad. It is being reported that state records show that Allgire has had at least two accidents in the past four years. One incident resulted in a $16,000 citation for a serious violation of state safety law.

There are reports that 16 people suffered personal injuries in the accident, including three with injuries that were described as serious. The most severe injuries being reported are a broken leg and a broken back. All of the victims are expected to survive.

UPDATE I: The Union Tribune is reporting this morning that two people remain in critical condition after the walkway accident yesterday. Some of the injured were homeless people who live at the St. Vincent de Paul Village across the street from the construction site. Also, Cal-OSHA is stating that it could take several months for the cause to be determined.

UPDATE II [9/3]: It is being reported today that three seriously injured individuals from the August 28 walkway collapse are still hospitalized. The most serious appears to be one victim who suffered a "broken back." According the San Diego Union Tribune, the victims ages ranged from 16 to 64. The incident is still being investigated, and we will be keeping on top of this story.

UPDATE III [9/8]: Raw video footage of the accident has been release and can be found on the local NBC website (click here). It is being reported that OSHA may take up to six months to complete its investigation.

Walton Barber LLP represent is a consumer law firm that represents the victims of personal injury, wrongful death, and elder abuse and neglect. Cases are taken throughout San Diego County, and consultations are always free.

Motorcycle accidents involving Marines have been on the rise and the Marine Corps wants to do something about it. This Thursday, Camp Pendleton officials will hold "Motorcycle Fest," an event that will have mandatory safety presentations, a stunt rider, and a poker run game. Breakfast and a barbeque lunch will be served.

Since October 1, 2007, 24 Marines have been killed in motorcycle accidents, up from the prior year, which recorded a record 19 deaths. The order for the safety event came from Gen. James Amos, who stated in his order to the base, “We can and will improve our ability to prevent future unnecessary losses of sailors and Marines." Gen. Amos also stated that the Marine Corps is working to make more motorcycle safety courses available.

The personal injury law firm of Walton Barber LLP represents clients throughout San Diego County. Contingency fee arrangements available and consultations are always free.

For victims of car accidents, motorcycle accidents, medical malpractice, broken contracts, etc., a study to be released in the September issue of the Journal of Empirical Legal Studies says that it's better to settle than to go to trial.

Co-author of the study, Randall L. Kiser says: "The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant's offer to be half a loaf when in fact it is an entire loaf or more." The study, based upon a review of 2,054 cases that went to trial between 2002 and 2005, claims that plaintiffs were wrong to go to trial in 61 percent of cases, while defendants were wrong to go to trial in just 24 percent of the studies. The study found that most of the plaintiffs who passed up a settlement offer and elected to go to trial ended up receiving less money than if they had accepted the offer. On average, getting it wrong cost plaintiffs $43,000. Interestingly, the stud noted that while defendants get it wrong less often, when they do it is much more costly: an average of $1.1 million.

The study is discussed in the business section of the August 8, 2008 New York Times.

If you have a personal injury matter, whether it's an auto accident, motorcycle accident, dog bite or wrongful death, do NOT wait to contact an attorney. A woman recently contacted Walton Barber LLP about a bad car accident she had been involved in back in 2006. For a variety of reasons (long treatment of her injuries, changing jobs, etc.) she did not contact us until after the statute of limitations had expired. In California, most personal injury lawsuits must be filed within two-years of the date of the accident. As she had failed to resolve her claim or file a lawsuit within the two-year period, the woman was, unfortunately, out of luck.

The moral: If you're involved in a personal injury matter, contact a lawyer sooner rather than later. Even if it turns out you don't need a lawyer, you'll at least get an idea what hurdles you face and know when you'll need to resolve your claim or file a lawsuit.

The hit-and-driver that nearly killed Leslie Nunez has never been held accountable for the devastating injuries she wrought upon Leslie and her friend last year in Pacific Beach. Exactly one year ago, Leslie and her friends were walking to a restaurant in PB when they crossed Grand Avenue near Cass Street and were hit by a Nissan Maxima. Leslie suffered severe personal injuries, including head injuries and broken bones requiring surgery. The driver just took off.

Now Leslie needs your help to find the bad guy, and is offering her own money to boost the San Diego Crimestoppers reward up to $2500 for information that leads to the identification of the negligent driver. The accident occurred on August 10, 2007 at 9:40 p.m. in Pacific Beach. Witnesses say there were two women in the car, which may have been customized with specialty rims and tinted windows. Leslie still has over $200,000 in medical bills. Anyone with helpful information about this hit-and-run crash should call (888) 580-TIPS or go to the Crimestoppers website.

Walton Barber LLP is a personal injury law firm that represents clients throughout San Diego County. Contingency fee arrangements available, and consultations are always free.

Two San Diego pedestrians died yesterday after being struck by cars in separate incidents. The first was in North Park, where a 20-year-old pedestrian suffered major head injuries and died after being struck on University Avenue. The other occurred in Paradise Hills, where a pedestrian was hit near Sky Harbor Road.

According to the National Highway Traffic Safety Administration a pedestrian is struck and injured every eight minutes in the United States, and killed every 111 minutes. A large majority of pedestrian accidents occur in urban areas, at non-intersection locations, and in normal weather conditions.

Nearly half of all pedestrian accidents occur in the afternoon, and children and the elderly are typically at a greater risk of being injured in a pedestrian accident. Many of these incidents are the result of negligent or reckless drivers.

One of the most frequent questions Walton Barber gets from potential clients is, "Do I need a lawyer?" While there is no set answer, here are some general guidelines. You probably need a lawyer if:

1) You need more than one doctor visit to treat your injuries. Generally, if your injuries are such that you require two or more doctor visits or physical therapy, in addition to incurring medical bills, you are going to miss some work. When the bills start mounting and medical insurance gets involved, you probably need a lawyer.;
2) You're in a car accident and your vehicle sustains over $1,000 in damage. Generally, the higher the amount of damage to the car, the higher the forces transferred to the occupants. Of course there are exceptions to this so the amount of damage to a vehicle alone is not a determinative factor.; or
3) The other party denies responsibility for the accident. If the other party was at fault but denies it, you will definitely need an attorney as their insurance will likely not settle without a fight.

If you've been in an accident which meets one or more of the three criteria above, please do not hesitate to contact Walton Barber for a confidential and free consultation. If you're going to need a lawyer, it's better to get them involved earlier rather than later.

According to the Environmental Protection Agency (EPA), the value of the average American life has declined $1 million in the past five years and is now worth just $6.9 million.

Unlike the calculations made in wrongful death lawsuits, the calculations made by the EPA are based upon how much individuals are willing to pay to avoid risk and how much more employers must pay workers to encounter certain risks in their jobs. In California wrongful death lawsuits, the value of the case is dependent upon a number of factors including the deceased's earning capacity and the loss of the care, comfort, solace and society of the decedent.

The concern over the devaluation, moral questions notwithstanding, is that government agencies use this figure when enacting regulations designed to prevent various harms. Traditionally, a cost benefit analysis is done to determine whether the cost of enforcing a regulation is worth the benefit of saving lives.

A decline in auto accident deaths may be attributed to the increase in fuel prices, a new study shows. The report was released last month at a meeting of the American Society of Health Economists.

The study found that for every 10% increase in gas prices, there was a 2.3% decline in automobile accident fatalities. Surprisingly, there was a greater decrease in accident deaths for drivers ages 15 - 17, which was 6%, than for drivers 18-20, which was 2.3%. The auto death statistics were acquired from the National Highway Safety Administration.

The study's authors believe that the number of auto-related deaths will decrease by 1,000 each month that gas prices continue to rise. There are approximately 40,000 deaths every year resulting from car crashes.

A study by the National Highway Traffic Safety Administration shows a decrease in the annual number of incapacitating injuries due to auto accidents of 25%. It defines an incapacitating injury as a severe non-fatal injury that prevents the injured party from walking or driving, or the ability to continue the pre-accident activities of daily living.

Much of the decline in auto accident injuries is attributed to many improvements made in vehicle safety and driver behavior over the last decade. It's really no surprise. Seat belt use is now commonplace and expected, child safety seats are in regular use, and the incidents of drunk driving have also been in decline. In addition, cars are safer than ever. Air bags are now a standard feature on newer cars, as well as stability control.

This is all good news. But there are still too many car accidents that result in personal injury. All the technology and public service announcements in the world can't prevent the negligent or careless driver from being negligent and careful. But it is nice to know that the roads are becoming increasingly safer.

Walton Barber LLP is a San Diego County law firm representing individuals, families, and businesses throughout San Diego, Orange, and Riverside Counties, in matters involving personal injury, wrongful death, nursing home abuse and neglect, and real estate litigation.

One of the difficulties plaintiffs have had to deal with in recovering their “fair” damages in a personal injury lawsuit has been, ironically, insurance. Under a line of California cases, a plaintiff who has medical insurance, has essentially been penalized by the courts.

Under the holding of Hanif v Housing Authority (1988) 200 Cal.App.3d 635 and the cases which have followed it, a plaintiff may only recover “up to, and no more than, the actual amount expended or incurred for past medical services so long as that amount is reasonable.” Hanif at 643.

To understand the application of this “rule,” we need to look at a hypothetical. Assume a woman is in a car accident, sustains injuries and requires $20,000 in medical care to treat her injuries. If the woman does not have insurance, her damages may be $20,000. However, if she has insurance, her insurance may have contracted with the hospital and thus only paid $6,000 for her medical care. Under Hanif, the insured woman would thus only be able to recover $6,000 despite her suffering the same injuries as the uninsured woman who recovered $20,000.

The Fourth Appellate District-Division Three (Orange County) on Monday handed down it’s ruling in Olsen v. Reid (G038478). While the ruling itself broke no new ground, bypassing the issues of both Hanif and the contrary collateral source rule, the Concurring Opinion by Presiding Judge Moore “sound[ed] the bell of alarm.” Judge Moore’s concurring opinion examined the history of the collateral source rule which has long been part of California law. In Judge Moore’s opinion, and that of just about every plaintiffs’ attorney in California, Hanif and the cases which follow it have tried to judicially abrogate the law as set forth by the Legislature, the collateral source rule.

In some ways, this is a victory for those who represent injured consumers. Judge Moore’s concurring opinion provides a basis upon which we can argue against post-trial Hanif motions by which defense attorneys may try to reduce the damages awarded by juries. On the other hand, Olsen does not overrule Hanif, as it cannot, but does ask the California Supreme Court to hear the issue and reaffirm, as it should, that the collateral source rule should prevail.

A personal injury is generally described as any harm or injury caused to a person, ranging anything from a bruise to a wrongful death. If that harm or injury is caused by the negligent or intentional conduct of another person or entity, then the injured party is entitled to recover damages for that harm, no matter how small or serious.

A significant portion of the Walton Barber LLP case load is dedicated to the practice of personal injury law. Our firm represents individuals and families in a variety of personal injury matters, including auto accidents, motorcycle injury accidents, defective products, construction site accidents, falls on commercial properties, accidents in the home, and most other matters involving negligent conduct.

Under most circumstances, the legitimate victims of personal injury do not have to pay the costs to pursue a case with Walton Barber LLP, and most cases are taken on a contingency fee. This means nothing is paid by the client until and unless there is a monetary recovery.

If you have a question about a personal injury case, call Walton Barber LLP for a free and confidential consultation. We accept cases all over San Diego County, and, if necessary, will visit you in the home or the hospital for convenience.

For more information call (866) 607-1325 or fill out our online questionnaire.

As summer arrives, swimming pools take center stage in lives of thousands of Southern California families. This entry is a friendly reminder of the simple steps that can be taken to avoid serious injury or death caused by the backyard pool.

The first one is a no-brainer. Never let children swim in the pool unattended or unsupervised. If toddlers are in the pool, keep them at arms-length at all times. These simple steps can prevent an accidental drowning, and a failure to do this is negligence.

It is also a good idea to have a phone handy when you're at poolside. Whether it's a cordless from inside the house, or a cell phone, it will be invaluable to have it nearby if emergency assistance is needed.

After children are finished swimming for day, close the pool, if possible, in a manner that will prevent young children from getting back in the water. Whether it means locking the house door, closing the pool fence, or netting the top of the pool, it is important to prevent reentry for the day once swimming is over.

Finally, to adults, go easy on the alcohol. Poolside drinking can slow reaction time and impair decision making abilities.

Following these simple rules will prevent most injuries or fatalities related to swimming pools. Have fun... but be smart.

More people, more roads, and more freeway congestion caused the number of auto accidents on North County San Diego roads to rise in 2007. Drivers looking to avoid the congestion of Highway 78, found the local surface streets no safer. Below are the top car accident locations in all the cities along the 78 corridor.

OCEANSIDE ACCIDENTS
College Boulevard and Oceanside Boulevard - 10
North River Road and College Boulevard - 7
Mission Avenue between Butler Street and Amick Street - 7
College Boulevard and Plaza Drive - 6
College Boulevard and Via Cupeño - 6
Oceanside Boulevard and Melrose Drive - 6
College Boulevard and Barnard Drive - 5
El Camino Real and Vista Way - 5
Mesa Drive and College Boulevard - 5
Oceanside Boulevard and Rancho del Oro - 5

CARLSBAD
El Camino Real and La Costa Avenue - 28
El Camino Real and Palomar Airport Road - 27
Armada Drive and Palomar Airport Road - 15
El Camino Real and Marron Road - 15
Alga Road and Aviara Parkway - 14
El Camino Real and Faraday Avenue - 14
Palomar Airport Road and Paseo del Norte - 14
Carlsbad Village Drive and Harding Street - 13
Cannon Road and El Camino Real -12
Car Country Drive and Paseo del Norte - 12

VISTA ACCIDENTS
Escondido Avenue and Hillside Terrace - 26
Melrose Drive and Vista Way - 15
Santa Fe Avenue and Vista Village Drive - 15
Emerald Drive and Vista Way - 15

SAN MARCOS ACCIDENTS
Rancho Santa Fe Road and San Marcos Boulevard - 41
Grand Avenue and San Marcos Boulevard - 24
Business Park Drive and San Marcos Boulevard - 17
Knoll Road and San Marcos Boulevard - 17
Descanso Avenue and Rancho Santa Fe Road - 16
San Marcos Boulevard and Twin Oaks Valley Road - 16
Via Vera Cruz and San Marcos Boulevard - 16
Bent Avenue and San Marcos Boulevard - 15

ESCONDIDO ACCIDENTS
Washington Avenue and North Broadway - 17
East Valley Parkway and Midway Drive - 16
Lincoln Avenue and North Broadway - 16
El Norte Parkway and Centre City Parkway - 14
East Valley Parkway and Rose Street - 14
East Mission Avenue and Ash Street - 13
Mission Avenue and Fig Street - 13
Washington Avenue and Ash Street - 13
East Valley Parkway and Harding Street - 12
East Valley Parkway and Ash Street - 12
Centre City Parkway and Mission Avenue - 12

San Diego’s Fox 6 News visited Walton Barber on Thursday to interview Randy Walton about the liability of dog owners whose dogs are involved in biting incidents. The interview was prompted by a vicious attack on a Spring Valley woman who was seriously injured by a large dog while walking in her neighborhood.

In California, Walton told Fox 6 News, the law is clear. If someone owns a dog, and that dog bites a human, the owner if the dog is strictly liable.

Walton, who deals with dog bite cases frequently, says it doesn’t matter whether or not the dog displayed aggressive behavior prior to the attack. He says there were over 2000 dog bite cases in San Diego County last year and he believes there may have been many more that weren’t reported. “Because people don’t report them that frequently, if it’s a dog that they know,” Walton says.

To read the full story or see the video report click here.

The dog bite attorneys at Walton Barber represents individuals all over San Diego County who have been injured by dogs. If you have a question about a dog bite matter and would like a free consultation, please call (866) 607-1325 or fill out an inquiry form online.

Walton Barber has handled many cases involving bite injuries caused by dogs, but none were more sympathetic than one we just settled. Our client was an elderly woman in her 70s who was attacked by two bulldogs has she walked her small poodle around her complex. The bulldogs knocked her to the ground, and bit her and her poodle repeatedly before help could arrive. She suffered numerous puncture wounds and a broken arm. We recently represented another victim in Escondido.

The San Diego County Department of Animal Control was called to investigate, and ultimately ruled that the bulldogs were considered dangerous and placed in quarantined. The "dangerous" label placed on the dogs stunned their owners, who, like most owners involved in dog bite cases, testified that the dogs showed no previous propensity for harm, and were nothing more than lovable pets up until the time of the attack. Because of the dangerous findings, the Animal Control placed several onerous restrictions on the dogs, and the owners opted to have the dogs euthanized. It was tragic event all around.

According to statistics, there were 2,277 dog bites last year in San Diego County, but the actual numbers are more likely twice that amount, as most bites occur on people who know the dog's owner personally and fail to report the event. Yet despite the large number of bites, only 17 dogs were euthanized because of dangerous behavior.

The Animal Control offers the following dog safety tips:

● Do not approach or play with an unfamiliar dog.
● Do not run from a dog or scream. Remain motionless.
● If knocked over by a dog, roll into a ball, lie still and cover head and face.
● Do not disturb a dog that is sleeping, eating or caring for puppies.
● Disregard stereotypes about dangerous breeds.

For more information about dog attack cases, call Walton Barber LLP at (866) 607-1325.

Located in San Diego’s North County, Scott Barber and Randy Walton represent individuals all over San Diego County in matters of personal injury and wrongful death. If you live in Escondido, and have suffered an injury due to the negligence or wrongful conduct or another, Randy and Scott can help you obtain money damages for your harm.

Personal injuries, or course, can occur in a variety of ways, but typically arise due to auto accidents, dog bites, construction accidents, slip-and-fall incidents, nursing home abuse, or assault and battery. Walton Barber has been handling claims on behalf of injured people for years, and all cases involving physical injuries are taken on a contingency fee basis. That means that no attorney’s fees are paid until and unless there is a monetary recovery.

For more about our firm, our attorneys, and our history, please visit our comprehensive website at www.WaltonBarber.com.

Consultations about cases are always free, and home and hospital visits are available.