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Archive for the ‘Tort and Catastrophic Loss’ Category

Getting Strict with Georgia’s Apportionment Statute: Johns v. Suzuki Motor Corp

Posted on: November 24th, 2020

By: Janeen Smith

The Supreme Court of Georgia recently held that Georgia’s apportionment statute, O.C.G.A. § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, O.C.G.A. § 51-1-11. Johns v. Suzuki Motor of Am., ___ Ga. ___ , 2020 Ga. LEXIS 760 (Case No. S19G1478, decided Oct. 19,2020). This means that defense attorneys can ask juries to consider whether a plaintiff in a products liability lawsuit contributed to his or her injuries apportioning fault. As such, the Johns decision is widely considered a net win for the defense. 

Plaintiff/Appellant Adrian Johns was seriously injured in a motorcycle accident in August 2013 when his Suzuki motorcycle’s front brake failed suddenly. After Johns returned home, he received a recall notice from his motorcycle’s manufacturer. The recall warned of a safety defect involving his motorcycle’s front brake master cylinder that could increase the risk of a crash. Johns filed a lawsuit against his motorcycle’s manufacturer including a strict liability claim based on a design defect. At trial, the Johns’ theory was that a defect in the front brake (the same one the recall addressed) caused his accident, and the manufacturer had prior knowledge of the defect. The manufacturer argued plaintiff’s negligent operation of the motorcycle caused the accident, or if he did experience brake failure, the condition of the brakes existed as a result of his admitted failure to change the brake fluid for eight years. In other words, the manufacturer maintained the recall was unrelated to plaintiff’s claims.

The jury found in favor of plaintiff on each claim and awarded him $10.5 million in compensatory damages and $2 million to his wife for her loss of consortium claim. The jury assessed 49% fault to plaintiff and 51% to defendants. In light of these findings, the trial court reduced plaintiff’s award to $5,355,000 and his wife’s award to $1,020,000. On appeal, plaintiff argued that the trial court erred by applying Georgia’s apportionment statute to reduce an award in products liability lawsuit. In rejecting plaintiff’s argument, The Supreme Court focused on four main points:

  1. Georgia’s apportionment statute does not create an exception for products liability claims;
  2. Plaintiff relied on case law pre-dating the apportionment statute;
  3. Strict liability and apportionment are compatible because the former involves liability and the latter involves fault; and,
  4. Holding manufacturers “absolutely liable” promotes the policy justifications for strict liability products claim, but the legislature considered this to the extent the application of apportionment effects this policy justification.

The third and fourth points are somewhat related and are perhaps the most interesting parts of the opinion. The Supreme Court pushed back on plaintiff’s argument that applying apportionment to a manufacturer defect claim undermines the strict liability framework by showing the two principles are compatible. First, a plaintiff in a products liability action is still relieved from the burden of showing the defect resulted from the manufacturer’s negligence (the key benefit to a strict liability framework).  Second, fault (the main consideration of apportionment) and liability (the main focus of strict liability) involve different considerations. Liability means “responsible or answerable in law.” Liable, BLACK’S LAW Dictionary (11th ed. 2019). Fault, in this context, focuses on the plaintiff’s “responsib[ility]” and “fault” for the injury claimed. Johns at *14.  As such, a jury can consider a plaintiff’s fault while simultaneously acknowledging a manufacturer’s liability.

This case is another example of the trend towards allowing juries to apportion fault in varying circumstances. 

If you have questions or would like more information, please contact Janeen Smith at [email protected].

Prop 51: CA Supreme Court Creates Noteworthy Exception to Reduction or Apportionment of Non-Economic Damages

Posted on: November 10th, 2020

By: Zachary Price

Under Proposition 51, although all defendants in California are liable to a plaintiff for 100% of plaintiff’s economic damages (including such things as medical expenses and lost earnings), defendants are only liable for noneconomic damages (such as physical pain, mental suffering, and emotional distress) in proportion to their fault. In other words, while defendants are jointly liable for economic damages, they are severally liable for noneconomic damages. 

However, in B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, the California Supreme Court has created a noteworthy exception, holding that intentional tort defendants are categorically exempt from the several liability protections of Proposition 51. As a result, regardless of a defendant’s proportion of fault, if that defendant is found liable for an intentional tort, they are responsible for 100% of plaintiff’s noneconomic damages.

In B.B. v. County of Los Angeles, a jury found that a Los Angeles County Sheriff’s Department deputy had committed battery by using unreasonable force to subdue a man when the deputy pressed his knees into the man’s back and neck. The man lost consciousness and died 10 days later. The decedent’s family was awarded $8 million in noneconomic damages. The jury found that the deputy was only 20% responsible for the decedent’s death, with 40% responsibility attributable to other deputies and the remainder to the decedent. However, because the deputy’s liability was based on an intentional tort, the trial court entered judgment against the deputy for 100% of the noneconomic damages.          

The appellate court disagreed with the trial court and reduced the judgment against the deputy in proportion to the jury’s allocation of responsibility.  The matter then proceeded to the California Supreme Court. Resolving a split of authority in the appellate courts, the California Supreme Court held that Proposition 51 does not apply to intentional tortfeasors, making the deputy in question liable for the entirety of the $8 million noneconomic damages award. Specifically, the California Supreme Court held that Civil Code section 1431.2(a), which codified Proposition 51, does not authorize a reduction in the liability of intentional tortfeasors for noneconomic damages based on the extent the negligence of others contributed to the injuries in question. “Others” include plaintiffs, codefendants, injured parties, and nonparties.

The California Supreme Court based its decision on the plain language of section 1431.2, which expressly incorporates “principles of comparative fault.” After a thorough discussion of the history of comparative fault in California, the Supreme Court noted that principles of comparative fault have never required or authorized the reduction of an intentional tortfeasor’s liability based on the acts of others. Because section 1431.2 incorporates those principles, the statute did not allow the deputy to reduce his liability for noneconomic damages based on the acts of the decedent or other deputies.     

The California Supreme Court’s decision in B.B. v. County of Los Angeles will have profound ramifications. Armed with this exception to Proposition 51, expect to see an uptick in cases advancing intentional tort theories by the plaintiffs’ bar, particularly in multi-defendant litigation or cases with defendants known to have deep pockets. To avoid potential application of this exception, defense counsel will need to aggressively challenge intentional torts prior to trial through discovery and motion practice.

If you have questions or would like more information, please contact Zachary Price at [email protected]

Sidewalk Trip & Falls – Business Beware

Posted on: November 6th, 2020

By: Robert Bazzo

Recently the California Court of Appeal, Second Appellate District (Division Two) heard the case of Jose Luis Lopez, Jr. v. City of Los Angeles and Wally’s Wine & Spirits, Et Al. (B288396.) The case involves a pedestrian (Plaintiff Lopez) who stepped on what looked like a puddle, but which ended up being a four-inch-deep pothole. As a result, he dislocated his ankle, tore three ligaments, and fractured two bones; repairing the damage necessitated two rounds of surgery.

The pothole was located where the street gutter meets the lip of a driveway in front of  the business known as Wally’s Wine & Spirits in the City of Los Angeles. The pothole was caused by deterioration of the asphalt due to regular use of the driveway by vehicles and due to water flowing in the gutter.

Plaintiff filed suit against the City of Los Angeles and Wally’s Wine & Spirits for negligence and premise liability.  In general terms, the owner or occupier of private property has a “duty” to exercise reasonable care “to maintain [its property] . . . in a reasonably safe condition” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674, but that duty does not generally extend to the publicly owned sidewalks and streets abutting the property unless the owner or occupier has “exercise[d] control over [that publicly owned] property” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157-1158; Martinovich v. Wooley (1900) 128 Cal. 141, 143.

So, when does the owner or occupier of private property exert control of abutting, publicly owned property?

As a threshold matter, the owner or occupier must take some “affirmative” or “positive” action toward the abutting, publicly owned property. (Selger v. Steven Bros. (1990) 222 Cal.App.3d 1585, 1590-1591.)  Thus far, courts have identified two situations in which an owner or occupier of private land has engaged in affirmative or positive action sufficient to hold them liable for a hazard located on abutting, publicly owned property: (1) when the owner or occupier has created that hazard (Carson v. Facilities Development Co. (1984) 36 Cal.3d 830), i.e. the re-configuration is done (a) for the owner or occupier’s own “special benefit” and (b) in a manner that causes the public property to “serve a use independent of and apart from the ordinary and accustomed use for which [that property (e.g., a sidewalk) was] designed.”  The second affirmative or positive action is (2) treating property as its own.  Thus, even if a hazard located on publicly owned property is created by a third party, an abutting owner or occupier of private property will be held liable for injuries caused by that hazard if the owner or occupier has “dramati[cally] assert[ed]” any of the “right[s] normally associated with ownership or . . . possession” by undertaking affirmative acts that are consistent with being the owner or occupier of the property and that go beyond the “minimal, neighborly maintenance of property owned by another.” (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 200.)  

At trial, there was no substantial evidence to support a finding that Wally’s created the pothole. There was no evidence presented at trial that the driveway apron or gutter were “constructed” or “altered” by Wally’s, by any of its predecessors in interest, or by the City at its (or their) behest. There was also no evidence that the sloped driveway or the gutter “serve[d] a[ny] use independent of and apart from the ordinary and accustomed use for which [driveways and gutters] are designed.”  Moreover, there was no evidence that the sloped driveway in this case deviated in any way from the standard construction of driveways and no evidence that Wally’s used the driveway for vehicles other than ordinary cars and vans.  There was also no evidence that the gutter running in front of Wally’s did anything beyond its “ordinary and accustomed use” of carrying away water, for which gutters are designed, and no evidence that Wally’s deposited more water into the gutters than any other property owner along the subject street.

Based on all of the above, the Court of Appeal held that the commercial business leasing the property and the driveway services did not exercise control over the location of the pothole (so as to create a duty of care to passersby) when the business has done no more than put the driveway and gutter to their “ordinary and accustomed” uses. Therefore, the trial court was correct in granting judgment notwithstanding the verdict to overturn a jury verdict that found the business partially liable for the pedestrian’s injury.

If you have questions or would like more information, please contact Robert Bazzo at [email protected].

Seeking Sanctions Against a Dishonest Plaintiff

Posted on: October 19th, 2020

By: Jennifer Adair

Sanctions for discovery abuses are not a weapon reserved for the plaintiff, and defense attorneys should not shy away from pulling this arrow from their quiver when misrepresentations by the plaintiff are so egregious that a vigorous cross-examination at trial simply will not suffice. Rather, defendants should consider whether to petition the court for the relief necessary to obtain a just result.

In two recent automobile accident cases in Georgia, our firm encountered plaintiffs who claimed both in written discovery and in depositions that they never experienced prior similar injuries. Through the diligent pursuit of medical and claim records, we uncovered that both had extensive relevant medical histories – even to the extent of surgery! – which they concealed from the defense.  Not only did the plaintiffs misrepresent their medical histories, but they failed to disclose those providers whose records would expose their dishonesty.  Those deceptions went to the very heart of the case – whether the motor vehicle accident at issue was the cause of the injury alleged.

Time after time, courts have authorized sanctions for false and misleading discovery responses, up to and including striking the pleading of the offending party. The courts have recognized that a false discovery response is graver than a total failure to respond because the other party may never learn that the response it received is false.  Counsel should carefully consider the issues faced in each case, and the laws of each jurisdiction, to craft proposed sanctions that address the specific harm caused by the plaintiff. In the examples above, we requested, in the alternative:

  • Striking of plaintiff’s complaint
  • Precluding plaintiff from offering any evidence or testimony as to the condition about which she was dishonest
  • Striking plaintiff’s causation experts, who were not accurately informed of her medical history
  • Precluding plaintiff from cross-examining defense causation experts
  • A limited reopening of discovery as to the subject matter of the false response
  • A jury charge on spoliation
  • Attorney’s fees and expenses
  • Finding plaintiff in contempt of court

In both matters, we were successful in persuading the trial court to preclude the plaintiffs from giving any testimony or other evidence of any condition for which they lied about prior treatment. In effect this prevented each from offering evidence of or obtaining any recovery whatsoever for multiple surgeries. The remedies available in other jurisdictions vary, but the policy reasons for awarding such sanctions hold consistent. Similarly, while a personal injury case more frequently lends itself to similar dishonesty, the obligation to provide truthful discovery responses is universal and sanctions should be considered as a strategy any time the opposing party lies.

Faced with a dishonest plaintiff, defendants and their attorneys should carefully consider which cases are appropriate for requesting sanctions. Cases involving a legitimate misunderstanding or a highly nuanced discrepancy are unlikely to evoke a harsh response. Further, if the plaintiff is not aware that the defendants have learned he was dishonest, there may be a strategic advantage to saving the information for use at trial as impeachment so that the plaintiff will not have an opportunity to get his story straight. Seeking sanctions is a strategic decision for attorneys and their clients, but can be an important tool in combatting the unscrupulous plaintiff.

For more information, please contact Jennifer Adair at [email protected].

U.S. Employers Face Threat of Exposure to New COVID “Take Home” Lawsuits

Posted on: October 6th, 2020

By: Sean Riley

Take-home or household exposure lawsuits have been a facet of asbestos litigation for years, allowing mesothelioma victims who came into contact with asbestos that was brought into their homes on the clothing of their spouses, parents, or other household members.

While employers are typically immune from suit pursuant to their states’ respective workers compensation acts, immunity does not extend to claims made by employees’ family members.

As U.S. businesses continue to reopen, many employers now face the threat of take-home COVID claims where workers bring coronavirus home and infect relatives. Recently, the daughter of Esperanza Ugalde of Illinois filed what appears to be the first wrongful death “take home” lawsuit, alleging her mother died of COVID-19 that her father contracted while working at a meat processing plant.

As approximately 7-9% of the 200,000+ COVID related deaths are believed to be caused by take-home exposure, it is anticipated that many similar suits will follow.

If you have questions or would like more information, please contact Sean Riley at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

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