Category: California Personal Injury

The New California Cellphone Law And Negligence Cases – CA

An expanded cellphone law that its author says is designed to “prevent distracted driving” takes effect this coming January 1.

The move takes place as cellphone use while driving has expanded in California and elsewhere. As a result, CHP spokesperson Jon Sloat called the bill “welcome news” for law enforcement. Beginning in January, officers will write tickets whenever they see drivers using cellphones, whether they are talking, texting, “checking their GPS or their music,” he added. The bill’s primary sponsor was Assembly-member Bill Quirk (D-Hayward).

Last year, cellphone related crashes killed sixteen Californians and injured 500 others, and Officer Sloat believes these numbers are vastly under-reported.

The California Cellphone Law

When lawmakers began debating the current cellphone laws a little over a decade ago, most available devices were quite rudimentary compared to the ones of today, and the more advanced models were often priced out of reach of many drivers. Moreover, social media platforms and smartphone apps were not nearly as well-developed then as they are today. As a result, since most people still used their phones primarily for talking and texting, the Legislature passed very narrowly tailored laws to address these concerns.

In 2014, the Fifth District Court of Appeal court ruled in favor of Steven Spriggs, who received a ticket for using his cellphone to access a GPS map while he was stuck in traffic. The court ruled that since Mr. Spriggs was not talking on his phone at the time, the statute as written did not apply. “We conclude the statute means what it says — it prohibits a driver only from holding a wireless telephone while conversing on it,” the court wrote. At the time, the CHP elected not to appeal this decision, probably because the court was clearly correct in its interpretation of the narrow law.

A.B. 1785 passed by wide margins in both the Assembly and the Senate. It essentially replaces the existing “talking and texting” language with the phrase “holding or operating a handheld wireless telephone or an electronic wireless communications device.” The law also limits the use of cellphone mounts.

Direct Evidence of Negligence

When drivers are cited for violating the new Vehicle Code 23123.5, prosecutors must still prove that the driver was using the device and not checking the time, glancing at a status update, declining an incoming call, or otherwise using the device in an approved way. However, in civil court, the burden of proof is lower. So, evidence that a cellphone was on and was in the front passenger area would probably be sufficient for a reasonable juror to conclude that, more likely than not, the driver was using the device at or near the time of the crash.

It is well-settled law in California that most statutory violations, including VC 23123.5 infractions, constitute negligence per se (negligence “as such”). The elements are:

  • Infraction: The jury must determine, based on the evidence, that the tortfeasor (negligent driver) violated a safety law; the jury could make such a finding even if the tortfeasor was not convicted in criminal court, because of the lower standard of proof.
  • Cause: The violation must have been “a substantial factor in bringing about the harm,” which is not the same thing as the sole factor in bringing about the harm.

Violating a traffic or other law sometimes raises a presumption in favor of additional punitive damages. To obtain these damages, the plaintiff must offer clear and convincing evidence that the tortfeasor recklessly disregarded the safety and property of others, and 90 percent of drivers agree that using a cellphone while driving is a serious hazard.

Indirect Evidence

Cellphone use is one of the most dangerous kinds of distracted driving because it involves all three areas of distraction:

  • Cognitive (taking your mind off the road),
  • Visual (taking your eyes off the road), and
  • Manual (taking at least one hand off the wheel).

This definition obviously encompasses a wide array of behaviors that may or may not cause car crashes. For example, since it involves two types of distraction (cognitive and visual), turning one’s head to speak to a passenger is almost as distracting as using a cellphone. In these situations, the jury determines if the driver breached the duty of reasonable care. In a nutshell, there is a significant difference between having an emotional face-to-face discussion with a significant other while driving and turning one’s head for a moment to ask if the air conditioner is blowing too hard.

In both direct and indirect evidence cases, compensatory damages generally include money for economic damages, such as lost wages, and noneconomic damages, such as loss of enjoyment in life. Punitive damages are sometimes available in both instances as well.

Understanding Bicycle Accidents – California

With mild weather almost year long, California was made for outdoor activities, like bicycling. Unfortunately, most streets in the Golden State were not made for bicycles. Back in the day, the car was the king, and road layouts largely match that attitude. There have been some changes recently, but for the most part, bike lanes are narrow or nonexistent and laws are not very favorable. The culture of the car also means that motorists do not always look out for bicyclists.

As a result, California led the way amongst all other U.S. states in bicycle fatalities between 2010 – 2012, with 338 deaths. In fact, when a fast-moving 4,000-pound car hits a slow-moving 15-pound bicycle, the results are almost always tragic for riders. Fortunately, injured victims have a number of legal options in these situations.

BICYCLE ACCIDENT CAUSES

Most of these collisions occur during the summer months and during the day, because of the prevalence of child riders during these months and hours. Children are not as visible in traffic and may not be as familiar with the rules of the road as older bikers.

According to a report from the National Highway Traffic Safety Administration, the most common reason for cycling accidents is collision with a car (29%). Riders are normally not seriously injured if the vehicles are moving 20mph or slower, but they are nearly always seriously injured or killed if the vehicles are traveling 40mph or faster. Speed increases the force in a collision and also reduces reaction time. That latter condition is especially important with regard to bicyclist visibility, a point that is discussed below.

While some drivers speed and ignore traffic laws, others should never have gotten behind the wheel at all, because they were already dangerously impaired. Such impairment can come from:

Alcohol: After just one drink, most people experience loss of muscle control, and they are also unable to quickly make good decisions.

Drugs: Legal painkillers, sleep aids, antidepressants, and other medicine, if they are used improperly, are as dangerous as illegal “street drugs,” like heroin and cocaine.
Fatigue: Statistics show that driving after being awake for eighteen consecutive hours is like driving with a .08 BAC.

Moreover, many people operate motor vehicles while they are distracted by eating, using a cellphone, talking to passengers, and countless other non-driving activities.

DAMAGES AVAILABLE

In California, bicycle crash victims are entitled to cash compensation for their economic, out-of-pocket losses. These damages include items like medical bills, lost wages, physical rehabilitation costs, and medical device expenses. With regard to medical bills and other medical expenses, attorneys often send letters of protection to third-party providers that guarantee payment when the case is resolved. So, victims get the medical care they need without having to pay out-of-pocket or rely on health insurance.

Noneconomic damages are available as well, for things like pain and suffering, loss of consortium (companionship), loss of enjoyment in life, and emotional distress. Although it is impossible to put a dollar value on the quality of life, money damages are normally the only kind of relief that the law allows.

In some cases, victims are entitled to additional punitive damages. In California, the jury may assess additional damages to deter future wrongdoing and punish the tortfeasor (negligent driver) if the victim presents clear and convincing evidence that the tortfeasor intentionally disregarded the property and safety of others by undertaking a course of action known to be dangerous. A cap may apply, in some cases.

LEGAL ISSUES IN BICYCLE CRASH CASES

To obtain these damages, victims must prove that the tortfeasor was at fault for the wreck. Such proof must be a preponderance of the evidence, which means there is more evidence in favor of the plaintiff. Put another way, if there are two stacks of paper side by side, and a person adds one sheet to the stack on the left, there is more paper in that stack than there is in the other one. Normally, there is a two-year statute of limitations in negligence cases.

Even if the motorists are clearly at fault, both they and their insurance companies often try to shift blame onto the victims. As mentioned earlier, visibility is sometimes an issue here. Indeed, tortfeasors often make statements at the scene like “he came out of nowhere” and “I never even saw her.” However, lack of visibility is never an excuse for negligence, because if it was, no one would ever cause a car crash at night or in the rain.

Bikers have a reputation for not following some traffic laws, like coming to a complete stop at stop signs or signaling turns. If a bicyclist coasts through a stop sign or makes an illegal lane change, the insurance company often tried to use the sudden emergency defense. This doctrine excuses liability if the tortfeasor was reacting to an unexpected situation. However, traffic law violations are not normally considered unexpected situations, because such events are so common. Therefore, the sudden emergency defense typically is inapplicable in bicycle crashes.

Slip and Fall Accidents

Understanding Landowner Liability In California

One of the most persistent urban legends in premises liability law is the burglar who breaks into someone’s home, is injured, and sues the property owners. In a few cases, California landowners do owe a duty of care to trespassers, but such instances are quite limited. However, in most circumstances, landowners have more liability exposure than tortfeasors (negligent drivers), so landowner negligence victims are often entitled to significant compensation.

Legal Responsibility

To determine duty, many states use a common-law sorting system that classifies victims as invitees (guests with permission to be on the land and whose presence benefits the landowner), licensees (guests with permission to be on the land), and trespassers (guests without permission to be on the land). However, this system is rather unwieldy, because many of the categories overlap, and arcane, because few people know or care who or what a “licensee” is. So, a little over a decade ago, most California courts started applying a general duty of care in these cases, which varies according to several factors:

  • Property Location: Business-owners and others who encourage people to come onto their property must take better care of it than private homeowners, or commercial owners at least have more of a responsibility to warn about possible safety hazards.
  • Likelihood of Similar Visits: Older adults go to nursing homes and teenagers go to high school athletic fields, so the required degree of care is different.
  • Likelihood of Harm: Generally speaking, swimming pools and construction sites are more dangerous than churches and synagogues.
  • Probable Severity of Harm: For the most part, the possible injuries at construction sites and swimming pools are also much more serious than the ones worshippers may sustain at synagogues and churches.
  • Knowledge of Hazard: Such knowledge can be actual (did know) or constructive (should have known).
  • Possible Protection: Owners could effectively prevent dog bites by digging moats around their property and hiring security guards, but such efforts are clearly too costly.
  • Extent of Control: Owners who lease property to a third party have less liability for falls and other incidents than owners who actually control the premises.

The jury may also consider any other factors that the judge considers to be relevant.

Slip and Falls

Falls are the leading cause of accidental injury in the United States, as there are twice as many fall-related emergency room visits as motor vehicle crash-related visits. The injuries are quite serious, especially among young children and older adults.

Knowledge is often a key issue in landowner liability cases in general, and slip-and-fall cases in particular. Most California court still use the analysis first set forth in Anjou v. Boston Elevated Railway Company (1911), which is also known as the banana peel case. Ms. Anjou slipped on a banana peel at a busy Boston train terminal. At trial, witnesses consistently testified that the offending peel looked as if it had been “tramped over a good deal,” because it was “flattened down, and black in color;” in fact, “every bit of it was black.” These details loom large in the holding of the case. For its part, the railroad company denied that it knew anything about the peel, and therefore argued that it was not responsible for Ms. Anjou’s injuries.

In finding that the railroad company was indeed liable, Justice Arthur Rugg concluded that knowledge of the defect could be imputed depending on the color of the peel.

  • Yellow Peel: If the hazard had just occurred recently, the plaintiff needs to provide direct evidence of knowledge, such as a bathroom cleaning report about a wet spot on the floor.
  • Black Peel: Since the banana peel was black, the court concluded that it had been on the floor quite some time, and therefore the owner should have known about the hazard.
  • Brown Peel: Pardon the expression, but brown peels are in a grey area, and more evidence is needed to establish or disprove knowledge.

Victims in these case are normally entitled to compensation for both economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

About the Author: Sherwin Arzani is a personal injury attorney in Los Angeles and co-founder of Citywide Law Group.