Primary Assumption Of The Risk Applies To Performing On A Stage
In an appeal handled by Daley & Heft partner Lee H. Roistacher, the Court of Appeal agreed that primary assumption of the risk applies to a person on a stage. A musician setting up his equipment on stage fell off the stage. Recognizing the trend of applying primary assumption of the risk (Daley & Heft case Knight v. Jewett)to a wide variety of activities and professions, the Court of Appeal [...]
Orders Granting Or Denying Anti-SLAPP Motions Are Immediately Appealable; But Not Always
Code of Civil Procedure section 425.16(i) provides “[a]n order granting or denying a special motion to strike shall be appealable under Section 904.1.” Code of Civil Procedure section 904.1(a)(13) provides that an order granting or denying a motion to strike under section 425.16 is immediately appealable. Does this rule change if the matter is a limited civil case? Apparently so. Code of Civil Procedure section 904.1 governs appeals in cases [...]
Voluntary Dismissal Exposes Plaintiff To CCP Section 998 Penalties
In Mon Chong Loong Trading Corp. v. Superior Court , the Second Appellate District confronted an issue of first impression; whether a voluntary dismissal subjects a plaintiff to CCP section 998 penalties. The court concluded that it did. A plaintiff may fail to obtain a more favorable judgment or award by failing to obtain any award at all, as in the case of voluntary dismissal. The law already recognizes this fact. [...]
Guidance Provided Regarding Government Entity Obligations Under Title II of the ADA To Provide Curb Ramps Upon Resurfacing Of Existing Streets, Roads and Highways
Under Title II of the Americans With Disabilities Act, a public entity must install curb ramps where street level pedestrian walkways cross curbs when a street, highway or roadway is altered. Alterations include reconstruction, rehabilitation, resurfacing, widening and similar projects. Maintenance activities are not considered alterations. Over the past few years, state and local governments sought guidance on whether the use of non-traditional resurfacing methods (methods other than adding a [...]
Successive CCP 998 Offers: Which One Trumps?
Raymond Martinez, et al. v. Brownco Construction Company, Inc. Filed June 10, 2013 California Code of Civil Procedure Section 998 provides that if a settlement offer made by a plaintiff is not accepted, and the defendant fails to obtain a more favorable judgment or award in any action or proceeding, the court or arbitrator, in its discretion, may require the defendant to pay a reasonable sum to cover post-offer costs [...]
Corenbaum v. Lampkin: Court of Appeal Slams the Howell Door on Personal Injury Plaintiffs
The Court of Appeal, Second Appellate District, Division Three filed its decision in Corenbaum v. Lampkin, B236227, on April 30, 2013. The decision dealt personal injury plaintiffs a serious blow, closing the door on two potential openings left by the Supreme Court's Howell v Hamilton Meats case. In Howell, the Supreme Court limited personal injury plaintiffs to recovering the amount of past medical bills that were actually paid or owing [...]
US Supreme Court Limits Warrantless Forced Blood Draw in DUI Investigations
April 17, 2013. Missouri v. McNeely. Mr. McNeely was stopped by a Missouri police officer for speeding and crossing the centerline. After declining to take a breath test to measure his blood alcohol concentration (BAC), he was arrested and taken to a nearby hospital for blood testing. The officer never attempted to secure a search warrant. McNeely refused to consent to the blood test, but the officer directed a lab [...]
Daley & Heft’s Landmark Knight v. Jewett Decision Expanded by California Supreme Court in Bumper Car Case
December 31, 2012. In Nalwa v. Cedar Fair (2012) 55 Cal.4th 1148, the California Supreme Court held that the primary assumption of risk doctrine (originally expressed in Daley & Heft's Knight v. Jewett decision) applies to bumper car collisions, regardless of whether or not one deems bumper cars a "sport." Plaintiff was a patron who fractured her wrist on a bumper car ride at an amusement park. She sued defendant park owner [...]
California Supreme Court Grants Review in Primary Assumption of Risk Case
April 10, 2013. In Gregory v. Cott (2013) Cal.App.4th 41 (rev. granted 4/10, S209125)Gregory, an in-home caregiver for an Alzheimer’s patient was injured when the patient lunged at her. The Second Appellate District, Division Five, upheld the trial court’s conclusion that primary assumption of the risk barred a caregiver’s claims for injuries against the patient and her husband. In concluding that the risk of injury caused by the patient was inherent [...]