February 2018 Update
There have been several interesting developments in the area of torts over the last year. Some of the most important are summarized below.
The California Supreme Court reversed the court of appeal in Vasilenko v Grace Family Church (2017) 3 C5th 1077, holding that a landowner who sited and maintained a parking lot across the street from its premises did not owe a duty to protect its invitees from the dangers of crossing a public street. See §§1.7, 1.10, 10.13 for discussion.
In Toste v CalPortland Constr. (2016) 245 CA4th 362, the court of appeal held that a defendant’s conduct is not a cause of harm if an accident would have occurred anyway. See §1.14.
A recent court of appeal opinion held that a “professional” standard of care requires only that the professional apply the skill, knowledge, and competence ordinarily possessed by other professionals in similar circumstances. See §1.22 for discussion of Evans v Hood Corp. (2016) 5 CA5th 1022.
Hot-air ballooning involves an inherent risk of injury such that primary assumption of risk applies. See citation of Grotheer v Escape Adventures, Inc. (2017) 14 CA5th 1283 in §1.49.
A recent case out of the Sixth District Court of Appeal has signaled that recovery for emotional distress that accompanies bodily injury will be recoverable under the Montreal Convention of 1999. See §2.28 for discussion of Doe v Etihad Airways, P.J.S.C. (6th Cir 2017) 870 F3d 406.
See §3.31 for citation to Swigart v Bruno (2017) 13 CA5th 529, which holds that being hit by another’s horse is an inherent risk of horseback riding.
In the recent case of Secci v United Independent Taxi Drivers, Inc. (2017) 8 CA5th 846, the court analyzed the relationship between a taxi association and taxi drivers to determine whether the drivers were employees or independent contractors. See §§4.46–4.47.
A hot-air balloon operator is not a common carrier as a matter of law. See §5.5 for citation to Grotheer v Escape Adventures, Inc. (2017) 14 CA5th 1283.
Note that Lab C §§3351–3352 were amended to include automatic repealers, effective July 1, 2018. Different versions of those sections become effective on that date. See §6.21.
In the recent case of County of San Mateo v Superior Court (Rowe) (2017) 13 CA5th 724, the appellate court held that triable issues existed as to whether changes in the natural environment in a camping area in a county wilderness park had a causal relationship to the plaintiff’s injuries. See §8.34 for discussion.
Immunity from liability for injuries sustained while on paths adjacent to golf courses was the controlling issue in two recent court of appeal cases, one of which held that immunity applied and the other holding that immunity did not. See §8.35 for discussion of Leyva v Crockett & Co. (2017) 7 CA5th 1105and Garcia v American Golf Corp. (2017) 11 CA5th 532.
In Kumari v The Hosp. Comm. for the Livermore-Pleasanton Areas (2017) 13 CA5th 306, the appellate court held that no special format was required to notify a medical provider of an intention to sue. See §9.27A.
The EADACPA is inapplicable unless the health care provider had a substantial caretaking or custodial relationship with an elderly patient. See §9.58 for discussion of Winn v Pioneer Med. Group, Inc. (2016) 63 C4th 148.
In a case involving a patient who was injured when she tripped over a scale left on the floor of a medical facility, the court held that the case involved an ordinary premises liability action and was not subject to either MICRA or the 1-year statute of limitations for professional negligence. See Johnson v Open Door Comm. Health Centers (2017) 15 CA5th 153, discussed in §§9.76, 9.85.
The cap on noneconomic damages under MICRA applies only to claims based on professional negligence; it does not apply to other claims that arise out of the same facts. See §9.86 for discussion of Bigler-Engler v Breg, Inc. (2017) 7 CA5th 276.
In the recent case of Cuevas v Contra Costa County (2017) 11 CA5th 163, the court held that the collateral source rule did not bar evidence that health insurance benefits were available to mitigate the cost of future medical care. See §9.88.
Subsequent to the California Supreme Court’s opinion in Kesner v Superior Court (2016) 1 C5th 1132, the court of appeal held that a property owner owed no duty for secondary asbestos exposure to a wife because she and her husband were not married and did not live together during the time of exposure. See Petitpas v Ford Motor Co. (2017) 13 CA5th 261, discussed in §10.3.
The appellate court held that an invitee exposed himself to an obvious danger by standing on a diving board over an empty pool, and that the premises owner had no duty to warn the invitee of the obvious danger. See §§10.12–10.14 for discussion of Jacobs v Coldwell Banker Residential Brokerage Co. (2017) 14 CA5th 438.
In another recent case on the duty a premises owner owes to its invitees, the California Supreme Court held that an owner did not owe a duty to assist invitees in crossing a public street. See §10.13 for discussion of Vasilenko v Grace Family Church (2017) 3 C5th 1077.
A homeowner’s duty to supervise a child in a pool ended when the child’s grandfather said he would supervise the child. See §10.18 for the case of Taylor v Trimble (2017) 13 CA5th 934.
For a recent case discussing the consideration and invitation exceptions to immunity under Govt C §846, see PG&E Co. v Superior Court (2017) 10 CA5th 563, cited in §10.27.
The Judicial Council released a new jury instruction based on Webb v Special Elec. Co., Inc. (2016) 63 C4th 167. See §§11.14, 11.29 for discussion of CACI 1249 and Webb.
Pharmaceuticals and Medical Devices
The Judicial Council released a new jury instruction based on Webb v Special Elec. Co., Inc. (2016) 63 C4th 167. See §§13.5, 13.22 for discussion of CACI 1249 and Webb.
The United States Supreme Court reversed the California Supreme Court’s decision in Bristol-Myers Squibb Co. v Superior Court (2016) 1 C5th 783, holding that California’s exercise of specific jurisdiction over nonresidents’ claims against a nonresident pharmaceutical company violated the Fourteenth Amendment. See §13.26 for discussion of Bristol-Myers Squibb Co. v Superior Court (2017) ___ US ___, 137 S Ct 1773.