Personal Injury

• McMahon v. Craig

Facts: McMahon is the owner of a purebred dog named Tootsie, who is the last of her bloodline. When Tootsie became ill, McMahon took her to Craig, a veterinarian. Craig recommended corrective surgery with possible complications. McMahon informed Craig she was very fond of the dog prior to the procedure. The dog suffered these complications and died. Craig informed McMahon the dog died but hid the cause of death from her. McMahon sued Craig for intentional infliction of emotional distress and other charges. The trial court granted a demurrer without leave to amend, on the grounds a pet owner cannot be emotionally damaged for injuries caused by a veterinarian’s malpractice. The trial court also struck from the complaint statements of emotional distress. McMahon appealed the demurrer, pleading when Craig intentionally hid the reason for the dog’s death his conduct was outrageous.

Holding: Affirmed. Any extension of a duty of care to avoid causing emotional distress to pet owners is a matter best left to the legislature. Further, in evaluating whether a defendant’s conduct is outrageous it is not enough the defendant acted with a fraudulent intent. The conduct must be so outrageous in character to be utterly intolerable in a civilized community. Here, Craig’s attempt to hide his malpractice after McMahon knew it had died was not outrageous.

• Tan v. Arnell Management Co.

Facts: Plaintiff was shot in an attempted carjacking in an ungated portion of the common area of an apartment complex and rendered quadriplegic. The incident occurred at about 11:30 p.m. when he was driving about the apartment complex looking for an open parking space. He eventually parked his vehicle near the leasing office which was beyond the gated confines of the complex.

The trial excluded plaintiff’s evidence of prior similar criminal activity which consisted of 10 incidents which plaintiff’s expert argued placed the owner and property manager on notice of violent incidents including three very similar violent incidents defined as sudden attacks, late at night at the ungated portion of the premises.

Holding: Prior violent criminal acts lessen degree of foreseeability required by landlord in premises liability case. In reversing the trial court’s decision, the Appellate court noted that perfect identity of prior crimes to the attack on plaintiff is not necessary, rather, under the sliding scale balancing formula, and given the minimal burden placed on the landlord in the subject case, “the three prior incidents cited are sufficiently similar to make the assault on plaintiff foreseeable and to place a duty of care on defendants.”

• Van Horn v. Watson

Facts: After a night of drinking and smoking marijuana together, plaintiff and defendant Lisa Torte were traveling in separate vehicles. The vehicle that plaintiff was in spun out and struck a light pole. Torte’s vehicle stopped behind plaintiff’s car and the passengers attempted to assist the occupants. Torte claimed that she saw smoke coming from the vehicle and carefully removed plaintiff for fear the vehicle would catch fire. In contrast, plaintiff and co-defendants claim there was no indication the vehicle might explode and that Torte pulled plaintiff out like a rag doll. Plaintiff sustained an injury to her cervical vertebrae, which resulted in paralysis. Plaintiff claimed that defendant Torte’s conduct in jerking her from the car caused the paralysis.

Torte obtained summary judgment in the trial court on the grounds that the Good Samaritan statute provided immunity for any injury she may have caused in rendering aid. The section relied upon provides, “no person who in good faith, and not for compensation, renders emergency care at the scene of an emergency shall be liable for any civil damages resulting from any act or omission. …”

Holding: The California Supreme Court disagreed with the trial court’s decision and interpretation of the Good Samaritan immunity statute. Because Torte was not rendering “emergency care,” she was not protected. The duty of a Good Samaritan was summarized by the California Supreme Court as follows:

“While there is no general duty to help, a Good Samaritan who nonetheless undertakes to come to the aid of another is under a duty to exercise due care in performance. … it is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to a duty of acting carefully, if he acts at all.”

• Medical Insurer's Negotiated Rate Differential Between the Full Amount of the Medical Provider’s Bills and the Lesser Amount Paid by the Private Health Care Insurer is Subject to Collateral Source

(Howell v. Hamilton Meats & Provisions, Inc., November 23, 2009, 4th Appellate District, Divsion 1, 2009 DJDAR 16478)

A car versus commercial truck motor vehicle accident caused the car driver significant personal injuries resulting in two spinal fusion surgeries.  The plaintiff was insured by PacifiCare PPO which paid $59,691.73 of her $189,978.63 medical bills.  The remainder was written off and permanently adjusted pursuant to the PacifiCare contract with her health care providers.

At trial, the defense sought a post-trial reduction of plaintiff’s medical special damages from $189,978.63 to the amount paid by her health care provider, $59,691.73.  The trial court granted the post-trial motion, but the Fourth Appellate District overturned the trial court allowing the plaintiff to obtain the full amount of her medical expenses, though a significantly lesser sum was actually paid in full satisfaction of the billing.

The Appellate Court started with California Civil Code §3333 which states that in negligence cases, the measure of damages is the amount which compensates for all detriment proximately caused by the injury-producing event.  California courts have held that the special damages a plaintiff may recover in a personal injury action for past medical expenses are limited to the reasonable amount paid or incurred, whether by the plaintiff or a collateral source.  This analysis set up a dispute as to whether the amount incurred (the full amount billed) versus the amount actually paid (the lesser amount paid by PacifiCare) was recoverable by this plaintiff.  This court answered the question by applying the collateral source rule that provides that where an injured party receives some compensation for his injuries from a source independent of the tortfeasor, such payment should not be deducted from the damages which the plaintiff would otherwise collect from the tortfeasor.  Extending this protective doctrine in favor of the injured plaintiff, the court allowed her to recover the full amount of medical billings, though her health insurance carrier paid but a fraction of them in full satisfaction of all of her bills.  The court called upon the legislature to weigh in on a plaintiff’s recovery of full medical billings versus amounts paid by private health insurers.

This case will very likely be reviewed by the California Supreme Court which should once and for all weigh in on the proper measure of medical special damages when a private health care insurer has paid a fraction of the billings pursuant to health care provider contract, and the damages are fully satisfied without further contribution by the injured plaintiff.

Our firm has very strong feelings about the proper way to present this issue to a trial judge and on appeal.  Rather than focus on the medical bills, defense attorneys should focus on the CACI jury instructions which provide that the reasonable amount of medical bills is a question of fact for the jury’s determination.  That reasonable value can be established any number of ways including but not limited to amounts paid and accepted in full for the services as well as expert testimony utilizing private health care insurance contracts to set the basis for the reasonable value of service.

• Cabral v. Ralphs Grocery Company

Facts: On February 27, 2004, Cabral's pickup truck collided with a big rig driven by Hen Horn (an employee of Ralphs), which was stopped on the side of the freeway in an emergency parking area. Cabral died in the collision and his widow sued Ralphs for wrongful death. Ralphs cross-complained for property damage to the big rig. The jury returned a verdict for Plaintiff on her complaint and for Ralphs on its cross-complaint. Ralphs appealed, contending that, as a matter of law, Horn owed no duty to Cabral to avoid stopping in the emergency parking area.

Holding: Reversed.  There is no duty on the part of Ralphs (and its driver, Hen Horn) to ensure that Cabral's vehicle, upon leaving the roadway, would have a "safe landing." As a matter of law, a reasonable person would not conclude that Horn’s act of stopping on the side of the freeway, sixteen (16) feet away from the edge of lane four, in the dirt area, would subject motorists using the freeway to an unreasonable risk of harm.