Appellate Court Imposes Arbitration on Harassed Employee

In a decision reached earlier this month, the Second District Court of Appeals held that an employee's racial discrimination and sexual harassment claims (among others) have to be arbitrated as opposed to being tried before a judge and jury.  In that case, a female employee of Mexican ancestry, Maribel Baltazar, working for Forever 21, claimed she was sexually harassed and subjected to discrimination because of her race and sex.  At the time she filled out her job application, she was presented with an "Agreement to Arbitrate" which she initially refused to sign.  Such an agreement effectively waives an employee's right to a jury trial for any claim arising from the employment.  After several employees of Forever 21 considered her refusal during the application process, Baltazar was finally told she must "sign it or no job."  She signed and after working for nearly four years with the company, Baltazar finally felt compelled to leave because of harassment and discrimination, and she quit.  The company and the individual employees named in the lawsuit brought a motion to compel based on the arbitration agreement.  In spite of the fact the trial court had ruled in Baltazar's favor, the appellate court decided the agreement was not "unconscionable" under the law and was therefore enforceable.  

What this recent case demonstrates, once again, is the predisposition of the courts to order even claims involving fundamental rights (guaranteed by multiple statutes) to arbitration.  Generally, the arbitration process tends to favor employers in as much as getting the case to arbitration can be much slower than a trial, and it is generally kept from the public's view, where a company's discriminatory conduct can remain hidden.  Additionally, many trial attorneys feel the arbitration process may result in lower awards to the injured party.  On the other hand, some lawyers believe arbitrators are often more fair-minded and cannot be moved by passion or prejudice, when compared to a jury.  Arbitrators tend to be experienced lawyers and retired judges.

As a prospective employee, when you sign an arbitration agreement with the potential employer, you should be mindful of the fact you are thereby waiving your right to a jury trial if your employer treats you unlawfully.  Your case will instead be decided by an arbitrator or panel of arbitrators who may not identify as readily with your side of the case.  Additionally, some feel that the threat of a public lawsuit often moves a large company to resolve meritorious claims, something that may be absent when the case is sent to arbitration.  Public records are generally not kept of arbitration outcomes and what information is available is not readily accessible to the public at large.  In spite of the potential pitfalls of arbitration, an employment law attorney can be of assistance in evaluating the merit of a wrongful termination claim.  

Riverside Accident Takes Two Lives Near Bus Stop

A driver reportedly lost control of his car and struck pedestrians at a Riverside bus stop, killing two and seriously injuring two others, according to NBC news.  The accident happened this afternoon at about 1:00 p.m. on Magnolia Avenue fairly near its intersection with Tyler Street, not too far from the Galleria at Tyler mall.  According to news reports, the two fatalities involved a woman in her 20s and a little girl, 2 to 3 years old.  A second woman and and a man were hospitalized in critical condition with injuries to their lower extremeties.  The driver of the Kia Optima involved in the accident, a 50-year-old male, was not injured.  He was taken to the Riverside Police station for questioning.

Cause of This Tragedy

While the precise cause of this accident has not yet been reported, it does not appear to have been related to any serious medical condition on the part of the driver, who was reportedly taken to the police station after the collision without first receiving any medical treatment.  Had this tragedy been related to a heart attack or seizure, you might expect the driver to have been taken to the hospital along with the injured pedestrians.  The driver's age, 50, would not seem to explain the accident, as it might be with an elderly driver who confuses the accelerator and brake.  As of this moment, distracted or impaired driving cannot yet be ruled out as a potential cause.  One thing is certain, however, the pedestrians waiting at or near the bus stop were not to blame.  In all likelihood, from a purely civil liability assessment, the driver will be found solely at fault for this horrific accident, and the injuries and damages will be his responsibility.

Riverside Automobile Accidents

With regard to the 13 cities in California with a population over 250,000, Riverside actually ranks near the bottom in terms of the number of automobile accidents resulting in injury or death.  According to the California Office of Traffic Safety, Riverside ranked 13th in pedestrian accidents in 2010.  Only a total of 67 pedestrian accidents, involving death or injury, were reported in all of 2010.  In light of this, the accident above might appear even more difficult to understand.  Riverside is apparently a relatively safe community in this context, making the determination of the precise cause of the collision all the more important.  Certainly the families of the victims will want and they very much deserve answers.  While nothing can ever undo the harm and the loss suffered, determining the cause of the accident can at least bring some closure.

When evaluating the cause of an accident and the injuries and/or death resulting, a personal injury attorney will need to gather essentially the same evidence as the investigating police agency.  Fortunately, the initial work done by the police can aid in making a liability determination or at least provide the foundation for a thorough reconstructive analysis.  In the case above, because death and serious injuries are involved, the investigation by law enforcement will likely be quite thorough, but it is not uncommon for a civil litigator to discover additional (sometimes contradictory) facts painting an even more complete picture.  

SOURCE:  Car Crashes Into Riverside Bus Stop, Killing Two, NBC Southern California, by Melissa Pamer and Nyree Arabian, December 28, 2012

Fatal Pasadena Police Pursuit Cuts Two Lives Short

According to KTLA news, a police pursuit in the City of Pasadena on Christmas has left two people dead.  The victims, a boy 11 years old, and a woman, 26 years old, were among the five occupants of a minivan that was struck by an SUV fleeing the police.  Apparently, the SUV had failed to stop at a stop sign earlier and was being chased by police when it ran through a red light at the intersection of Claremont Street and Marengo Avenue, where it struck the minivan.  KTLA, citing police sources, has reported that the occupants of the minivan were family members visiting Southern California from the San Francisco area.  The three surviving passengers in the minivan and all four occupants of the SUV were taken to the hospital for treatment.  Since none of the occupants of the SUV would admit they were the driver at the time of the crash, all four were arrested and booked for murder.

LIABILITY FOR THE FATAL CRASH

In the case above, it might seem the City of Pasadena would have some responsibility for the collision and the damages sustained by the victims and their families.  However, as a public entity, Pasadena is fairly well protected from liability because of governmental immunities.  Those legal protections generally require certain policies and training be in place relative to police pursuits before they become operative.  The liability of the driver and perhaps owner of the of the SUV would seem fairly easy to establish.  The driver, whichever of the four occupants it was, reportedly failed to stop for a red light, a violation of California Vehicle Code Section 21453.  That violation of the traffic laws should be enough to establish the driver was negligent and therefore liable for the accident.  Since the occupants of the SUV have thus far refused to cooperate with police in identifying the driver at the time of the collision, the victims and their families would likely need to file suit against all of the occupants. The burden would then be shifted to these defendants to identify the driver or jointly suffer the consequences of an adverse judgment.

WRONGFUL DEATH CLAIMS

As a result of this tragic crash, two lives were cut way too short.  Their families would certainly have the right to pursue wrongful death claims.  The parents of the 11-year-old and the husband/children of the woman killed would be the likely plaintiffs in any such action.  As a society, we exact justice collectively by way of a criminal conviction and the individual victims and their family members may seek civil justice by way of a lawsuit.  In those types of cases, the families are compensated for the lost relationship with their loved ones, including the loss of financial support that would have been provided by the decedent.
When a wrongful death case is pursued, an experienced personal injury attorney can be of assistance in evaluating those claims.  Often the potential recovery is dictated by the closeness of the relationship between the plaintiff and the decedent and the extent of financial support that was provided in the past and would likely have been given the future.  Attorneys with experience at handling these wrongful death cases have the insight necessary to assess their value and collectibility 

SOURCE:  WOMAN, BOY KILLED IN PASADENA PURSUIT CRASH, KTLA News, December 26, 2012, by Kellan Connor

Do We Arm Our Teachers in Orange County?

According to KTLA news, a city councilman in Orange County is calling for teachers to be armed in response to the Sandy Hook shooting in Connecticut.  The San Juan Capistrano City Councilman, Derek Reeve,  has reportedly said that "efforts must be taken to empower teachers, staff and parents to protect our children.”  The comments, which also included a recommendation for teacher training and to permit parents to carry guns on school campuses, were suggested as options to protect children in situations like the one in Connecticut.

Arming Teachers and Allowing Weapons on School Campuses Could Subject School Districts to Civil Liability

In general, criminal acts committed by third parties are not the responsibility of the property owners or operators where the incident occurs  However, where the property owner and the victim have a "special relationship" (as exists between a teacher and student) there may be a duty of protection, where the danger to the victim is reasonably foreseeable.  In light of tragedies like Sandy Hook, it might seem the obligation of school districts around the country would be to arm teachers and parents in order to better protect the children on campus.  But the analysis cannot end there.
The duty of protection requires "reasonable" efforts be made, not efforts that could clearly cause more harm than good.  One can easily imagine a school teacher, with only limited firearms training, making the wrong decision to fire on someone who appears to pose a threat, injuring or killing someone unnecessarily.  Do we really want to force school teachers to make life-or-death decisions that trained law enforcement officers would have a hard time making?  

Aside from the potential for a teacher to negligently discharge a weapon, liability would almost certainly be imposed on a school district if a teacher carelessly let their weapon fall into the hands of child who was then injured or killed.   So many scenarios could easily give rise to liability, and the public entity operating a school would have to suffer the civil liability.  In fact, guns in and around schools are perceived as such a threat in general that California enacted the Gun-Free School Zone Act of 1995, criminalizing the possession of a firearm in a school zone.  Do we seriously want more guns around school-aged children?

If all of these potential teacher-related problems were not enough, the councilman's suggestion also included allowing parents onto school campuses with a firearm.  In that scenario, we would then have some untrained, perhaps unstable, person wandering onto a school campus with a loaded gun.  That would carry with it its own set of potential liabilities and problems.  Even if the teachers and the parents were armed, in reality, what chance would any of these teachers or parents have against a homicidal maniac with an assault weapon?  Not much.  

From a purely legal perspective, the liabilities associated with arming teachers and parents on school grounds would far outweigh any probable benefit.  The likelihood of an accidental injury or death would be increased exponentially if we arm so many people on our school campuses.  There has to be better, less risky steps we can take to protect our children.

SOURCE:  O.C. Councilman Wants Teachers To Be Armed, KTLA News, December 20, 2012

Guilty Plea In Fatal DUI Crash In Perris

A 53-year-old woman pled guilty to vehicular manslaughter charges earlier today in connection with a fatal DUI collision on December 7th.  According to the Press Enterprise, the Defendant, Theresa Jean Estes, may face up to 10 years in prison for the crash that took the life of an 18-year-old girl, Ashleigh Brooks of Lake Elsinore.  The incident occurred when Estes pulled out in front of Brooks on Highway 74 Spring Street, near the City of Perris.  The cars collided and then Brooks' Honda was involved in a secondary collision with a truck.   Brooks had been headed home for a birthday dinner at the time of this tragic crash.

DUI Crashes Occur With Alarming Frequency

According to the story above, the drunk driver was apparently on probation for a prior DUI conviction at the time of the December 7th collision.  If that were not enough, her own family lost one of its members - her father - in an alcohol related accident.  In spite of all this, Estes got behind the wheel of her car drunk and took the life of a teenaged girl.  The prevalence of accidents caused by impaired drivers is difficult to understand when so much information is available to the general public about the enormous suffering such behavior can cause.  The Centers for Disease Control and Prevention has reported that in 2010 more than 10,000 people were killed in alcohol-impaired driving crashes.  That number represents nearly one-third (31%) of all traffic-related deaths in the United States.  Not too surprisingly, as as demonstrated by the case above, drivers with a blood alcohol content (BAC) of 0.08% or higher involved in fatal crashes were four times more likely to have a prior conviction for DUI than were drivers with no alcohol in their system. 

Civil and Criminal Responsibility

In every DUI crash involving injury to an innocent victim, the impaired driver owes a debt to society as a whole (theoretically paid via a criminal conviction) and to the particular victim and their family by way of a personal injury or wrongful death claim.  Issues of liability against the alleged DUI driver are typically straight forward, but the claims can be mired because of comparative negligence on the part of the victim and complex issues of damage assessment.  A personal injury attorney with a long history of handling these cases can be of valuable assistance in taking the necessary steps to protect your rights and ensure optimal compensation.  Contacting an Orange County auto accident attorney is often the first step toward obtaining civil justice.

SOURCE:  PERRIS: Woman pleads guilty in DUI crash that killed teen, Press Enterprise, December 12, 2012,  Sarah Burge

Woman Struck and Killed In Riverside While Pushing Wheelchair

The Press Enterprise has reported an accident in Riverside in which a woman pushing her wheelchair-bound son was struck and killed.  The accident happened yesterday just before 5:30 p.m. on Magnolia Avenue near its intersection with McCray Street.  A pickup truck, operated by 76-year-old man from Corona, struck the woman but just missed impacting her disabled, adult son.  Both were taken to a local hospital where the woman was later pronounced dead.  The woman was pushing her son westbound across Magnolia at the time of the accident.  There is no marked crosswalk at this intersection.

Anyone with information or who witnessed the accident should call Detective Rick Prince at 951-826-8722.

Intersection Accidents Involving Pedestrians

As you might expect, intersection accidents involving pedestrians are not uncommon.  It is often assumed that someone crossing the street outside of a marked crosswalk is solely responsible for any accident that occurs.  That is not, however, the law in California.  In automobile-versus-pedestrian accident cases, the appellate courts have held that the driver of a car must, in order to avoid liability, keep a proper lookout for persons on highway.  Even though the driver may be traveling at lawful rate of speed, he still remains bound to anticipate that he may meet persons at any point on the roadway.

Factors To Be Considered in Determining Liability

In the case above, regardless of whether the driver was obeying the speed laws, he may still be found negligent in relation to the accident.  For example, if the woman and her son were visible for more than 100 feet (which is about the distance headlights will illuminate the roadway ahead) a driver traveling at the posted speed limit (35 mph in this case) would have at least two seconds to avoid the accident.  If it can be shown the visibility was even greater or his speed slower then the wrongful death claim against the driver would be strengthened.  It should be kept in mind that pedestrian visibility is one the leading pedestrian safety problems at intersections.  Pedestrians often assume they can be seen for a greater distance than they are actually visible.

An experienced Orange County Car Accident Lawyer with experience handling this type of case can be of assistance in evaluating wrongful death and pedestrian accidents like the one above.   A free consultation is available to injured parties and the families of accident victims.

SOURCE:  RIVERSIDE: Mother Pushing Wheelchair is Hit, Killed, David Keck, Press Enterprise, December 6, 2012

7-Year-Old Girl Hospitalized in Orange County Hit-and-Run

Police are searching for a hit-and-run driver who struck a 7-year-old girl in Santa Ana on Tuesday evening, according to KTLA news.  This horrific, Orange County accident was captured on security cameras near the scene, and police are currently looking for the driver of what they believe is a black Toyota 4Runner.  The little girl was with her mother and was running across the street to get to her home, an apartment complex on the opposite side of the street.  She is still in the hospital following surgery to relieve the swelling on her brain and is expected to survive.

Anyone with information about this tragedy should call the Santa Ana Police Department at 714-245-8665

DUTIES OF DRIVERS AND PEDESTRIANS

In general, a driver no right of way superior to that of a pedestrian, and each has equal and reciprocal rights, although driver, being in control of dangerous instrumentality capable of inflicting fatal injuries, is charged with a greater amount of care than pedestrian in order to be bound to same standards of ordinary care.  Pedestrians who cross in the middle of a block do not have an equal right to be in path of oncoming motorist, but they are not fair game for a driver who operates his vehicle without regard for what may unexpectedly appear in street.  

ACCIDENT RECONSTRUCTION AND LIABILITY

Here, from the videotape, it appears the driver is traveling faster than 25 miles per hour but is using the headlights on the vehicle.   Given the apparent speed, the driver was likely in violation of the California Vehicle Code since the accident scene was within a residential area, with a speed limit of 25 mph.  In addition to the speed, the distance at which the victim could be seen and the time the driver had to react play a role in assessing liability.  If it can be shown the driver should have seen the little girl for more than 1 1/2 to 2 seconds prior to the impact and failed to take sufficient, evasive action, the bulk of the liability would likely rest with the driver.

Any personal injury case brought on behalf of the little girl in the accident above will require careful, detailed consideration of the facts and circumstances that will ultimately be necessary to reconstruct this serious accident.  An experienced Orange County car accident attorney can be of help in assessing this type of injury case.  If you or a family member is an accident victim, you should make an informed decision about your rights and whether compensation is available for injuries and damages sustained.

SOURCE:  7-year-old Girl Hospitalized in Santa Ana Hit-and-Run, KTLA News, December 6, 2012

Orange County Slip and Fall Verdict Upheld

A verdict rendered by an Orange County jury in a slip and fall case was upheld on appeal last month despite claims by the injured party's attorney that there had been juror misconduct.  The verdict in favor of the defendant homeowners and the trial court's decision not to grant a new trial trial were affirmed by the Fourth District Court of Appeals despite evidence that the defense verdict was reached after the jury wrongfully considered evidence of liability insurance against the trial court's instructions.  

According to one juror, the jury discussed the belief that the plaintiff must have already been paid on a homeowner's insurance claim by an insurance company for the slip and fall injury that was the subject of the case.  The jury reportedly wondered aloud and was concerned that a verdict in the injured party's favor would be a ‘double recovery.’

The Alleged Misconduct and The Law

Assuming the jury was of the misimpression that a verdict for the injured party would be a "double recovery" because of prior insurance payments, it would be representative of one of the most unsettling facets of a jury trial.  Every juror enters the deliberation room with their own life experience and perceptions as to how the civil justice system works.  There is little to nothing the attorneys in the case can do about that.  However, the jurors are instructed by the court at the close of a civil trial to follow the law and are specifically told their training or experience is not a part of the evidence to be given consideration.   In other words, jurors are supposed to consider ONLY the law and the facts presented within the four walls of the courtroom, and the alleged misconduct above demonstrates why this is so important.

Evidence of Insurance Is Inadmissible

Under California law, a civil jury cannot consider whether any of the parties in a case has insurance, and they are specifically instructed that insurance is totally irrelevant.  Any juror in the above case who may have believed the plaintiff would receive a double recovery by way of a favorable verdict would be grossly misinformed.  The homeowner's insurance company has a duty to defend and indemnify the homeowner relative to personal injury claims and lawsuits.  The homeowner's insurance carrier essentially steps into the shoes of the homeowner for purposes of paying claims or a verdict.  In other words, the injured party generally can recover from only one source and not both.   This is known as the single satisfaction rule, and it prevents unjust enrichment to a party to a lawsuit.

The complexities of premises liability law, jury trials and insurance-related matters are best left to experienced injury trial attorneys.  If you have been injured in a slip and fall or other accident, it may be in your best interests to contact an Orange County injury lawyer for advice.

SOURCE:   Barboni v. Tuomi (2012) 210 Cal. App. 4th 340

La Habra Crash May Have Been DUI Related

According to the Orange County Register, a 55-year-old man was pronounced dead at the scene of a traffic collision in La Habra on Sunday night.  The two-vehicle crash occurred at 10:33 p.m. on Harbor Boulevard and Arbolita Drive.  Citing official sources, the Register  reported that one of the vehicles actually rolled off the roadway.  The deceased driver has been identified as Oscar Rodriguez of Buena Park.  The driver of the second vehicle involved in this Orange County auto accident was reportedly uninjured.  The La Habra Police Department is investigating the accident as a possible DUI.

Traffic Fatalities Actually On The Decline

According to statistics published by the California Office of Traffic Safety, the number of fatal automobile accidents and the number of DUI fatalities occurring on California actually decreased, as of the time the numbers were last reported.  In 2010, California’s traffic fatalities decreased 11.9 percent, reaching their lowest level since the federal government began recording traffic fatalities in 1975.  Alcohol-impaired driving fatalities (fatalities in crashes involving a driver or motorcycle rider with a blood alcohol concentration (BAC) of 0.08 or greater) dropped by 14.4 percent from 924 in 2009 to 791 in 2010.   The 2010 figure is the lowest DUI death total ever.  In spite of this trend, nearly every week a fatal or serious-injury automobile accident is reported in Orange County.  While the recent numbers are encouraging, if we can further diminish the number of alcohol and drug-related crashes, we can greatly diminish the risk we all take while behind the wheel.

Fault For This Accident

A complete accident reconstruction will likely be necessary in order to completely understand this tragedy and assign liability for Rodriguez' death.  At this point, we do not know which of the drivers, if either of them, may have been impaired behind the wheel.  In addition to the impairment issue, there is also the fact the roadway where there this accident happened is curved, and the roadway was wet from the rain.  With all of these factors to be considered, fault for this accident will require a detailed analysis.

Assuming the accident was caused by the neglect of the surviving driver, Rodriquez' family would be legally entitled to pursue a claim for wrongful death.  Assessing the liability picture and the potential damage recovery is something that can be addressed by an experienced Orange County injury attorney.

SOURCE: 55-year-old man dies in La Habra crash, Orange County Register, Alejandra Molina and Sean Emery, December 3, 2012