Archive for March, 2011

James Otto Heiting featured in the National Law Journal

March 28, 2011

Heiting & Irwin is proud to announce that James Otto Heiting has been featured in the National Law Journal’s recent article “Hard Times Make for Reluctant, Sometimes Angry, Jurors.” The Article can be read here.

James Otto Heiting is the managing partner of Heiting & Irwin and has been practicing law since 1976.  Mr. Heiting is admitted to practice before all courts of the state, the federal courts, the United States Court of Federal Claims, and the California and United States Supreme Courts.  He is the only past President of the State Bar of California ever elected from the Inland Empire and handles civil litigation matters throughout California, recovering over $100 million for clients, dealing with wrongful death, serious injury, professional malpractice and transportation accidents. Also past President of Riverside’s County Bar, his firm has served the Inland Empire for over 30 years.

Visit HeitingandIrwin.com for more information.

The article:

Hard Times Make for Reluctant, Sometimes Angry, Jurors.

by Amanda Bronstad

It was supposed to be a simple damages trial involving a UPS driver seeking $1.8 million for injuries after a beer truck hit her while she was delivering a package. But when the lawyers began voir dire, members of the jury pool began to protest. “We pay too much,” one of them yelled. “There are too many lawsuits,” proclaimed another. Things devolved from there, according to lawyers for both sides, as additional prospective jurors joined in the catcalls. “One lady actually said: ‘You mean you want me to sit here two weeks, and at the end of the two weeks I’m supposed to reward her for me sitting here not getting paid?’ ” said Jim Heiting, the plaintiffs’ lawyer in the case.

Finally, Heiting, of Riverside, Calif.-based Heiting & Irwin, and Anheuser-Busch Cos. Inc. attorney James Reiss of Reiss & Johnson in Rancho Cucamonga, Calif., agreed to dismiss the entire panel. “I’ve never heard people make comments from the audience as if it’s a talk show,” Reiss said at the time, according to a transcript.

Part of the problem was the setting that day, Heiting said. The Riverside County, Calif., Superior Court’s civil caseload had so overwhelmed courthouse capacity that trials have spilled over into “these little courtrooms over at the elementary school,” he said. Far from basking in the majesty of the courthouse, prospective jurors crossed a grassy area from one building to another when called. The drinking fountains were at an adult’s knee-level. The judge, dressed as usual in his official robes, was sitting on a 10- by eight-foot wooden platform raised about six inches from the floor. He presided from behind a folding table in lieu of the traditional bench.

Even more than the physical challenges, the pressures on people in this struggling economy played a significant role in what happened that day, Heiting said.

It’s a refrain being heard across the country: As hard times stretch into their fourth year, people are becoming increasingly uptight about leaving their work to serve on a jury. Statistics are hard to come by — nobody, apparently, is measuring the phenomenon. Still, lawyers report anecdotally that more prospective jurors are asking to be excused for financial reasons. Many are self-employed and worried they’ll lose business. Others fear their employer will find it all too easy to replace them while they’re out on jury service — permanently, perhaps.

And although rare, in the most extreme cases prospective jurors have become incensed at the lawyers, the case and the entire judicial process.

“I spent the night pacing the hall wondering what I’m going to do with these people,” Heiting said of the prospective jurors in his case.

“It was obvious they didn’t want to be there, weren’t going to follow the law and were concerned about themselves. The economy plays a large part in this. People are out of work and they’re looking for work and are now asked to spend two weeks on a jury. It takes them out of their ability to look for work, commit to the job. People are scared.”

That it’s illegal for employers to punish workers for jury service doesn’t appear to count for much. “They’re more nervous about spending a week at trial, and their employer is saying, ‘You’ve got important stuff to do here,'” said Noelle Nelson, a trial consultant and psychologist in Los Angeles. “The employee is going: ‘Shoot, if I’m out a week, what if the temp is better than me?’ That’s scary. It’s scarier now than it was three years ago.”

RISK-ADVERSE

Charles Douglas, founding partner of Douglas Leonard & Garvey in Concord, N.H., agreed. “Missing a week of work could mean missing work entirely,” he said. “And in this economy, they know that jobs aren’t plentiful, so they don’t take risks.”

Douglas, a former justice of the New Hampshire Supreme Court, said that he and his law partners have found judges more accepting of the financial hardships raised by prospective jurors. Such hardships are real, he said — not the traditional excuses by jurors who just don’t want to serve on a jury. Lawyers recognize that a prospective juror who just got a new job after being out of work for 10 months is not worth selecting if he’s not going to be focused on the case, he added.

Particularly troubled are people who work in small businesses or are self-employed, said Mark Sisti of the Sisti Law Offices in Chichester, N.H. “If you lose a customer in this climate, it’s a real loss,” he said.

Employees also are feeling pressure. According to a U.S. Bureau of Labor Statistics’ Employee Benefits Survey last year, 72 percent of employers offered paid leave for jury service. Greg Hurley, an analyst at the Center for Jury Services at the National Center for State Courts, said the bureau’s figure appeared “in line” with the nationwide trend,” although he acknowledged that his organization doesn’t keep comparative statistics.

He said some states, such as Massachusetts and Connecticut, require employers to pay their employees who serve as jurors — but certainly not all.

Gregory Smith, a solo practitioner in Beverly Hills, Calif., who said he has handled more than 70 trials in his career, put the figure much lower. About 90 percent of individuals on an initial juror list are not getting paid, he asserted. “That’s definitely a trend going on because we used to see a lot more jurors getting paid,” he said. “We’re not seeing that anymore.”

That means that most people already have a lot on their minds before being called for jury service. About 55 percent of Americans have suffered from various economic hardships, such as missed mortgage payments or unemployment, during the recession, according to a Pew Research Center study released on Sept. 24. Of those, 60 percent had to withdraw money from savings or retirement to pay the bills, the study found.

Nelson, the trial consultant, said she’s advised some of her clients to settle cases that might strain jurors’ sympathy. “If someone has a finger lopped off, that might have been traumatic, but they’re not a concert pianist or surgeon,” she said. “The jurors are much less empathetic than they would’ve been a few years ago.”

In some cases, people have lashed out at the lawyers. Last year, Smith ran across an angry group of prospective jurors in a case he brought on behalf of a deputy who sued the Los Angeles County Sheriff’s Department after his supervisor allegedly sexually harassed him. “In this particular case, not only did we get quite a few more excuses than we normally get, but we had some very belligerent jurors who were very argumentative, loud and resentful that they had to be there,” Smith said. “When one of them became belligerent, it gave more confidence to the others.”

The trouble started when three men in their 50s — all self-employed — began to talk back to the lawyers during voir dire. The trial was expected to last 10 days. When Smith told them that he understood they could face a financial hardship, they retorted: “How can you understand? You don’t know anything. You’re a lawyer. You don’t understand our problems.” They told Smith they didn’t believe he should have brought the suit and that “they had other things to do and were too busy to be brought into this process.”

Others started to chirp in, listing excuses like post-traumatic stress disorder and bringing in letters from their doctors, he said. “Virtually nobody wanted to sit in the trial. Everybody was trying to get out using excuses.”

In the end, he and the county’s lawyer, Nohemi Gutierrez Ferguson, a partner at Gutierrez Preciado & House in Pasadena, Calif., waived the jury in favor of a bench trial.

In the UPS driver’s case, dismissing the jury panel has meant months of waiting for trial to begin. So far, Heiting said, no date has been scheduled for jury selection, but voir dire is likely to be held at the elementary school again. “Am I feeling a little trepidatious?” Heiting said. “Yes.”

WHAT TO DO AFTER A WORK RELATED INJURY?

March 23, 2011

The general and safe response is that all injuries should be handled the same way, however, that methodology may not be practical in the course of your work day. Any injury that causes you to believe that you need the care of a doctor should be reported immediately.

The person(s) that is considered your immediate supervisor is the person or persons you should first notify of your injury. In as clear and precise manner as possible, report to your supervisor exactly how the injury happened, noting the time and place where the event occurred. If the injury is serious enough for medical attention, request and insist that they send or take you to their emergency center for care.

Your employer must give you a DWC-1 claim form within one (1) day of knowing that you were injured. Filling out the claim form opens up your workers’ compensation claim. State law also lays out benefits beyond the basics that you may qualify for once you file the claim form with your employer. These benefits include, but are not limited to:

● A presumption that your injury/illness was caused by work if your claim is not accepted or denied within 90 days of giving the completed claim form to your employer;

● up to $10,000.00 under medical treatment guidelines while the claims administrator considers your claim;

● an increase in your TTD disability payments if they are late;

● a way to resolve any disagreements that might come up between you and your claims administrator over whether your injury or illness happened on the job, the medical treatment you receive and whether you will receive permanent disability benefits.

If your employer does not give you the DWC-1 claim form, ask your employer for the form or call the claims administrator to get it. The claims administrator is a person or entity handling your employer’s claims. The name, address and phone number of this person should be posted at your work place in the same area where other work place information, such as where the minimum wage is posted. You can also get the form from the Division of Workers’ Compensation (DWC) web site at http://www.dwc.ca.gov. In the left navigation pane, under I Want To, click on Find a Form.

Heiting & Irwin has extensive experience handling Workers’ Compensation matters.  Mr. Irwin is a recognized specialist in Workers’ Compensation law. He has been certified as a specialist by the State Bar of California since 1995.  If you or anyone you know has been in a work related injury, please do not hesitate to contact our office at (951) 682-6400 or visit our website: www.heitingandirwin.com.

California Supreme Court Finds Liability for Tractor-Trailer Parked Along Freeway

March 17, 2011

by Jean-Simon Serrano

On February 28, 2011, the California Supreme Court decided the case of Cabral v. Ralphs Grocery Co. (Docket No. S178799).  This is another case revolving around a deadly motor vehicle accident in which a tractor-trailer was involved.  See my previous article here

In Cabral, Plaintiff’s husband, the decedent, was driving his pickup truck home from work, when he suddenly veered off the freeway and collided, at high speed, with the rear of a stopped Ralph’s Tractor Trailer.  Mr. Cabral was killed instantly.  According to investigation, Mr. Cabral was not intoxicated at the time of the accident and experts opined that the accident occurred after he (a) fell asleep at the wheel; or (b) lost control due to an undiagnosed medical condition.  Just prior to the accident, the driver of the tractor trailer pulled over to the side of the freeway in order to have a snack.

The jury determined that the decedent was 90% at fault for the accident and apportioned 10% of the fault to the driver of the tractor trailer.  The trial court denied Ralphs’s motion for judgment notwithstanding the verdict and entered a judgment awarding Mrs. Cabral damages for the wrongful death of her husband.

Ralph’s appealed the Superior Court ruling and the Court of Appeal reversed the judgment on the jury verdict and denial of the employer’s motion for judgment notwithstanding the verdict.  Ralph’s successfully argued that it owed no duty to persons such as the decedent as it was not foreseeable that persons such as Mr. Cabral would veer off course and collide with a tractor trailer parked along a freeway. The plaintiff appealed this ruling and thus the matter was put before the California Supreme Court.

The California Supreme Court held that the employer (Ralph’s) owed a legal duty to avoid a collision between the decedent, who was found 90 percent at fault, and the employer’s stopped truck.  In so holding, the Supreme Court cited Civil Code, § 1714, subd. (a) which established a general duty of reasonable care for the safety of others.  The Court stated that there were no grounds in the current case to find an exception to this general duty of reasonable care.  The Court stated:

“That drivers may lose control of their vehicles and leave a freeway for the shoulder area, where they may collide with any obstacle placed there, is not categorically unforeseeable. Nor does public policy clearly demand that truck drivers be universally permitted, without the possibility of civil liability for a collision, to take nonemergency breaks alongside freeways in areas where regulations permit only emergency parking.  Were we to recognize the categorical exemption from the duty of ordinary care Ralphs seeks, no liability could be imposed even when a driver unjustifiably stops his or her vehicle alongside the freeway in particularly dangerous circumstances. For example, parking a tractor-trailer for the night immediately next to the freeway traffic lanes on the outside of a poorly lit downhill curve, merely in order to save the cost of a spot in a truck stop, could well be considered negligent. Yet the parking truck driver in that scenario would as a matter of law bear no responsibility for a collision if, as Ralphs contends, no duty exists to exercise reasonable care, in parking alongside a freeway, for the safety of motorists who may unintentionally leave the freeway.  We therefore decline to create a categorical rule exempting those parking alongside freeways from the duty of drivers to exercise ordinary care for others in their use of streets and highways.”

The court also held that substantial evidence supported a finding that if the tractor-trailer had not been stopped where it was, the other driver likely would have come to a stop without a fatal collision.

As a result, the court reversed the judgment of the court of appeal.

This is not too dissimilar from the Court of Appeal decision in Lawson v. Safeway Inc., (2010) 191 Cal. App. 4th 400, which essentially held that tractor-trailer drivers had a duty to not only park legally, but also, to park safely. 

We, at Heiting & Irwin, specialize in tractor-trailer accidents.  If you or anyone you know has been in an accident involving a tractor-trailer, please do not hesitate to contact our office at (951) 682-6400 or visit our website: www.heitingandirwin.com

New California Case Holds Tractor-Trailer Drivers to Higher Standard

March 1, 2011

By Jean-Simon Serrano

The California Court of Appeal for the First District (which includes San Francisco and neighboring areas), recently decided a case, [Lawson v. Safeway Inc., (2010) 191 Cal. App. 4th 400] holding drivers of tractor trailers to a higher standard than some other motorists.

In the Lawson case, the plaintiffs were the driver of a motorcycle and his passenger.  “A large Safeway Inc. tractor-trailer was parked legally on the side of U.S. Highway 101 (101) close to an intersection near Crescent City. The position of the tractor-trailer blocked the view of oncoming traffic for a driver attempting to cross and turn onto 101. The driver’s pickup truck collided with motorcyclist Charles Lawson whose wife Connie B. Lawson was riding with him as they traveled on 101. The Lawsons filed suit for personal injuries against Safeway, the driver of the Safeway truck, the driver of the pickup, and the State of California. A jury awarded substantial damages to plaintiffs and apportioned 35 percent fault to Safeway, 35 percent to the State of California, and 30 percent to the driver of the pickup.”  Lawson, at 404 [emphasis added].

The issue before the Court on Safeway’s appeal was whether the driver of the tractor-trailer owed a duty of care to those injured in the accident when he parked in an area that was not prohibited by the Vehicle Code or any other statute or ordinance.  Safeway argued that they should not have been found at fault because their driver, in parking alongside the 101 fwy, had done nothing illegal.

The Court of Appeal ultimately held that, although the tractor trailer was parked legally on the side of the highway, the driver had a duty to park safely, as well as legally, in this particular case.  The driver had parked a 65 foot long, 13.5 foot tall, 8.5 foot wide commercial truck and the evidence showed that: the drivers of such trucks were or should be professionally trained to be aware of the risk of blocking other drivers’ sight lines when parking.  The evidence further showed that the truck was parked at a high-speed well-traveled intersection and a safe parking spot was available right around the corner.  Because of these facts, the Court held it was readily foreseeable that parking a large, commercial truck near an intersection might obstruct the views of passing motorists and cause them to collide.

In affirming the lower Court’s ruling, the Court of Appeals held that the risk of harm that was sufficiently great that a jury should have been allowed to determine whether the truck driver, in parking where he did, bore some responsibility for the accident.

Thus, it appears that, according to this ruling, drivers of tractor-trailers, because of their unique training and experience, will be held to a standard that not only requires them to be parked legally, but also, that they park safely.

We, at Heiting & Irwin, specialize in tractor-trailer accidents.  If you or anyone you know has been in an accident involving a tractor-trailer, please do not hesitate to contact our office at (951) 682-6400 or visit our website: www.heitingandirwin.com