Archive for April, 2012

COURTS IN CHAOS

April 25, 2012

COURTS IN CHAOS

Heiting & Irwin

By: Dennis R. Stout

 

Over the past week the Los Angeles Superior Court system has announced the closure of four civil courtrooms in Pomona. The San Bernardino Superior Court system is apparently mulling over its options in the face of budget cuts, expected to be reached up to 18 percent.

Similar courtroom closures or furlough days, as have occurred in the past, are likely the next step. Riverside County Courts can’t be far behind.

What does this mean to civil litigants? Higher fees, more crowded courts, longer lines for services, and cases taking more time to complete. Is there a solution? Tax increases are one proposal, but that is never a viable solution to the average wage earner. The better solution is more competent litigation by attorneys through the use of effective Mediation and Arbitration. Cases that could last weeks in the court trial system can be litigated in days with Arbitration. Mediation, with retired judges or other competent attorneys or professionals, can and statistically do, resolve a substantial percentage of litigated cases, before trial.

The attorneys at Heiting & Irwin have arbitrated and mediated hundreds, if not thousands of cases over the years. Our goal is to investigate, discover, prepare, and litigate cases as efficiently as possible, always keeping the best interests of the client as our first priority. Even with courtroom closures looming, outside services remain available to attorneys to bring cases to a successful conclusion.

Regardless of the state of the courts, Heiting & Irwin attorneys remain available to consult on all types of legal matters. Contact us at your convenience.

Primary Assumption of the Risk in “Sports” Cases

April 18, 2012

By Jean-Simon Serrano

Since the landmark case, Knight v. Jewett (1992) 3 Cal 4th, 296, it has been held in California that the primary assumption of risk doctrine applies to those whom participate in sports.  The Knight case involved a group of friends playing touch football during half time of the 1987 Super Bowl.  While jumping up to intercept a pass, the defendant collided with the plaintiff, knocking her over and landing on her hand, injuring her finger.  Applying the primary assumption of the risk doctrine, the Court Supreme Court held that a participant in a sporting activity cannot hold a co-participant liable for injuries they cause.  This is because the person engaging in a sporting activity “assumes” the likelihood of risk at the hands of the co-participants.

The Knight Court also held that, even when a co-participant violates a rule of the game and may be subject to internal sanctions prescribed by the sport itself, no legal liability will attach.  The Court reasoned that to impose legal liability would, in effect, discourage vigorous participation in such sporting events. The Court tempered this finding by stating that a co-participant does have a limited duty of care to refrain from intentionally injuring another participant or from engaging in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.

While it appears clear that the intention of the Knight ruling was to avoid the chilling effect that the imposition of legal liability would have on participation in sporting events, case law over the years has stretched the definition of what constitutes a “sport” for the purposes of the primary assumption of the risk.

The Knight case involved participants in a touch football game.  Other cases which have applied the primary assumption of the risk doctrine have included sports such as skiing, river-rafting, competitive motorcycle riding, and sailing.  In Record v. Reason, (1999) 73 Cal. App. 4th 472, the Court, for the purposes of determining whether the doctrine of primary assumption of the risk applies, defined a “sport” as anything that “is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” Record v. Reason, (1999) 73 Cal. App. 4th 472, 482.

There have been some cases where the parties have fought to keep their activities from being classified as a “sport” and thus keep the primary assumption of the risk doctrine from applying.  Two notable cases are Shannon v. Rhodes (2001) 92 Cal App 4th 792 and Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64.

The Shannon case was one of the first to fight back against the trend of having any activity remotely related to sports falling under the primary assumption of the risk doctrine.  In that case, the plaintiff was a six year old boy whom was a passenger in a boat on Lake Kaweah.  Due to alleged operator error, the young boy fell overboard and was severely injured when he was either struck by the propeller or otherwise run over by the boat.  The owners of the boat had the matter disposed of via summary judgment arguing that the six year old boy was engaged in the sport of motor boating as a passenger on their boat.  On appeal, the Appellate Court for the Fifth District overturned the trial court’s ruling, holding that the primary assumption of the risk doctrine did not apply.  The Court held, “regardless of the ‘risks’ that may be inherent in riding a boat, the existence of risk does not automatically call for the application of the doctrine…” Shannon (supra) at 798.  The Court further found that the plaintiff’s activities were too benign to invoke the doctrine and that, in the circumstances presented, the boat was simply a pleasurable means of transportation and not being used for “sport” as defined in the Reason case.  Last, the Court stated that its finding was unlikely to have a chilling effect on recreational boating.

In Childs, the plaintiff, an eleven year old, was injured after she rode her scooter over an uneven section of sidewalk.  The defendant was granted summary judgment after asserting that riding a scooter constitutes a sport or recreational activity and that, under the primary assumption of the risk doctrine, they had no duty to protect the child against the inherent risks of that activity.  On appeal, the Appellate Court for the Second District reversed the ruling, holding that riding a scooter was covered by the primary assumption of the risk doctrine only when the activity involved an element of danger, required physical exertion and skill, and included a competitive challenge – none of these factors was presented to the trial court.  The Appellate Court reasoned, “Based on the undisputed facts, applying the assumption of the risk doctrine to simply riding a scooter on a residential sidewalk would not further the purpose of the doctrine to protect sports and sports-related activities from the chilling effect of the liability caused by inherent risks in the activity.”  The Appellate Court reasoned,

“Application of the doctrine of assumption of the risk is determined by the manner in which equipment is used, not the manner in which it can be used, and merely using recreational equipment for pleasure does not trigger the doctrine.  To conclude otherwise would mean that because a car can be used in a race, riding in a car is participation in a sport.  Similarly, it would mean that because a bicycle can be used in a race, riding a bicycle as a means of transportation is participation in a sport.”

Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64, 71-72.

Last, the Court stated, “Falling or a comparable mishap is possible in any physical activity but is not necessarily an inherent danger of the activity.” Childs v. County of Santa Barbara (2004) 115 Cal. App 4th 64, 73 [emphasis in original].

Unfortunately, despite the rulings in Shannon and Childs, since the Reason ruling, Courts have applied the primary assumption of the risk to many activities that many would not consider active engagement in a “sport.”  Recently, in Truong v. Nguyen (2007) 156 Cal App 4th, 865, the Appellate Court for the Sixth District held that the decedent, whom was merely a passenger on the back of a personal watercraft, and was not operating the vehicle in any way, and whom was not involved in a competition, was engaged in a “sport.”  The Court reasoned that, riding on the back of such a vehicle required one to hold on to either the operator of the vehicle or the grips located on the vehicle to avoid being thrown off the craft.  Holding on to the grips of the Waverunner was enough for the Court to find that the defendant owed no duty to the daughter of the plaintiffs, whom defendant killed, when he caused a collision between his Polaris and the Waverunner on which the plaintiffs’ daughter was riding.  With the Truong ruling, we seem to have come far afield of the original public policy reasoning for the ruling in Knight – the encouragement of vigorous participation in sports.  With Truong, the Sixth District also appears to have distanced itself from the commonsense findings in Shannon and Childs about whether the plaintiffs were actually engaged in a “sport” at the time of their injuries.

This is an interesting area of law and one about which active persons should be aware.  At present, there appears to be a split among jurisdictions as to the scope and application of the doctrine.  There is no doubt that this doctrine will continue to evolve over time and may eventually be ruled upon by the Supreme Court of California.

YOUR RIGHT TO COUNSEL in CIVIL PROCEEDINGS

April 12, 2012

YOUR RIGHT TO COUNSEL in CIVIL PROCEEDINGS

Heiting & Irwin

By: Dennis R. Stout

 

You have likely heard or read on multiple occasions, the expression “you have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you…” (known as the Miranda warning). These are some of the rights of an individual charged with a crime. Criminals, or persons charged with crimes, have rights. The question is: Do civil litigants have the same or similar rights?

As a party to a civil complaint, whether contract, personal injury, or domestic matters (just to name a few) the civil litigant has far fewer rights. There is no specific right to counsel and the court will rarely, if ever, appoint an attorney in a civil case. You can always speak to an attorney, but can you afford to retain that attorney to represent you? There is no public defender in civil cases. California has experimented with appointment of civil counsel for low-income litigants in cases affecting basic human needs (Sargent Shriver Civil Counsel Act) however, the average every-day civil litigant has no such right to an attorney.

The attorneys at Heiting & Irwin are experienced civil litigators. Part of our promise to clients is to keep them well informed at all stages of the litigation process and to treat each and every client with civility and professionalism. We handle a large variety of civil cases, including personal injury, professional negligence, workers rights, and general civil litigation. An attorney is always available for an initial consultation with the prospective client on any type of legal matter.

Attorneys at Heiting & Irwin are well-known and respected through out Riverside, San Bernardino and all of Southern California and welcome the opportunity to represent litigants on a variety of legal issues. We believe that civil litigants have rights!

HEITING & IRWIN WINS HONOR OF TOP DOG PACK

April 12, 2012

Congratulations to Heiting & Irwin for its participation in the Mary S. Roberts Pet Adoption Center’s 20th Annual Walk with the Animals. While the event rained out, the weather couldn’t put a damper on the law firm’s fundraising team, the “Heiting’s Hounds”. We pounded the pavement, and earned the honor of the 2012 Top Dog Pak for raising the most funds in the group category.

We are proud to have helped such a wonderful cause, and thank all the friends, family, and local businesses that donated. A special thanks to Bann Thai and George Whitford Farmers for their generosity.

Congratulations to the top individual fundraisers, and to the Pet Adoption Center for a successful event. We hope to see you and your pets at the Walk’s new date, rescheduled for May 19, 2012 at Fairmount Park.