Archive for May, 2012


May 30, 2012

By Sara B. Morgan, Esq.

The sender of a text message was granted summary judgment against plaintiffs in a New Jersey personal injury action in which the recipient, while reading that text message, sideswiped the motorcycle driven by the plaintiffs. The plaintiffs, a husband and wife who both lost their left leg in the collision, named both the driver of the vehicle and the sender of the text message, alleging that the sender was “virtually present” because she knew that the recipient was driving at the time she distracted him by sending the message she knew he would read, thus giving rise to a duty owed by the sender to the plaintiffs.

The decision to grant the sender’s motion for summary judgment is seemingly grounded on the judge’s reluctance to impose a duty upon the sender. Judge David Rand found it unreasonable to impose a duty upon the sender in these circumstances, who during deposition admitted she may have known the driver was behind the wheel at the time the two exchanged several text messages. Instead, Judge Rand found that, while drivers may potentially be distracted by any number of electronic gadgets, the people of New Jersey can “expect more of [its] drivers….who are given the license and privilege to operate vehicles on our highways.”

Although this case is touted as the first of its kind, the New Jersey ruling reflects well-established principles of California law that people have the right to rely on the good conduct of others. Indeed, California Judicial Council Civil Jury Instruction 411 reads:

“Every person has a right to expect that every other person will use reasonable case and will not violate the law, unless he or she knows, or should know, that the other person will not use reasonable care or will violate the law.”  CACI 411.

Indeed, defendants are entitled to rely on the reasonable conduct of third parties who owe a duty of care to the plaintiff. Tucker v. Lombardo (1956) 47 Cal. 2d 457, 467.

This principle, however, is not without limitation, and as one would guess, the distinction is drawn based upon “reasonableness”. For instance, one who is not exercising ordinary care, or one who knows or should know that the law is not being observed, cannot rely on the “good conduct of others”. Malone v. Perryman (1964) 226 Cal. App. 2d 227, 243. “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for the harm caused thereby.” Rest. 2d Torts, §449; Bigbee v. Pacific Telephone and Telegraph Co. (1983) 34 Cal. 3d 49, 58.

In cases of catastrophic and personal injuries, issues of liability and causation are important to examine with a well-qualified, experienced attorney. The law firm of Heiting & Irwin has over 100 years combined experience representing the interests of people who have been harmed by the actions of others. We offer free consultations, a warm and inviting office, and a friendly staff to anyone interested in speaking about a potential legal matter. If you would like to speak with someone about your circumstances, please call our office at (951) 682-6400 for a free consultation.

The Duty to Disclose STDs — The One that Never Goes Away

May 22, 2012

In a recent local case [Behr v. Redmond, (2011) 193 Cal. App. 4th 517], the plaintiff sued the defendant for damages arising from the alleged tortious transmission of genital herpes.  Essentially, the plaintiff alleged that the defendant committed fraud when he misrepresented to her that he was free of STDs, knowing this to be false.  Relying on his representation, the plaintiff ultimately contracted genital herpes from her encounter with the defendant.

 After trial, the Riverside County Jury awarded her compensatory damages in the amount of $4,003,600, including $2.5 million for future medical expenses for the treatment of her genital herpes. In a separate trial deciding the issue of punitive damages, the jury awarded the Ms. Behr $2.75 million.

 The decision was based, in part, on long-established California law. “People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs.” Doe v. Roe (1990) 218 Cal.App.3d 1538, 1545.

 On appeal, the Appellate Court concluded that there was sufficient evidence to support the jury’s findings that Mr. Redmond was negligent and had also fraudulently concealed the risk of contracting herpes. The jury could reasonably conclude that plaintiff justifiably relied on defendant’s assurance that it was okay to have sex with him.

 The Court of Appeal did, however, make modifications to the award of future medical expenses.  The Court found that plaintiff’s claim that she was now uninsurable to lack factual support and thus struck damages based on this contention.  The Court thus found that plaintiff’s future medical expenses were the cost of her herpes medication over her expected life span.

 The award of punitive damages was not so disproportionate as to render it suspect or to otherwise require reversal. Plaintiff was not entitled to recover expert witness fees because she failed to support her memorandum of costs with a written offer to compromise.

The judgment was affirmed in part and reversed in part. The judgment was reversed as to the cause of action for fraud by misrepresentation. The award of future medical expenses was reduced to from $2.5 million to $72,000, and the total compensatory damages award was reduced to $1,575,600.


May 17, 2012

by Sara B. Morgan, Esq.

Reform. A positive-sounding word connoting improvement and enhancement, Webster’s defines “reform” as “an amendment of what is defective, vicious, corrupt, or depraved; a removal or correction.” However, you can have too much of a good thing, and unfortunately, tort reform supporters don’t often realize the negative effect their efforts may have upon the lives of individuals who suffer from devastating, catastrophic injuries, until it is too late.

Take for example, the recent Delaware River incident where passengers of a small, touring duck boat were drown when a large barge literally ran over them. The actions and inactions of the duck boat crew, including stopping the boat mid-river for almost 12 minutes, failing to timely instruct the passengers to don life vests, and cell phone usage immediately preceding the crash, all constitute negligence which caused or contributed to the deaths and injuries of its passengers.

Enter the Limitation of Liability Act, codified at 46 U.S.C. 30503, enacted in 1851 to encourage competition between American shipping companies and foreign shipping companies. Many countries abroad, including in Europe, had similar laws in place which limit the liability of a ship owner for injuries to persons and property to the value of the ship and its cargo after it arrives back to port – as long as the owner of the vessel was not at fault for the accident.

But what is the value of a duck boat that’s been run over by a barge and dragged from the bottom of river? While no money could ever make the duck boat’s passengers and their families whole, it can certainly assist them in coping with those losses and otherwise treating those injuries. To limit any recovery in this matter to the value of the soggy, used-up duck boat is unconsciounable.

Similarly, California enacted the Medical Injury Compensation Reform Act, known as MICRA, in 1975 to combat concerns over the availability and rising price of medical malpractice insurance. This Act established a limitation, or cap, of $250,000 on the amount a person could recover for any pain, suffering, distress, anguish, and loss of quality of life in a medical malpractice case.

The theory was that MICRA would decrease the number of medical malpractice claims, as well as the costs of resolving those claims. It was further speculated that these savings would “trickle down” to consumers, resulting in lower or stabilized insurance coverage premiums and increased availability of medical services.

MICRA caps operate on half of all plaintiffs verdicts in California to reduce the award a jury determines necessary to compensate those plaintiffs for their losses. The end result was a reduction in costs – negligent health care professionals benefitted from a 30% reduction in liability. What is lacking is any evidence showing that patients benefitted from a similar reduction in medical malpractice. Even more disturbing, research has proven that the jury awards most likely to be capped under MICRA are those cases which resulted in death, in severe non-fatal injuries, and injuries to children younger than 1 year.

Clearly, there are inequities here, and unfortunately, reform itself can result in the type of defective, vicious, corrupt, or depraved practices which it was intended to eradicate.


May 10, 2012


Heiting & Irwin

By: Dennis R. Stout


My office was recently contacted by a young woman on a clear liability, rear-end automobile accident. She was driving “her” vehicle (one of many insured by the family) and she assumed she was an insured driver. Wanting to immediately obtain a replacement vehicle (rental car) she contacted “her” insurance company, only to told she had no coverage. After a little research, it was determined she was an EXCLUDED DRIVER on all vehicles insured by the family.

Mistake or not, this driver is now defined by Civil Code Section 3333.4 (Prop.213) as an uninsured driver with limited rights to recovery of damages. Lacking coverage from “her” insurance coverage, she can immediately recover nothing. She must now wait to recover damages from the adverse driver/insurance company, and being uninsured and unable to establish her financial responsibility as required by the financial responsibility laws of this state (California), she can only recover her economic damages (medical expenses, lost earnings, property damage, loss of use of vehicle) but cannot recover non-economic damages for pain, suffering, inconvenience, physical impairment, disfigurement, and other non-pecuniary damages. There are a couple of exceptions to this, but generally this individual is limited in her recovery and must wait for the other insurance company to evaluate the case.

The moral to this story is make sure you and appropriate family members are insured drivers on your automobile policy and are not EXCLUDED DRIVERS for whatever purpose. Insured drivers can recover all damages sustained in a motor vehicle accidents, not just a few.

The attorneys at Heiting and Irwin are experienced in evaluating your insurance policy(s) and coverages pursuant to those policies. If you have any injury related claim, including insurance claims, contact us at your convenience for a free evaluation.

Lottery Ticket Treasure Hunt: To Dumpster-Dive or Not to Dumpster-Dive

May 2, 2012

by Sara B. Morgan, Esq.

On Tuesday, an Arkansas judge ruled that Sharon Jones must turn over the proceeds from the winning lottery ticket she fished out of a trash can, to the purported original purchaser. According to reports, the winning ticket was originally purchased by Sharon Duncan, who discarded it into the trash can of the Super 1 Stop store after the ticket scanner indicated it was not a winner. Sometime thereafter, Sharon Jones, who routinely recovers and checks discarded lottery tickets, recovered this ticket from the store’s trash can and presented it for redemption of the winnings. After investigation by the Arkansas Lottery Security Cheif, Jones was awarded the prize money.

Interestingly, it was the store manager of the Super 1 Stop that instituted the legal proceedings against Jones, although these claims were found to be baseless. Duncan did not joint the suit until January, after the judge indicated she may be the true owner. The judge ultimately found that Jones failed to meet her burden of proof that Duncan, the original purchaser, abandoned her right to claim the $1 million.

On these facts, however, there is plenty of room for disagreement. Duncan could have undertaken any one of a number of things to pursue her right to claim the prize money, including personally verifying the winning numbers from the newspaper, re-scanning the ticket with the same or different scanner, or presenting her tickets to the state lottery for any secondary prize. Instead, she scanned the ticket once and tossed it in the trash, presumably intending for it to be collected with the other garbage. These facts go beyond the private trash can-private property inquiry of California v. Greenwood, 486 U.S. 35, as this was a public trash can in a public place mixed with public garbage. That Duncan could have no expectation of privacy in discarding her ticket into this public trash only further substantiates the argument that she had abandoned this property.

California lottery tickets include terms and conditions in the fine print which are informative for this situation. For one, the ticket is required to redeem the prize. It follows that, where a ticket is discarded, so is the ticket-holder’s right to redeem the prize. Second, determination of the winners is subject to the rules and regulations of the California Lottery. Thus, the state lottery has the final say in the determination of the winners, and the investigation and verification process undertaken by the Arkansas State Lottery should have been sufficient to establish that Susan Jones was entitled to the winnings.

The fine print further instructs purchasers to write their name, address, phone number, and signature on the back of the ticket, in order to indicate ownership thereof. It would follow that this present ruling, even with an appeal pending, will call mass attention to these types of technicalities, and make it extremely difficult for any future dumpster-divers to (potentially) win big.