Monday
Dec282015

Assumption of Risk Bars Injury Claim Based On Misrepresenting Package Weight

The Third Appellate District affirmed a judgment. The court held that a delivery person who injured himself lifting a heavy box could not maintain a personal injury suit against the shipper for understating the weight on the shipping label.

Stephen Moore was a UPS delivery driver. Moore made a delivery to William Jessup University. Moore then noticed some boxes in the UPS-pickup area of the university's mailroom. The boxes were all about the same size and shape and their shipping labels all stated that each weighed 48 pounds. However, when Moore lifted one of the boxes, he felt pain in his wrist, shoulder, and neck. Based on his 20 years of experience, Moore estimated that box weighed 70 to 80 pounds.

Moore sued the university, alleging negligence. The university moved for summary judgment, contending that it had no duty to protect Moore from injuries from lifting heavy boxes because it was an inherent risk of Moore's employment and the university did not increase that risk. The trial court granted the motion, finding that the university owed Moore no duty of care and that the doctrine of primary assumption of risk barred his action.

The court of appeal affirmed, holding that the university was not liable for Moore's injury.

The university did not increase the risk of injury to Moore by understating the weight of the box and failing to use highlighted tape to mark the box. Rather, Moore was harmed by the risks inherent in the activity of being a delivery-person. Accordingly, under the primary assumption of risk doctrine as articulated by the California Supreme Court, the university correctly argued that it had no duty to protect Moore from those inherent risks.

The court pointed out that the Supreme Court applied the so-called firefighter's rule, on which the university relied, to bar an action by a professional in-home caregiver injured by an Alzheimer’s patient because the caregiver was injured as a result of the very risk that she was hired to encounter. Here, the court concluded that the risk of injury from lifting heavy boxes that might be labeled with inaccurate weight information was inherent in Moore’s job.

Moore was trained by UPS on proper lifting techniques. There also was no evidence that UPS customers contractually or customarily provided weight information on their shipping labels so that UPS delivery drivers could ascertain how to safely handle a package. Instead, there was evidence that UPS customers mislabeled packages and that at least weekly, Moore encountered shipping labels with inaccurate weights.

Nor did Moore dispute that UPS did not require its customers to weigh their packages on a scale. Moore had 20 years of experience lifting and handling packages for UPS. How he would move the boxes he encountered at the university was in Moore's control, given that Moore had the option of calling for assistance from another UPS employee. Thus, Moore was in the best position to guard against lifting injuries.

Under the particular circumstances of this case, policy considerations based on the nature of Moore’s job duties and the relationship between the parties did not support a conclusion that the university had a duty to protect Moore against his injuries or that the university increased the risk of harm to Moore.

Moore v. William Jessup University

Wednesday
Dec232015

"Incident" means "Incident" in Form PI Interrogatories

The Second Appellate District granted a petition for writ of mandate. The court held that it was error to impose an evidence sanction based on a personal injury plaintiff’s failure to identify witnesses to her injuries, who did not witness her accident, in response to a form interrogatory seeking the names of witnesses to an "incident."

Karla Mitchell was injured in a car accident. She sued Ernestine Johnson for her injuries.

Johnson propounded Judicial Council form interrogatories. Interrogatory 12.1 asked Mitchell to identify each individual who witnessed the "incident," made any statement at the scene of the incident, heard any statement by any other individual about the incident that was made at the scene, or who claimed to have knowledge of the incident.

In response, Mitchell identified only one witness, one of her children who was a passenger in her auto at the time of the collision. Mitchell later identified several witnesses whom she intended to call at trial to testify to her physical limitations resulting from the collision. None of those witnesses had witnessed the collision.

Johnson moved in limine to exclude the testimony of any witnesses not previously disclosed in discovery as a sanction for Mitchell's failure to identify the non-percipient witnesses in response to interrogatory 12.1. The trial court granted the motion and the requested relief. Mitchell petitioned for writ of mandate.

The court of appeal granted the petition, holding that the trial court abused its discretion.

The court read interrogatory 12.1 as seeking the identities of percipient witnesses, witnesses who were at the scene immediately before or after the collision, those who were privy to statements by percipient witnesses, and those who might have personal knowledge of the collision.

Moreover, as provided in, among other authorities, Code Civ. Proc. §§2023.030, 2030.290(c), and 2030.300(e), exclusion of a party’s witness for that party’s failure to identify the witness in discovery is appropriate only if the omission was willful or a violation of a court order to compel a response.

Here, even if the interrogatory could be construed as a request for the identity of witnesses who would testify to Mitchell's post-collision limitations, there was no evidence that her failure to identify them was willful or in violation of an order to provide discovery.

Mitchell v. Superior Court

Tuesday
Dec222015

School District Ordered to Produce Records of Investigation

The Fourth Appellate District granted a petition for writ of mandate. The court held that the fact that a petitioner already possessed documents he was seeking under the California Public Records Act did not necessarily render his request moot.

John Caldecott worked in the human resources department of the Newport-Mesa Unified School District. He filed a complaint about his supervisor. The complaint alleged a hostile work environment, as well as multiple other improprieties, including improper approval and reporting of compensation for an administrator; recommendations of pay increases using improper criteria; incorrect reporting of income used to calculate retirement income; approval of improper salaries for new employees; and failure to audit the retirement agency’s reporting practices.

The district allegedly failed to act on that complaint. Shortly thereafter, Caldecott was terminated.

Caldecott made a request to the district under the California Public Records Act (CPRA), asking that it produce copies of its response to his complaint against his supervisor and an e-mail Caldecott sent to the district’s board regarding its response to his complaint. The district refused.

Caldecott filed a petition for writ of mandate and complaint for declaratory and injunctive relief, seeking to compel the district’s release of the documents.

The trial court denied the petition, finding that his request was moot because Caldicott already had all of the documents he was seeking. Additionally, the court reasoned found the documents were directly and inextricably linked to Caldecott’s claim of a hostile and abusive work environment, which was an internal personnel matter exempt from disclosure under CPRA.

Caldecott petitioned the court of appeal for relief.

The court of appeal granted Caldecott’s writ petition, holding that the public interest in disclosure of the documents outweighed any privacy interests.

The court first addressed the trial court’s finding that Caldecott’s possession of the documents at issue rendered his request moot. That was error. The issue was not Caldecott’s current possession of the documents. Caldecott sought the documents so that he would be able to promulgate them publicly without fear of liability for doing so.

The court rejected as disingenuous the district’s claim that Caldecott was free to release any of the documents is his possession and that the district had not tried to keep him from doing so. If it did not object to such release, it would not have denied Caldecott’s CPRA request and strenuously opposed both writ petitions. The heart of the district’s opposition was that the documents should not be released due to the alleged privacy of their contents. On this record, the court found, Caldecott’s possession of the documents was not a basis to withhold them.

Turning to the merits, the court found a strong public interest in judging how Caldectt’s supervisor district responded to his claims, especially in light of his almost immediate decision to terminate Caldecott without cause. Likewise, there was a strong public interest in assessing how the district’s elected board treated the serious misconduct allegations against its highest ranking administrator. The numerous newspaper articles and blogs included in the record confirmed that public interest. Disclosure would shed light on the district’s performance of its duties.

Having conducted an independent review, the court further disagreed with the trial court’s overly generalized characterization of the documents as pertaining solely to Caldecott’s claim of a hostile work environment. They also pertained to Caldecott’s allegations of improprieties as to employee compensation, income reporting for retirement purposes, and audit reporting to the retirement agency. Caldecott’s own supervisory role in the district’s personnel department, and his 10-year tenure in that department, lent weight and credibility to his claims. The court found no evidence to support the district’s claim Caldecott was nothing more than a disgruntled employee.

The court remanded to the trial court with directions to conduct an in camera review of the requested documents to determine if any were protected by attorney-client privilege. The documents were also to be redacted to delete the identities of and personal information about unrelated third parties. The trial court was then to enter a new order compelling the district to produce the nonprivileged or redacted documents.

Caldecott v. Superior Court (Newport Mesa Unified School District)

Wednesday
Nov252015

Primary Assumption of Risk Bars Frightened Haunted House Patron. As the Trial Court stated: "Who would want to go to a haunted house that is not scary?"

The Fourth Appellate District affirmed a judgment. The court held that the operator of a Halloween attraction that was promoted as being scary was not liable to a patron who was injured after being frightened by the attraction.

The Haunted Hotel, Inc. regularly operated Halloween attractions during the weeks leading up to Halloween. One of those was the Haunted Trail, an attraction operated in San Diego County’s Balboa Park. Visitors to the Haunted Trail followed a trail through a wooded section of the park, where they encounters costumed actors who sought to frighten them with loud noises, bright lights, sudden gestures, and a variety of gruesome or threatening props, including axes and other weapons. Because the natural setting of the attraction included uneven ground, the visitors were advised not to run, and the actors were instructed not to chase after any visitor who did run.

At the final scene along the trail, three people with prop chainsaws—gas powered chainsaws with the chains removed—menaced patrons as they walked to an opening in the temporary chain link fence, covered with a dark screen, that ran along the edge of the trail. That opening appeared to be the exit from the attraction. The exit was merely illusory, however. Upon passing through the opening in the fence, guests found themselves on an access road where they encountered the final event on their journey: being accosted by what appeared to be yet another crazed madman wielding a chainsaw. The pretense was deliberate; the event organizer knew that the effect of this final episode would be intensified if patrons believed their adventure had already ended. The access road where this event occurred was controlled by Haunted Hotel.

Scott Griffin visited the Haunted Trail in 2011 with friends. He enjoyed his experience along the wooded portion of the trial, but believed the adventure was over when he left the woods and exited onto the access road. When he was suddenly accosted by a man wielding a chainsaw, he believed he was facing a real threat to his life. He ran, fell, and sprained his wrist.

Griffin sued Haunted Hotel for negligence and assault. He argued, in essence, that the play acting on the access road fell outside the scope of his agreement with the event operator because he was led to believe that the adventure for which he had paid had already ended.

The trial court granted summary judgment in favor of Haunted Hotel, finding under the primary assumption of risk doctrine, that Griffin got the scary experience he bargained for, and the operator breached no duty to him.

The court of appeal affirmed, holding that risk that a patron will be frightened, run, and fall is inherent in the fundamental nature of a haunted house attraction like the Haunted Trail.

The court agreed with the trial court that the point of the Haunted Trail was to scare people, and the risk that someone would be scared and react by running away could not be eliminated without changing the basic character of the activity. As the trial court aptly noted, "Who would want to go to a haunted house that is not scary?"

There was no evidence creating a triable issue that Haunted Hotel unreasonably increased the risk of injury beyond the risks inherent in an attraction of this type. That Griffin believed he had left the event and, for that reason, experienced a type of fear different from the “fun” fear he experienced on the wooded trail did not make the operator liable for his injuries. Griffin’s subjective state of mind was simply irrelevant.

Because the primary assumption of risk doctrine focuses on the question of duty, its applicability is not dependent on either the plaintiff's implied consent to, or subjective appreciation of, the potential risk. Thus, even if Griffin was injured from his reaction to "scary fear" rather than "fun" fear, his subjective mental state was irrelevant. The risk inherent in the Haunted Trail's ending—that a patron would be lulled into a false sense of safety by a fake exit, and then be confronted with an extreme scare event—was exactly the risk Griffin experienced.

The court rejected as without merit Griffin’s argument that primary assumption of risk did not apply because "the location of the final scare took place outside the boundary of the Haunted Trail." The record was undisputed that the final event took place on an access road that was controlled by Haunted Hotel and intended by Haunted Hotel to be part of the Haunted Trail experience. Griffin’s argument that Haunted Hotel went outside the physical boundaries of its attraction was unsupported by the evidence.

The court rejected Griffin’s remaining contentions of error as similarly without merit.

Griffin v. The Haunted Hotel

Wednesday
Nov252015

Public Records Act Holding

Towing and impound records that discloses vehicle owner's address were exempt from disclosure under California Public Records Act .

County of Los Angeles v. Superior Court (Anderson-Barker)

2nd DCA