• Product Liability,  Torts

    Sophisticated User Doctrine Applies in California

    There were a few posts I linked to in Blawg Review #155 that are worth highlighting in separate posts, just in case people bypassed Blawg Review #155. One of them is Drug and Device Law’s post on the California Supreme Court decision adopting the sophisticated user doctrine in product liability cases, Johnson v. American Standard, case no S139184 (Apr. 3, 2008). I especially like the way the post tackles this important distinction: We’ve often explained that the “learned intermediary doctrine” is just that — a doctrine, and not an affirmative defense. Plaintiffs bear the burden of proving causation as part of their case-in-chief. Plaintiffs must therefore prove that a different…

  • Immunity,  Torts

    Firestarter Burned by Government Immunity

    I’ve been stewing over this post for a couple of days. Sovereign immunity always left a sour taste in my mouth. Yes, I understand all the justifications for it. But it still seems like a raw deal a lot of the time. In California, government immunity (against state law claims) is the rule, and the liability of a public entity is limited to specific statutory exceptions. So . . . you can’t generally sue the government unless one of those exceptions applies (and even then, not until jumping through the necessary administrative hoops). I get that. But what if the government sues you? Surely, those immunity statutes don’t prevent you…

  • California Procedure,  California Supreme Court,  Evidence,  Expert Witnesses,  Torts

    Supreme Court Gets Rid of Conflicts by Dismissing Case

    Laura Ernde, a staff writer at the Daily Journal, alerted me to her piece in yesterday’s edition of that paper about last week’s dismissal of the Lockheed Litigation Cases, case no. S132167. According to her article, this was one of the oldest matters on the court’s docket and the dismissal comes more than two years after briefing was complete. The dismissal apparently arises out of conflicts of interest. According to the article, four of the seven justices had recused themselves from these five consolidated toxic tort cases because they owned stock in at least one of the oil company defendants. The Supreme Court’s actual order is not posted as a…

  • Immunity,  Torts

    Should the Government be Liable for Criminal Acts of its Employees?

    The Government Liability Update blog has a good post on DeVillers v. County of San Diego, case no. D048974 (4th Dist. Oct. 19, 2007), which it describes as “deal[ing] with a real-life crime that would make a decent plot for a ‘CSI’ episode.” A county medical examiner and former meth addict having an affair with a co-worker steals drugs from work at the County Medical Examiner’s office and poisons her husband with them. Is the County liable for the husband’s death? The jury said yes. The Court of Appeal reverses.

  • Civil Rights,  Torts

    When Good Law Goes Bad

    Not generically bad, but bad for you. The plaintiff in Acosta v. Hill, case no. 05-56575 (9th Cir. Oct. 17, 2007), claimed in her Section 1983 case that the force used by city security guards and police while ejecting from a San Diego stadium violated her civil rights.  Indeed, she claimed she had been subjected to deadly force, and that the trial court erred by giving an instruction on excessive force under a reasonableness standard without giving a separate instruction on deadly force. She had a shot.  Ninth Circuit precedent at the time of her appeal drew a distinction between instructions for excessive force and instructions for deadly force. Her…

  • Ethics,  Torts

    Client Malpractice

    Another good post from Decision of the Day, giving the skinny on a case in which the D. C. court of appeals rejects a law firm’s attempt to sue a client for fouling up a case and costing the firm its anticipated contingency fee. Gotta give the firm points for creativity. Technorati Tags: legal malpractice

  • California Procedure,  Torts

    Legal Malpractice Tolling Decided by Supremes

    It’s always nice to see a split of authority resolved.  Code of Civil Procedure section 340.6 provides that the limitations period for legal malpractice against “an attorney” is tolled while “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.”  Before yesterday’s Supreme Court decision (just its second this month) in Beal Bank, SSB v. Arter & Hadden, LLP, case no. S141131(Sept. 27, 2007), the court of appeal had split on the question of whether the statute of limitations for legal malpractice is tolled against the former firm of an attorney who continues to represent the client after leaving…

  • Discovery,  Privilege,  Torts

    C.C.P. Section 1985.3 is Toothless

    Just one decision out of the Court of Appeal yesterday, but it’s a doozy.  In Foothill Federal Credit Union v. Superior Court, case no. B198664 (2d Dist. Sept. 24, 2007), the court holds that consumers’ claims against a credit union for disclosing consumer records in response to a subpoena are barred by the litigation privilege of Civil Code section 47.  At least, that’s the way the court describes its holding, but there is more at work in the decision. The impact of this decision is hard to understate in light of Code of Civil Procedure section 1985.3, which requires a party seeking certain forms of consumer records in discovery to…

  • Torts

    Primary Assumption of Risk Doctrine Applies to Golf

    If I didn’t already play golf, Shin v. Ahn, case no. S146114 (August 30, 2007), might be enough to scare me out of doing so.  In the course of reaching the conclusion that the primary assumption of risk doctrine applies to golf and thus reckless conduct, not mere negligence, is necessary to impose liability, the California Supreme Court reviews several cases where plaintiff was hit by a golf ball, often at extremely close range and at least once smack in the face.  Yikes. The lesson to be drawn from Knight [v. Jewett (1992)] 3 Cal.4th 296, and its progeny, as well as the weight of authority in sister states, is…

  • Appellate Procedure,  Standard of Review,  Torts

    Elder Abuse Act Protective Orders Reviewed for Abuse of Discretion

    In Bookout v. Nielsen, case no. G037727 (4th Dist. August 31, 2007), the Court of Appeal was faced for the first time with the question of the proper standard of review on appeal from an Elder Abuse Act protective order.  (Welf. & Inst. Code, § 15657.03.) Citing to the statutory language that allows an Elder Abuse Act protective order to issue upon proof “to the satisfaction of the court,” and noting that the Domestic Violence Protection Act contains identical language for the standard for issuing the order, the Court of Appeal adopts the standard of review applicable to appeals of DVPA protective orders: abuse of discretion.  Of course, the factual…