Releases of Liability for Injuries in California

Many gymnasiums and other facilities where there is a risk that  customer will suffer an injury, have those customers sign a release of liability which is supposed to release the business from any and all liability for injuries and damages sustained by the customer/visitors while on premises. However, not all releases are valid and enforceable as the power of the release to preclude and injury claim depends on the scope of the release and its applicability to the particular incident.

Generally, in order for a release of liabilty to be held enforceable and prevent an injured from having a legal action for personal injuries (1) the release must be clear, unambiguous and explicit in expressing the intent of the parties; (2) the act of negligence that results in injury must be reasonable related to the object or prupose for which the release is given; and (3) the release must not contravene public policy.

The second element is the one that is subject of contention and litigation. To illustrate, in one case the court considered a situation where a vistor of a car race signed a release that purported to release the facility from any injuries sustained by the viewers as a result of the automobile racing. One visitor was injured when one monitor located in the area fell on his head after he tried to adjust it. The court concluded that because the release was not intended to release the premises form this kind of injuries and was only limited to injuries related to the automobile race and the dangers that the race cars directly pose to the viewer, the release did not apply to the claimant’s injuries, and he was allowed to proceed to recover damages.

However, in other case, a gym customer was not allowed to recoverfor injuries sustained when he slipped and fell in the shower, because, as the court pointed out, the release executed by the customer with that gym, provided that the customer releases the facility from liability for any and all injuries, whether related to exercising or not, while on premises.

Oakland Injury Lawyer: IME – Independent Medical Examinations

The insurance company of the driver at fault almost always conducts a medical examination of the driver claiming damages for his/her injuries, called independent medical examination (IME). This examination is the opportunity for the insurance company to conduct it’s own medical evaluation of your condition.

A defendant in a personal injury case has the right to one physical examination of plaintiff without leave of court simply by serving plaintiff with a proper written demand for such medical examination. Further, the physical exam is limited to those parts of plaintiff’s body or conditions that are “in controversy” in the action as provided by California Court of Civil Procedure section 2032.020(a). The examination may also not be unduly painful or intrusive and should generally be limited to common, procedures for assessing/evaluating the condition and the extent of the injuries of the plaintiff.

In many cases the examining doctor is not truly “independent.” When hired by the defense insurance company, the physician may in fact be partial to the defense position as they are the ones who paying for physician’s services and are likely to bring more business in the future if they are “satisfied” with the results of these examinations. The examined plaintiff’s remedy in such situations is to bring out such evidence of bias at trial in the form of impeachment. The plaintiff cannot, after trial and apparent dissatisfaction with the award of damages, sue the doctor for fraud or conspiracy on the ground of compiling a negative report. The proper remedy is bringing a motion for new trial or motion to increase award promptly.

A common mistake after being involved in an injury accident

I often receive calls from people who were just injured in an autoaccident, who are in pain, but who are also unwilling to go to the emergency room, as they are  concerned about the medical bills from the hospital, if the injured doesn’t have health insurance.

Not receiving an urgent care at a hospital if you are in serious pain within 24-48 hours after the accident or not going to see a doctor as soon as possible after the accident is a mistake for several reasons. First, even though you might think that you have not been seriously injured, there might be certain damage to the bone structure or soft tissue that would require urgent attention and that would help you recover faster.

Secondly,  that fact that you haven’t received treatment shortly after the accident is going to be one of the strongest arguments by the insurance company that you weren’t injured very seriously. After all, they will say, if you were injured as seriously as you say – why didn’t you seek treatment immediately?

Lastly, in most cases you shouldn’t be concerned about the medical bills. Assuming that you have the insurance information of the driver at fault, the injury lawyer representing you will contact the hospital and will request that your bill is placed on hold until your injury claim settles. If you didn’t manage to obtain an insurance information form the other driver, such as it happens in hit-and-run accidents, you will still be able to negotiate your medical bill with the hospital in most cases and/or agree on a very reasonable payment plan.

So, make sure that you get the medical care you need at the emergency room after being involved in an accident or some other kind of medical attention soon as possible, this will ensure better recovery and will protect your legal rights when you negotiate settlemet with the insurance company.

Sustaining an Injury at a Gym (24 Hour Fitness)

On December 19, 2008, the Second Appellate District of California filed a opinion thoroughly analyzing a gym’s (in this case 24 Hour Fitness, Corp.) liability for injuries sustained by its clients while using exercise equipment (Ontiveros v. 24 Hour Fitness Corporation). In this case, the plaintiff was injured while she was exercising on a stair step machine. After being injured while working on that machine, she sued 24 Hour Fitness for, among other things, strict products liability, alleging that the Defendant 24 Hour Fitness should be held liable for her injuries regardless of whether it was negligent in maintaining and operating the stair step machine in question.

The main question that the appellate court faced in that case was whether the membership agreement between the pliantiff and 24 Hour Fitness was primarily for using products (exercise equipment) or services. Under the products liability law, the gym could only be found strictly liable for products liability, it the dominant purpose of its relationship with a specific customer was to provide products. The injured plaintiff argued that because she only signed up with 24 Hour Fitness to use their free weights and stair machine, her agreement was predominanty for use of products rather than services. The court found, however, that a relationship such as this, where the customer has a range of services available to her (personal traning, swimming pool, dance classes, etc.) when signing up for a gym membership is predominanty for services, regardless of whether the customer was using those services.  Thus, the court concluded that the injured woman may not maintain a strict products liability action under the circumstances against 24 Hour Fitness.

Personal Injury Case Mediation

Mediation is one of the settlement negotiation “tools” that the parties to an injury action can use to reach a settlement prior to later hearings and trial. Like any other way of settling an injury claim, mediations have their ups and downs. I, personally, believe that the advantages of a mediation in front of a compelling mediator far outweight the possible drawbacks, especially if the case involves serious injuries, substantial wage loss and major pain and suffering.

Mediation is a meeting between the parties to the injury claim and the mediator in an informal setting, that usually takes place soon after the written discovery is complete and the deposition of the injured person is taken. It is an informal hearing that takes place at a mediator’s office. In the beginning of that meeting, the mediator, who is usually as seasoned attorney who practiced in the area of injury law or a retired judge, explains the rules of mediation and reminds the parties that whatever settlement they achieve at the mediation, if any, will remain confidential as required by law.

Then, the mediator will allow the parties to present their case (although not always) and then separate the parties (usually the Plaintiff and the attorne for the insurance company) into separate rooms (caucuses). Then the negotiation will begin. The insurance company’s attorney will routinely start the negotiations with an unreasonably low dollar figure, while the plaintiff’s attorney will recommend an unreasonable high figure.  The mediator will be going back and forth between the caucuses, bringing arguments to their attention why the should move closer to the other side in their position, hoping that a few hours later (or a full working day later), the parties will reach some kind of compromise.

The advantages of the mediation process are the lack of anxiety and stress associated with an informal negotiations process and the statistically high rate of settlements at a mediation of injury cases. After a relatively stressful deposition testimony, at which the injured person is forced to answer the opposing attorney’s questions, many of which are designed to defeat the injured parties claims, the claimant can feel relieved at the mediation in that whatever he or his attorney suggests is not a testimony and has no affect on the case should parties not reach a settlement. Further, getting an opinion of a seasoned attorney on a case may also prove to be very useful regardless of whether the case settles at a mediation.

The main disadvantages of a mediation are that they can be relatively expensive (each party may be required to pay $1,500 or more, depending on how many hours the mediation lasts), and that it is non-binding. In other words, it is possible for the parties to spend all day negotiating, but not reaching a settlement agreement.

One of the common mistakes that injured claimants make when going to the mediation is having a certain, solid expectation – a certain dollar amount they have in mind which they expect to receive for their injuries and damages and below which they are unwilling to negotiate, no matter what. This is not a good mindset for mediation (or any other negotiations for that matter), as being flexible and keeping an open mind are critical to successful mediation. You have to remember that no one really gets all they want at a mediation, as mediating a case is all about finding a compromise and having both parties give something up in order to find a short-cut to the stressful and expensive litigation process.

If you are about to have a mediation of your injury case, it is crucial that you realize and remember that mediation is about flexibility and about keeping an open mind. Too many claimants act impulsively on those expectations and walk out of the mediator’s office as soon as they hear the initial, very low settlement offer of the insurance company, instead of exercising the ever important patience at mediations, listening to the arguments of all the involved parties and acting accordingly.

San Francisco Injury Attorney: Accidents at four-stop-sign intersections

One of the very common situations leading to injury accidents in San Francisco, especially in the “avenues” is a situation where one of the drivers fail to stop at a four-way stop intersection, “t-boning” the other driver.  The major danger of t-bone accidents is that even the relatively minor impact might lead to serious injuries. It is not uncommon for a driver going through an intersection to have another car collide into him/her from a side and sustain serious injuries, such as broken ribs and shoulder injuries. After all, the doors are obviously thinner and don’t provide nearly as much protection to the driver (or passengers who can also be at risk) as the front or the back of the car, even in the most modern cars with sophisticated safety mechanisms.

The most reliable way to avoid those collisions, of course, is never assuming that the other driver, who is approaching an stop-sign at the intersection is going to stop, especially in San Francisco, where the stop signs are not always clear and visible, not to mention that fact the other driver might not be paying attention, be distracted or being intoxicated.

Thus, if you are at the intersection, don’t proceed through it until the other driver (approaching from your left or right) fully stops his vehicle, so that you can be assured that he is not just going to run through it.