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Plaintiff was a county maintenance employee. He alleged that he was viciously attacked by members of an event that had rented the venue where he worked and that he sustained serious and significant injuries as a result. His wife claimed loss of consortium. LBL’s client was the security company hired to provide protective services at the event.

Plaintiff claimed the guards had abandoned their posts, that the security was inadequate and not properly trained. Based thereon, it was claimed that the security company had thereby breached a duty to provide protective services from which Plaintiff would have benefitted. Plaintiff alleged theories of negligence, failure to properly supervise and train, and premises liability.

LBL Partners Kurt Bridgman and Guy Stilson prepared a motion for summary judgment and summary adjudication of each of the causes of action alleged against the security provider. Bridgman and Stilson argued that the security company had no duty to protect Plaintiff because there was no “special relationship” between Plaintiff and the security company and Plaintiff was not an intended third party beneficiary of the contract. Bridgman and Stilson also argued that even if the security company breached a duty to Plaintiff, Plaintiff’s theory of causation was speculative because there was no evidence showing the guards would have been aware of the assault, the presence of security guards would have been sufficient to deter the attackers, or that an attempted intervention by the security guards would have prevented the Plaintiff’s injuries.

The Superior Court agreed and granted summary judgment on the dual bases of lack of duty and lack of admissible evidence of causation. The court also granted summary adjudication of each of the causes of action asserted against LBL’s client.

This case involves a decedent who was walking in a generally westbound direction on Curtner Avenue near its intersection with State Route 87 in San Jose, CA, when he was struck by defendant driving his work truck. Plaintiffs allege causes of action against the driver and company for negligence, and a cause of action for dangerous condition of public property under Government Code section 835 against the City of San Jose. The City cross-complained against the other defendants in the case.

Plaintiffs allege this portion of Curtner Avenue near its intersection with State Route 87 was in a dangerous condition because it was negligently and carelessly constructed, designed, maintained, repaired, lit, controlled, and operated. They alleged that the subject area lacked safe warnings, signage, markings, striping, lighting, and delineation; had overhead lighting that had not been maintained; and included traffic control devices that had been inadequately and unsafely designed, placed, operated and maintained. The City moved for summary judgment on the bases that 1) Plaintiffs cannot prove the decedent was using this part of Curtner Avenue in a reasonably foreseeable manner with due care, 2) it is not liable for inadequately lighting its streets, and 3) it is immune from any liability based on its alleged failure to provide adequate signals or signs. Cross-defendants opposed the motion and Plaintiffs filed a non-opposition.

At the hearing, the City first argued that the Cross-Defendants had no standing to oppose the motion. This argument was not taken well by Court since Cross-Defendants pointed out their substantial interest in the outcome of the motion. The City had cross-complained against them early in the case, and if the City’s motion were granted it would leave the Cross-Defendants as the only remaining defendants.

Ultimately the Cross-Defendants succeeded in refuting the merits of the City’s motion on all bases. First, because the exercise of due care by the injured individual is not an element that must be proved to establish a claim for dangerous condition of public property. Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal. App. 4th 1, 7. Therefore, it is not a proper basis for a motion for summary judgment. Second, while the City asserted there were no unusual conditions making Curtner Avenue unsafe for pedestrians or that facilitated unsafe use, and was therefore not liable for inadequately lighting its streets, Cross-Defendants presented a compelling two fold arguments: 1) Numerous physical characteristic of the property at Curtner and Route 87 exposed its users to increased danger from third party negligence, including the immediate hazard or trap created by the design, construction, control, and operation of the location lulling pedestrians into a false sense of security. Castro v. City of Thousand Oaks, (2015) 239 Cal.App.4th 1451 and 2) While these conditions on their own are enough to create a dangerous condition of public property, a public entity may still be liable for a failure to provide lighting if a prior dangerous condition may require street lighting or other means to lessen the danger, such as in this case. Mixon v. Pac. Gas & Elec. Co., (2012) 207 Cal.App.4th 124, 133. Finally, Cross-Defendants defeated the City’s secondary immunity argument that it is not liable for failure to provide adequate signals and signs by arguing that, while Section 830.4 provides that a condition is not a dangerous condition merely because of the failure to provide regulatory traffic control signals, there is a volume of evidence regarding the various dangerous conditions at Curtner Avenue and Route 87. The court vigorously agreed with the attorneys for Cross- Defendants, Rachel Ostrander and Christine Reed, on all accounts and denied the City’s motion.

Meet associate attorney Rachel Ostrander

LBL Partner Stilson Prevails in Appeal after LBL Partners LoSavio and Louie Obtain Defense Verdict at Trial in Wrongful Death/Mesothelioma Case

Decedent Hubbard died from mesothelioma caused by exposure to asbestos from asbestos-cement pipe which he experienced when he worked for Fairley Constructors, a contractor specializing in building municipal water systems. Plaintiffs, Hubbard’s wife and children, sued LBL’s client, San Jose Water Company (SJWC). SJWC was defended at trial by LBL Partners Tom LoSavio and Vernice Louie. Tom and Vernice argued that the Privette Doctrine applied (protecting those who employ independent contractors from civil liability to the contractors’ employees who are injured on the job). For the Privette Doctrine to apply it was necessary that SJWC was not negligent. Plaintiffs claimed SJWC was negligent because it failed to warn Fairley about the dangers of working with asbestos-cement pipe.

Trial went forward before Judge Brad Seligman in Alameda Superior Court for 18 days. Tom and Vernice argued that SJWC was not negligent because it was reasonable for SJWC to expect that by November 1974 (when Fairley first started doing work for SJWC) Fairley was already aware of the dangers involved in working with asbestos-cement pipe. They elicited testimony from two Fairley employees who said they knew it was dangerous to breathe dust from asbestos-cement pipe. Tom and Vernice also got testimony from experts (including the plaintiffs’ expert!) that information about the hazards of asbestos had been available in public libraries and that OSHA (a statute requiring employers to provide a safe workplace) served to educate employers like Fairley about the dangers of asbestos dust. The jury agreed and rendered a defense verdict.

Plaintiffs appealed, arguing there was insufficient evidence to support the verdict and that the trial court had incorrectly instructed the jury by placing the burden of proof regarding what Fairley knew on plaintiffs rather than on SJWC. LBL Partner Guy Stilson handled the appeal for SJWC. Guy showed that despite contradictions in the witness’ testimony, the evidence was sufficient to support the verdict. Guy also showed that the burden of proving an exception to the Privette Doctrine was properly placed on plaintiffs and there had been no instructional error. The Court of Appeal agreed and issued a decision affirming the judgment in favor of SJWC and awarding costs to SJWC.

Meet LBL Partner Guy Stilson

Plaintiff was struck by a tow truck and transported by ambulance to Kaiser. When he was released, he returned once to refill his pain medication, and never returned.  Six weeks later, Plaintiff retained an attorney who sent him to a pain management doctor and to a chiropractor where he treated for approximately 8 months. The pain management doctor and chiropractor were not covered by Plaintiff’s insurance.

At the mediation, plaintiff argued the applicability of Pebley v. Santa Clara Organics, LLC, a case decided on May 8, 2018. The court had ruled that an insured plaintiff who chose to treat with doctors outside his insurance plan should be treated as an uninsured plaintiff for the purpose of determining economic damages. The Pebley court explicitly rejected the argument that Plaintiff’s failure to treat with an out of network provider was failure to mitigate his damages.

The LBL team distinguished Pebley on the ground that, in this case, the care from the chiropractor and pain management doctor was not medically reasonable and necessary because no doctor at Kaiser (or any other doctor) ever told Plaintiff that he required any follow up care. Plaintiff’s only referral came from his attorney. Pebley confirms the long-held principle that an uninsured Plaintiff cannot establish his recoverable damages by mere billed amounts for the treatment rendered.

In this case, Plaintiff’s reasonable cost of treatment could not be determined because Plaintiff only offered the billing statements as evidence of his economic damages. Plaintiff reduce his initial demand by more than a third, enabling Rachel Ostrander, Christine Reed, and the LBL team to negotiate a favorable settlement.

Meet LBL attorneys Rachel Ostrander and Christine Reed.

After a late night of movie-watching on July 4, our client had to drive his girlfriend home. Afterwards, he fell asleep at the wheel and crashed, literally walking away from a totaled car without a scratch.

An ambulance happened to be driving by and ended up hitting the totaled car, which had no lights and was in a traffic lane. Some trucks and cars were able to see and avoid the two crashed vehicles, but here comes plaintiff, who didn’t. He totaled his car and sued for his injuries.

Sonja Blomquist and the LBL team were able to settle the cases brought by plaintiff and the ambulance company for minimal policy limits.

Meet attorney Sonja Blomquist.

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