LUTTRELL V. ISLAND PACIFIC SUPERMARKETS, INC.

 In an important decision for the defense, on April 8, 2013, the First Appellate District of the Court of Appeal held that reductions to a plaintiff’s past medical expenses made pursuant to Howell v. Hamilton Meats & Provisions, Inc. (2011) 52 Cal.4^th 541, must be made before amounts are further reduced by a party’s failure to mitigate damages or by offsets for no-fault insurance payments. The Court further clarified that the Howell reductions are to be applied whether the providers were paid by a private insurer or Medicare.

    The Luttrell case arose from an injury to an elderly gentleman which occurred when plaintiff was repeatedly struck by automatic closing doors as he tried to exit a grocery store. He later suffered from a skin ulcer during his recovery period. The evidence indicated that plaintiff’s injuries from the incident were exacerbated by his failure to follow the directions of his health care provider.

    At trial, the jury found that plaintiff had 5% contributory negligence for his injuries from the door, and concluded that plaintiff was only entitled to 15 percent recovery for his ulcer because he had a pre-existing condition. Plaintiff was also awarded damages for future medical expenses and pain and suffering.

    Post-trial the court reduced the awarded past medical expenses to the amounts actually accepted by the medical providers from Medicare pursuant to Howell, and reduced plaintiff’s medical expenses for his ulcer by 50% due to plaintiff’s failure to mitigate damages. The 50% reduction was applied to the amounts paid by Medicare, not the amounts billed by the provider.

    Plaintiff disputed the order in which the reductions were made, and argued that the 50% mitigation should be applied to the amounts billed, not the amounts paid. Plaintiff further argued that Medicare or Medi-Cal payments should not be treated the same as payments from private insurers under Howell. The court disagreed.

    First, the court found that there was no basis for treating payments by Medicare or Medi-Cal differently than payments from private insurers under Howell since, in both cases, the medical providers agree to accept a sum less than their usual and customary charges.

    Second, the court determined that the Howell cap had to be applied before any reductions for failure to mitigate damages since the amount actually paid on plaintiff’s behalf represented the maximum amount that plaintiff could recover from defendant for past medical expenses. If the mitigation reduction was applied to the higher billed amounts, plaintiff’s failure to mitigate would have no consequences.

    Finally, the court rejected plaintiff’s argument that the amount of the Medicare lien should be added to the judgment since the amount awarded was sufficient to pay the Medicare lien (except to the extent that plaintiff failed to mitigate).

    In short, the court found that any reductions or offsets to plaintiff’s award for past medical expenses were to be applied after application of the Howell cap. Otherwise, plaintiff would be receiving a windfall and the offsets and reductions would be meaningless.

BUDGETARY CUTS DECIMATE THE LOS ANGELES SUPERIOR COURT. ARE YOU READY FOR THE CHANGES?

The most recent state-wide budget cuts have forced drastic cuts to personal injury cases in the Los Angeles County Superior Court, as well as other counties within California. Imminent changes will have meaningful and profound effects upon the way cases are handled in the California judicial system. Recent changes in the Los Angeles Superior Court illustrate these draconian changes:

    The “Fast Track” system in Los Angeles County Superior Court has ended. After being ordered to cut its budget by $55 million to $86 million within the next six months, the Superior Court system will be closing ten courthouses this month, and it is assigning all personal injury cases to three Courtrooms consisting of five Judges. Each courtroom will be required to manage as many as 8,000 cases.

    In Los Angeles County, ten courthouses are closing with their bench officers redeployed elsewhere in the Superior Court system. These include the Huntington Park, Whittier, Pomona North, Malibu, West Los Angeles, Beverly Hills, and San Pedro courthouses.

    All personal injury and limited jurisdiction actions will now be filed in the Downtown Los Angeles Courthouse. Personal injury actions at the Downtown Courthouse will be handled by the master calendar judges. Personal injury cases currently filed in outlying districts are being transferred to the Central Courthouse. 

    In order to handle the enormous caseload increase, the Court will stop monitoring the service of Summons and Complaints upon defendants. The Court is also eliminating Case Management Conferences. When a plaintiff files a Complaint, the Court will issue a trial and Final Status Conference dates. Trials will likely be set approximately 18 months after filing of the Complaint. The plaintiff will have six months to serve the defendants.

    The Court will no longer require parties in personal injury cases to report back on the results of any settlement conferences or mediation. None will be ordered. Indeed, all Alternative Dispute Resolution programs at each of the County of Los Angeles’ courthouses will be shut down.  If the parties choose to attend mediation, all mediation will be conducted privately. The Court is keeping a Mandatory Settlement Conference program, but the Mandatory Settlement Conference will most likely be conducted close to the trial date, and the Judges will have limited time for each case.

    At the time of trial, the Master Calendar Judges will assign personal injury cases to one of  thirty-one dedicated trial courts throughout the County.  Eleven of the trial courts are in downtown Los Angeles, while the rest are spread throughout the other Courthouses.  For example, a case whose incident occurred in an area governed by the Pomona Courthouse, could be tried at the Central Courthouse, Van Nuys Courthouse, etc… Indeed, parties heading to trial will not be informed where in the County their trial will be heard until the day that trial is to begin.

    The last minute assignment of trial will have two consequences. First, the parties will not know which courthouse they will be trying their cases. In light of the fact that about one third of the trial courts are now in downtown Los Angeles, the trial has a 30% chance of being tried downtown, where jurors are generally more favorable to plaintiffs. Second, since the parties do not know which Judge will be assigned to try the matter, the parties will need to be ready to file a Code of Civil Procedure §170.6 preemptory challenge to the assigned Judge.  

    Also, judges will likely make every effort to see that the right to a jury has been waived by a party. Under a new law, advance jury fees “shall be made on or before the date scheduled for the initial case management conference in the action.” (Code of Civil Procedure  §631(c)). These advance jury fees are nonrefundable. Expect that the court will continue to require early posting of fees even while it eliminates Case Management Conferences. Expect too that judges will deny requests to post such fees late.  

CALIFORNIA COURT OF APPEAL CONTINUES TO EXTEND THE REACH OF THE ASSUMPTION OF RISK DOCTRINE

On January 28, 2013, the Court of Appeal continued to expand the scope of the “assumption of risk” doctrine in California by ruling that in-home caretakers of patients with Alzheimer’s disease cannot sue their patients or their spouses for patient-inflicted injuries. In making this decision, the Court of Appeal determined that the assumption of risk doctrine can be applied to “non-sports and recreational activities.”

    In Gregory v. Cott (2013) 2013 WL 313960, a husband contracted with a home care agency for in-home services for his 85-year-old wife, who had suffered from Alzheimer’s disease for several years and had become increasingly combative over time. The agency assigned plaintiff to work with the couple in 2005. In 2008, while plaintiff was washing dishes, the wife pushed plaintiff while simultaneously reaching for a knife in plaintiff’s hand. This action resulted in significant injuries to plaintiff’s wrist. Plaintiff sued both the husband and wife for negligence and premises liability, and also sued the wife for battery. The husband and wife were awarded summary judgment, and plaintiff appealed.

    As mentioned in our January 30, 2013 Legal Update, the California Supreme Court ruled last December in the case of Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4^th 1148, 1154, that the assumption of risk doctrine was “not limited to activities classified as sports, but applies as well to other recreational activities ‘involving an inherent risk of injury to voluntary participants … where the risk cannot be eliminated without altering the fundamental nature of the activity.”

    In this case, however, the Court of Appeal took the doctrine one step farther. While the Supreme Court in Nalwa stated that the assumption of risk doctrine does not apply to “any activity with an inherent risk” such as “travel on the streets and highways and in many workplaces,” the Court of Appeal decided here that the Nalwa decision does not rule out the application of the doctrine to “non-sports and recreational activities” – including the care of Alzheimer’s patients who might injure their caregivers.  This is similar to the so-called “veterinarian’s rule, ” which traditionally bars recovery by a veterinarian for injuries caused by the animal he or she is treating.
 
    The Court found that the inherent risk of hazardous conduct by such a patient “render[s] the possibility of injury obvious and negate[s] the duty of care usually owed by the defendant for those particular risks of harm.” Because the danger of violence to a caregiver is “rooted in the very occasion of [her] engagement,” a defendant is impliedly relieved of any duty of care by the plaintiff’s acceptance of employment involving a known risk or danger. Caretakers “must endure the patient’s misfortune” and not seek compensation for injuries from patients.

    With this decision, it is clear that the courts are continuing a slow but steady expansion of the assumption of risk doctrine. As a result, our clients may now have potentially stronger defenses available to them in negligence and premises liability cases based on injuries to plaintiffs involved in business-related, or other “non-recreational” activities. If you have any questions regarding this case, or any other legal matters, feel free to contact Bradley & Gmelich.

New Partners                     Shirley R. Sullinger, Esq.      Jaimee K. Wellerstein, Esq. Bradley & Gmelich proudly announces that Shirley R. Sullinger, Esq. and Jaimee K. Wellerstein, Esq. have been named Partners of the Firm

GETTING BUMPED AROUND: CALIFORNIA SUPREME COURT BROADENS ASSUMPTION OF THE RISK DOCTRINE

 In a recent good common sense ruling, on December 31, 2012, the California Supreme Court explained that the primary assumption of the risk doctrine is not limited to only sporting activities, but applies to a wide variety of "recreational activities." In so ruling, many of our clients can now benefit from the liability protections afforded from the doctrine to obtain dismissal from lawsuits arising from a plaintiff's voluntary participation in various activities on their properties.

    In Nalwa v. Ceder Fair, LP (2012) 2012 WL 6734705, plaintiff fractured her wrist while riding a bumper car at an amusement park. She sued the park operator alleging negligence, amongst other theories, and argued that defendant should have employed additional safety measures. Defendant filed a Motion for Summary Judgment based on the primary assumption of the risk doctrine that was granted by the trial court and later reversed by the Court of Appeal. However, the California Supreme Court reversed the Court of Appeal and confirmed the grant of summary judgment dismissing defendant from the case.

    The Court explained the policy underlying the primary assumption of the risk doctrine: "Allowing voluntary participants in an active recreational pursuit to sue other participants or sponsors for failing to eliminate or mitigate the activity's inherent risks would threaten the activity's very existence and nature." The Court explained that "active recreation," because it involves physical activity and is not essential to daily life, is particularly vulnerable to the chilling effects of potential tort liability for ordinary negligence. For that reason, a variety of recreational activities from water-skiing, snow skiing, competitive swimming, group motorcycle riding, riding an inner tube towed by a boat, and even participation in the fire ritual at the Burning Man festival are activities that warrant application of the primary assumption of the risk doctrine.

    As a consequence, the Court held "the primary assumption of risk doctrine, though most frequently applied to sports, applies as well to certain other recreational activities including bumper car rides." The Court applied the doctrine even though amusement parks are subject to state safety regulations and the park owners owe participants the heightened duty of care of a common carrier for reward. Notably, the Court did remind the parties that an exception to the rule existed, the doctrine cannot be applied when the defendant increases the risk of injury over and above that inherent in the activity.

    Based on Nalwa, we expect that our firm will be using the primary assumption of the risk doctrine more often to protect our clients from liability from injuries stemming from recreational activities. Potentially, the defense could exist to protect against injuries from those riding skateboards through common areas to people engaged in recreational jogging across your properties. As always, Bradley & Gmelich remains available to discuss this case and any other legal issue with you.