By: Irvine Personal Injury Lawyer Gregory G. Brown

According to tort law, participants in sporting events are held to a different standard than people interacting in everyday situations.  The average football player is allowed to hit and tackle their opponent, whereas the same conduct on the street would be actionable battery.  Courts are aware of this obvious fact, and, thus, apply certain laws differently as they relates to sports.  Assumption of risk is such a doctrine. Though it also applies in non-sporting situations, assumption of the risk’s application in sporting events is unique.

Between Co-Participants

A participant in an active sport breaches a legal duty of care to other participants only if the participant intentionally injures another player, engages in conduct so reckless to be totally outside the range of ordinary activity involved in the sport, or fails to use care not to increase the risk of a participant over and above those ordinarily in the sport. Knight v. Jewett, 3 Cal. 4th 296, 315-16, 320-21 (1992).

The purpose of this rule is to ensure that the “fervor of athletic competition will not be chilled by the constant threat of litigation from every misstep, sharp turn and sudden stop.” Stimson v. Carlson, 11 Cal.App.4th 1201, 1206 (1992).

Application to Landowners/Sporting Event Organizers

In suits by participants in sporting events against the organizer of the event or owner of the premises, the implied assumption of risk doctrine applies, but in a different manner.

For these defendants, there is a general duty not to increase risks to a participant over and above those inherent in the sport.  This duty includes providing a safe field free from any dangerous conditions, but does not include preventing the ordinary risks of a sport.  Such conduct is totally outside the range of ordinary activity involved in a sport, and any risks resulting from that conduct are not inherent to the sport, if the prohibition of the conduct would neither deter vigorous participation in the sport nor otherwise fundamentally alter the nature of the sport. Freeman v. Hale, 30 Cal.App.4th 1388, 1394 (1994).

Application to Personal Injury Lawsuits

If the court finds that an injured participant “assumed the risk” of injury, then a defendant has two different defenses available.  These defenses are known as “primary” and “secondary” assumption of risk.

Primary Assumption of Risk

“Primary assumption of risk” describes the situation in which the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury.  Thus, if the Court finds the assumption of risk doctrine applies, it operates as a complete defense to the plaintiff’s recovery.  Knight v. Jewett, 3 Cal. 4th 296, 314-15 (1992).

Secondary Assumption of Risk

“Secondary assumption of risk” involves a situation in which the defendant owes a duty of care to the plaintiff, but the plaintiff knows of the risk and decides to encounter it anyway. Knight v. Jewett, 3 Cal. 4th 296, 315 (1992). In this situation, the defendant’s fault is reduced by the proportion that the participant contributed to their own injury.

Conclusion

Participants in sporting events assume certain risks while competing in the sport. Risks of injury due to ordinary competition will not be actionable against co-participants and other third parties.  If, however, a person or entity goes beyond the risks inherent in the sport and an injury results, then the assumption of risk doctrine will not apply and grounds for a lawsuit will be present.

Orange County Personal Injury Lawyers Brown & Charbonneau, LLP

Irvine Personal Injury Lawyers Brown & Charbonneau, LLP

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Written by: Gregory Garth Brown

Many of us have encountered some type of release or waiver of liability form throughout our lives.  Whether it is for youth sports, joining a gym, or using a private banquet facility, these forms are everywhere.  If you get injured, though, is the release enforceable in court?  Well, it depends on the circumstances.

A pre-activity release of liability may negate the duty of the party requesting your release of liability (the “releasee”) to act with reasonable care for your safety on the premises.  This “duty” is an essential element to a successful negligence action.  The result is that you may have expressly consented to relieve the party requesting release of an obligation of care towards your safety.

For such a release to be effective, it must be clear, unambiguous, and explicit in expressing the intent of the parties.  Many issues arise, however, surrounding what the parties intended to agree upon.  These issues include whether the release contains any ambiguities that provide for alternative meanings for the words in the release, whether the release is clear and explicit, or whether the scope of the release covers the particular negligence that caused a party’s injury.

All of these issues depend on the specific language of the release, the context within which the release was signed, and the inherent risks associated with the sport or event you are attending.

If you have been injured, signing a waiver may not preclude your recovery.  Consulting with an experienced personal injury attorney will help you determine whether you have a case.

Irvine Personal Injury Lawyer Gregory G. Brown

Orange County Personal Injury Lawyers Brown & Charbonneau, LLP

Irvine Personal Injury Lawyers Brown & Charbonneau, LLP

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http://www.bc-llp.com/Personal-Injury-Litigation/

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The statute of limitations, or time within which you must file a lawsuit, is typically 2 years in a California personal injury case.  However, if you are hurt on public property, a shorter more specific claim procedure must be followed.

Claim Presentation

A claim for personal injury or death against a state or local governmental entity is governed by the California Government Claims Act.  Under this act, no suit for money damages may be brought against a city, state or municipal government (or government employee acting within the scope of employment) unless a timely claim has been presented to the entity within 6 months after your injury.  For example, if you are injured in a public park due to the negligent maintenance, design or upkeep of that park, you must notify that entity of your claim within the 6 month period.  Local governmental entities usually have basic forms to fill out describing the time, place and nature of your injuries.

Governmental Entity Action

After receiving your claim, the governmental entity has 45 days to either accept or reject your claim.  If the entity finds the claim is a proper charge against it and is for an amount justly due, it will accept the claim.  In all other instances the entity will reject the claim.  If the entity takes no action within 45 days, the claim is deemed rejected by law.

Time to File Suit After Rejection

Once the public entity rejects your claim, you must commence your lawsuit within 6 months of notice of the rejection by the entity.  Only if the governmental entity fails to give notice of rejection will you be able to have the full two year statute of limitations period to file suit.

Governmental Immunity

1. Dangerous Condition Exception

Public entities may be able to gain immunity from liability for their actions and those of their employees in a certain situations. For example, a public entity is not liable for injuries resulting from a dangerous condition created by a negligent or wrongful act or omission of an employee in the scope of employment if the public entity establishes that the act or omission that created the injury-causing condition was reasonable. The “reasonableness” of the act is determined by weighing the probability and gravity of potential injury against the practicability and cost of taking action that would not create risk of injury or of protecting against the risk of injury.

2. Natural Condition Exception

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Most of us have heard the phrase “statute of limitations”. But how does it affect your personal injury case? Let’s discuss it.

Statute of Limitations generally

A statute of limitations is a state or federal law that restricts the time limit within which a person may file a legal proceeding.  The main purpose of a statute of limitations is to prevent fraudulent or stale claims from being brought well after the evidence has been lost or the facts have been obscured by the passage of time, loss of witnesses, and etc.

Which statute of limitations applies in my case?

The type of statute of limitations that applies in your case is determined by the cause of action under which your claim is being brought.  For example, the general statute of limitations for personal injury claims is 2 years in California.  This 2 year limitation begins from the date the injury or harm occurred.

Unfortunately, it is not always that simple.  The statute of limitations may be shortened or lengthened depending on such factors as who is being sued or what type of specific personal injury claim is being made.  For example, a personal injury claim against a state or local governmental entity must follow an entirely different process.  No suit for money or damages may be brought unless:

1. a timely claim has been presented to the entity within 6 months; and
2. if the entity rejects the claim, suit must be filed within 6 months after the notice of rejection.

If no notice of rejection is given, then the general 2 year personal injury statute of limitations applies.

Some specific personal injury claims have extended statute of limitation periods.  General examples include prenatal injuries (6 years), medical malpractice cases (specific rules), domestic or gender violence (3 years) and childhood sexual abuse (specific rules).

What is “tolling” of the statute of limitations?

When a statute of limitation has been “tolled” it means that the time within which a claim must be brought is essentially “paused” or “suspended” due to a certain event prescribed by a statute or to ensure fundamental fairness or practicality. Basic examples include imprisonment or death. As mentioned above, there are numerous specific grounds for tolling based on the type of case you have.

Conclusion

Overall, the statute of limitations is a very serious issue in all causes of action.  If a claim is filed outside the time limit in the statute of limitations it is “barred” or prevented from being brought.  Failure to determine the appropriate statute of limitations can result in a complete dismissal of your case.

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Gregory G. Brown receives Highest Possible Legal Rating for 2011

Irvine Trial Lawyer Gregory G. Brown

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Brown & Charbonneau, LLP Irvine Trial Attorneys

The Orange County Trial Lawyers at Brown & Charbonneau, LLP are pleased to announce that litigation attorney Gregory G. Brown has again received the highest possible legal rating of 10.0/10.0 by the nationwide rating professionals at AVVO for the year 2011

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Written by: Gregory G. Brown, Certified Trial Specialist

Basic California Personal Injury Law

There are many different ways a person can be injured.  The law of “torts” covers the types of claims that are available for physical injuries, damages to a person’s reputation or character or even deprivation of a person’s civil liberties.

What is a “Tort”?

A tort is a harmful act, or failure to act, for which the law provides a remedy.  Tort law is based on the basic principle that an injured person (“plaintiff”) should be compensated by the person who is responsible for the injury (“defendant”).  Tort law provides a civil remedy, as opposed to a criminal remedy.  Therefore, tort law does not provide for punishment in the form of imprisonment or fines.  There are three types of torts: (1) Intentional Torts, (2) Negligence and (3) Strict Liability.

1.  Intentional Torts

An intentional tort is an action taken with intent (rather than with recklessness or carelessness) resulting in the harm of another.  To prove that a defendant acted intentionally, the plaintiff must show that they acted deliberately or willfully with actual or “constructive” knowledge that injury is a likely result from their actions and they made a conscious decision not to avoid such an action.  This action must result in plaintiff’s injury.  Examples of intentional torts include assault, battery, false imprisonment, trespass and even defamation.

2.  Negligence

Unlike intentional torts, torts of negligence involve the degree of care a defendant took in causing an injury and how that relates to the degree of care, according to the law, they should have exercised.  To prove a negligence claim, a plaintiff must show (1) defendant owed a duty to plaintiff to conform to a certain level of conduct, (2) defendant breached that duty, (3) defendant’s breach caused of plaintiff’s injury, and (4) that plaintiff was injured/damaged. In California, the doctrine of “comparative negligence” controls.  Comparative negligence allows a jury to compare the relative fault of plaintiff and defendant when deciding on damages.  For example, if plaintiff was 10% at fault for the accident, then defendant would only be liable for 90% of plaintiff’s damages.

3.  Strict Liability

Under a strict liability theory, plaintiff contends that defendant is responsible for their injuries regardless of whether they were at fault.  This “no-fault” liability theory was historically used in situations where defendant’s actions were ultrahazardous or abnormally dangerous.  In the last 50 years, strict liability is most frequently asserted against manufacturers or defective products.  Products liability claims encourage manufacturers to develop and produce safe products and reflects a societal change towards consumer protection.  To prove a strict liability claim, plaintiff must show that (1) a product was defective, (2) that defect was the actual and proximate cause of plaintiff’s injury and (3) plaintiff suffered harm or damages.

Conclusion

If you have been injured, there are a variety of legal theories and unique issues for which a claim of damages may be based.  Be sure to document/photograph/etc. any visible injuries, damage to property, etc.  It is important for injured individuals to find an experienced and knowledgeable personal injury attorney to analyze their claim and get them the compensation they deserve.

Additional Resources

http://www.bc-llp.com/Personal-Injury-Litigation/

http://www.bc-llp.com/blogs/injury/

http://www.bc-llp.com/Business-Litigation/

http://www.bc-llp.com/Articles/

http://www.bc-llp.com/blogs/trial/

http://on-trial.net

714.505.3000

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Written by: Gregory G. Brown, Certified Trial Specialist

Fraud and/or Misrepresentation–When does it become actionable?

Often, statements made in the business setting are incorrect, less than truthful or even complete lies. A representation may be made orally, in writing or by nonverbal conduct. However, claims for fraud or misrepresentation must meet specific elements to be considered actionable.

1.   Fraud Generally

Fraud is an intentional tort. For a claim to be successful on this basis, there must an element of fraudulent intent, or an intent to deceive.This intent distinguishes a statement from actionable negligent misrepresentation and from non-actionable innocent misrepresentation.

2.   Intentional Misrepresentation

For a claim for intentional misrepresentation to be valid, a party must show that defendant represented that an important fact was true, that representation was actually false, defendant knew the statement was false when it was made (or made it recklessly without regard for the truth), defendant intended the party to rely on the representation, the party indeed reasonably relied on the representation and was harmed by it and that reliance was a substantial factor in causing the harm. For example, in a real estate transaction, a statement by a seller that the roofing on the house was”installed last week” when it was actually 2 years old, would be an intentional misrepresentation if buyer reasonably relied on this statement and was ultimately harmed by it.

3.   Concealment

Concealment is a common scenario whereby a party to a contract intentionally conceals an important fact. To prove as such, defendant must have intentionally failed to disclose an important fact, the other party was unaware of the fact, defendant intends to deceive by concealing the fact, the party reasonably relied on the representation and was harmed by it and that reliance was a substantial factor in causing the harm. Concealment arises most frequently in situations where there is a legal or financial relationship (“fiduciary duty”) between the parties, such as business partners.

4.   Negligent Misrepresentation

Misrepresentations that are not intentional may still be actionable. The elements for negligent misrepresentation are nearly the same to those for intentional misrepresentation except that for negligent misrepresentation defendant need not know a statement was false when made. Instead, although defendant may have honestly believed that the representation was true, they had no reasonable grounds for believing its truth when the statement was made. If the statements were reckless or no true belief in their validity exists, a statement will still be considered intentional misrepresentation.

5.   Opinions–usually not covered

Ordinarily, a statement of opinion made by a party typically does not form a basis for actionable fraud. An opinion in this context is best describe as a person’s belief that a fact exists, a statement regarding a future event, or a judgment about quality, value or authenticity. A statement of opinion may form a basis for fraud if it is made by an expert with special knowledge, declared in a manner so as to be construed as true, there is a special relationship or trust between the parties, or some other special reason which would allow reasonable reliance on the statement as truth.

6.   Conclusion

There are countless variations of fraud, misrepresentation and deceit. The nuances between the different types are often difficult to ascertain. It is important to consult with an experienced fraud/business attorney if a party feels they have been a victim of fraud.

Additional Resources

http://www.sos.ca.gov/business

http://www.leginfo.ca.gov/.html/bpc_table_of_contents.html

http://www.irs.gov/formspubs/inde,.html

http://www.bc-llp.com/Business-Litigation

http://www.bc-llp.com/Articles

http://www.bcllpblog.com/injury

http://on-trial.net

http://www.bc-llp.com

714.505.3000

Fraud Lawyers

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CACI Jury Instructions

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Gregory G. Brown, Certified Trial Specialist

Brown & Charbonneau, LLP

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Expedited Jury Trials (or “EJTs) are now available in all California State Courts (limited & unlimited) starting January 1, 2011. This alternative jury trial process is a streamlined method for handling civil actions to promote the speedy and economic resolution of cases and to conserve judicial resources. An expedited jury trial is heard by a smaller jury, and the goal is to complete the trial in one day.

Learn the Rules of Procedure, Rules of Evidence, Pros & Cons, Pitfalls, Rights to Appeal, and more.

To sign up:  www.octla.org ]]> http://www.bcllpblog.com/injury/?feed=rss2&p=112 0 http://www.bcllpblog.com/injury/?p=106 http://www.bcllpblog.com/injury/?p=106#comments Mon, 31 Jan 2011 08:17:31 +0000 Gregory Brown http://www.bcllpblog.com/injury/?p=106 Continue reading →]]> OCSC has implemented new “expedited trial” program. For certain cases, a jury trial will last 6 hrs. – 3 hrs. per side. Two lawyers who have used this program call it a success!

award given to Board Members.

given to Board Members.