ISSUE SPOTTING PAST THE COLLISION TO FIND DEEPER POCKETS
California has more uninsured drivers than any other state. With California’s minimum bodily injury insurance limits of $15,000/$30,000 ($15,000 per person and $30,000 per occurrence), the chance that the at-fault driver has enough insurance or assets to cover your seriously injured client is not likely. It will still hold in many instances, even if SB-1107 (Dodd) becomes law.
If Dodd passes, on January 1, 2025, there will be a mandated increase in the amount of liability insurance coverage an owner or operator of a motor vehicle is required to maintain, essentially doubling the minimum limits for bodily injury from $15,000 to$30,000 for bodily injury or death of one person and from $30,000 to $60,000 for bodily injury or death of all persons.
While the passage of this law should be applauded and lauded as a vast and much-needed improvement, it would do little in the most catastrophic of cases.
Often, attorneys look only to potential secondary defendants when the at-fault driver has no insurance or not enough insurance.
However, some of the most virtuous cases are against government entities or vehicle manufacturers, because your case can encourage actual change that will save lives.
Finding other tortfeasors
For example, we once handled a case in which the Plaintiff rear-ended another vehicle. She was over the legal blood alcohol limit, and she should not have been driving.
However, her airbags did not deploy, and her seat belt did not engage. Although several other lawyers declined the case, we pursued it and achieved a substantial result for the heirs.
Perhaps more importantly, during our investigation and prosecution of the case, a recall was issued as the defect had become established.
While it is difficult to predict how many lives were saved, it is indisputable that cars were made safer from a case that many would, and did, cast aside.
As part of every vehicle-collision case, the intake process entails determining the proper defendants in the collision, i.e., the driver of the defendant vehicle, the owner of the defendant vehicle, and whether there is a course and scope of employment issue in the case.
However, during intake, each case should also first evaluate whether there is a potentially dangerous condition case against a governmental entity.
Additionally, each case should be evaluated to determine if there could be an auto defect that caused or contributed to the collision and/or plaintiff’s injuries.
This later evaluation requires preservation of the vehicle, which we will discuss below.
We mention it here, however, because many lawyers tend to fail to do so, letting potentially significant and important cases slip through their fingers when the car is declared a total loss.
Dangerous condition
Dangerous roads cause countless deaths each year as a result of vehicle and/or pedestrian accidents in California.
The danger of the road or highway is often disregarded by law enforcement when they are preparing a report on the cause of the accident.
Regularly, the traffic-collision report will state that the driver was at fault, even when the collision was caused by the road’s design or unsafe conditions.
It often makes the government entity that designed the roadway liable for any damages caused during an accident. Claims against large government entities are highly complex.
A public entity may be held liable for injuries caused by a dangerous condition of public property if the Plaintiff establishes that the property was in an unsafe condition at the time of the injury, that the hazardous condition proximately caused the injury, and that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred. (Gov. Code,§ 835.)
In addition, the Plaintiff must establish that either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition, or (b) the public entity had notice of the dangerous condition, a sufficient time before the injury to have taken measures to protect against the dangerous condition. (Cordova v. City of Los Angeles (2015) 61 Cal. 4th 1099, 1104-05.)
A public entity may be liable for a dangerous condition of public property even when the immediate cause of a plaintiff’s injury is a third party’s negligent or illegal act (such as a motorist’s negligent driving) if some physical characteristic of the property exposes its users to increased danger from third-party negligence.
Public entity liability under Government Code section 835 arises when a feature of the property increases or intensifies the threat to users from third-party conduct. (Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1457-1458.)
There are many different types of dangerous conditions, such as defective road design, inadequate barriers, shoulder and/or drainage defects, inadequate road maintenance, missing or insufficient signage, missing or faulty guardrails, inadequate traffic control, inadequately marked construction zones, etc.
To evaluate whether you have a dangerous condition, you should take the following steps:
Inspect the scene
Often, the traffic collision report takes time to prepare, and if the government entity believes a lawsuit may be forthcoming, it may take even longer.
Instead of just sitting idly by, you should go to the scene of the collision to determine if there are any apparent dangerous conditions.
Although looking at satellite images online may be helpful, it is much more beneficial to go to the scene.
When you get to the scene, look for confusing signs, overgrown tree branches or bushes.
You should also drive in the same direction as each party, which will help you see exactly what they saw on the day of the collision, not what satellite images from an unknown time may reveal.
While you are at the scene, look for any nearby cameras from businesses or homes that may have captured the collision and can be used for further investigation.
The sooner you get out to the scene of the crash, the better, as conditions may change, such as traffic signals added or removed, trees trimmed, etc.
Traffic-collision report
As soon as you are retained, you should request the traffic-collision report. Typically, the officer who responded to the scene will provide your client with a card identifying the agency and report number.
If your client was not provided such a card or lost it, you should call the California Highway Patrol office closest to the collision.
If the California Highway Patrol did not prepare the report, you should contact the local sheriff’s department.
Once you have determined which agency prepared the report, you should request the following information:
- a complete copy of the traffic collision report and any supplemental reports;
- any toxicology reports;
- all 911 logs, tapes, and recordings;
- any dash cam footage, MVARS, body cam footage, audio recordings, or other recordings related to the incident; photographs of the collision scene;
- Any video footage obtained from third-party surveillance cameras during law enforcement’s investigation;
- Any 3D scans of the scene.
Once you receive the traffic-collision report, you should focus on the parties’ statements and the physical evidence documented, including any diagram of the scene.
The defendant driver’s statement could help identify a potentially dangerous condition.
They may allege contributing factors such as overgrown trees, blocked traffic signs, construction, etc.
The diagram of the scene may also identify hazardous conditions, such as road curves.
If you requested photographs and video, as suggested above, this may also be very helpful in seeing the vehicles at their final resting places before they were moved or towed away.
While rare, some agencies are conducting FARO 3D scans of the scene.
This data, collected on the day of the incident, will help your accident reconstructionist prepare simulations or animations based on the actual conditions at the scene.
The Statewide Integrated Traffic Records System (“SWITRS”)
Since Plaintiff must prove that the public entity had notice of the dangerous condition, a sufficient time before the injury to have taken measures to protect against the hazardous condition, you need to look at the history of prior collisions. (Cordova v. City of Los Angeles (2015) 61 Cal. 4th 1099, 1104-1105.)
While there must be a “substantial similarity” to offer evidence of previous accidents for any purpose, a stricter degree of “substantial similarity” is required when prior accident evidence is provided to show a dangerous condition of public property.
The previous accidents must be connected in some way with the condition alleged to be hazardous. (Mixon v. State of Calif. (2012) 207 Cal.App.4th 124, 137-138; Salas v. California Dept. of Transp. (2011) 198 Cal.App.4th 1058, 1072.)
The Statewide Integrated Traffic Records System (SWITRS) is a database that collects and processes data gathered from a collision scene.
The internet SWITRS application leverages this database to allow California Highway Patrol (CHP) staff, members of allied agencies, researchers, and members of the public to request various types of statistical reports in electronic format.
The application allows users to create custom reports based on different categories, including but not limited to locations, dates, and collision types. (https://www.chp.ca.gov/programs-services/ services-information/switrs-internet- statewide-integrated-traffic-records- system)
Each SWITRS report will be accompanied by a manual that will help you interpret the abbreviations used in the report.
The reports will identify similar incidents, providing concrete evidence to establish the requisite elements of notice and the dangerousness of the condition as a cause of action.
Timing
Under Government Code section 945.6, a claimant must present a tort claim to the proper entity within six months of the date of the incident.
If the government entity timely responds, a lawsuit must be initiated within six months of the date the claim is rejected.
If the agency does not provide any written notice rejecting your claim, you have two years from the date of injury or damage. (See Gov. Code, §§ 911.3, subd. (b) & 912.4, subd. (c); see also Phillips v. Desert Hospital Dist., 49 Cal. 3d 699, 706, 263.) Failure to respond within the 45 days results in a claimant being permitted to file the action within two years. (See Gov. Code, § 945.6, subd. (a)(2); Weston Construction Corp. v. County of Sacramento, 152 Cal.App.4th 183, 190, 61.)
Given the short time frame in which to file a claim, you cannot wait to start your investigation.
Determining whether a potentially dangerous condition exists quickly will allow you to obtain critical evidence while it is still available.
Moreover, while certain circumstances may permit the filing of a late claim, give rise to equitable estoppel, or even support an argument based on delayed discovery, these are paths fraught with peril and should be avoided.
Potentially dangerous condition defendants
If, after your investigation, you determine that there is enough evidence to pursue a dangerous condition case, you should file government claim forms against any public entity that owns and/or maintains the property where the unsafe condition is located.
Generally, no suit for money or damages may be brought against a government entity (or against a government employee acting in the scope of employment) unless and until a timely claim has been presented pursuant to the Government Claims Act (Gov. Code, § 810 et seq.) and either acted upon or deemed rejected by the passage of time. (Gov. Code, §§ 945.4, 950.2, 912.4; see DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal. 4th 983, 989-990; Le Mere v. Los Angeles Unified School Dist. (2019) 35 Cal.App.5th 237, 246; and Stanley v. City & County of San Francisco (1975) 48 Cal.App.3d 575, 581-582.)
For example, if you only file a claim against the city where the property is located, but the area is actually owned or maintained by the county or state, you will be prevented from bringing your case.
It’s much better to be overinclusive and dismiss defendants once you are sure who the property public entity defendant is in discovery.
Auto defect/product liability
People rely on their vehicles to travel safely every single day.
However, automobile manufacturers often sell cars with defects that can cause injuries or death. Unfortunately, there is a long history of auto safety defects in which many lives have been lost or destroyed due to dangerous designs or manufacturing errors.
Approximately 13% of all automotive accidents are caused by mechanical failures.
An automotive defect can be undetected during the manufacturing process. Some vehicles have inherent faults that may not be uncovered until a collision. Below are some common automobile defects:
- Airbag failure: Airbags can help to minimise injuries and reduce fatalities. We all expect our airbags to protect us in a collision, but if they fail to deploy, injuries may be severe.
- Seatbelt failure: Seatbelt failures may occur if the latch or retractor fails. When this happens, the seatbelt does not prevent the occupant from striking an object in front of them, such as the steering wheel, dashboard, or the seat in front. Such failure can also lead to the occupant’s ejection from the vehicle.
- Seatback failure: Some automobile manufacturers cut corners to make seats as cheaply as possible. However, this may cause a seat to collapse, injuring the person sitting in it, or cause it to fall back onto other occupants in an accident. It can be hazardous not only for the person in the seat that fails, but also for anyone sitting in the back seat.
- Rollovers: A dangerous vehicle design can make a vehicle prone to rollover. According to National Highway Traffic Safety Administration (NHTSA) statistics, SUVs were involved in 36% of the rollover-related deaths in the United States, more than any other type of vehicle.
- Roof crush: In the event of a rollover accident, the vehicle’s roof should be strong enough to withstand a certain amount of force, protecting the occupants from further injury. When the roof of a car is not reinforced, it can lead to serious injuries or even death.
The elements of a strict products liability cause of action are a defect in the product’s manufacture or design, a failure to warn, causation, and injury. (Soule v. General Motors Corp. (1994) 8 Cal. 4th 548, 560.)
In California, a manufacturer, distributor, or retailer of a product may be held strictly liable if a defect in the design of its product causes injury to a person.
In contrast, the product is being used in a reasonably foreseeable way. (Id. At 560). A design defect may be established under either the consumer expectation test or under the risk-benefit test. (Barker v. Lull Engineering Co. (1978) 20 Cal. 3d 413, 432.)
The “strict product liability” theory of recovery exposes a broad range of defendants to legal accountability for “defective” products.
Liability attaches upon proof of the product “defect” and a sufficient causal connection between defendant, the product and Plaintiff’s injury. (Romine v. Johnson Controls, Inc. (2014) 224 Cal.App.4th 990, 1000 [“for there to be strict liability, the product does not have to be unreasonably dangerous – just defective”]; see also Webb v. Special Elec. Co., Inc. (2016) 63 Cal.. 4th 167, 179; O’Neil v. Crane Co. (2012) 53 Cal. 335, 347; Carlin v. Sup.Ct. (Upjohn Co.) (1996) 13 Cal.4th 1104, 1110.)
The naturally distinguishing feature of these cases is that it is not an inquiry into the reasonableness of the conduct of the defendant(s).
Unlike negligence, the strict liability cause of action does not require proof of “duty” and “breach” (conduct falling below the applicable “reasonable” standard of care). In other words, negligence focuses on the “reasonableness” of the defendant’s conduct.
Still, strict liability ordinarily is predicated solely on the nature of the product (although defendant’s conduct becomes important in “failure to warn” strict liability cases). (See generally, Carlin v. Sup.Ct. (Upjohn Co.) (1996) 13 Cal.4th 1104, 1110-1115; Kim v. Toyota Motor Corp. (2018) 6 Cal.5th 21, 30, 33-34; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 478-479, 485.)
A design defect exists when the product is built in accordance with its intended specifications, but the design itself is inherently defective. (Barker, 20 Cal.3d at p. 429.) In Barker, the California Supreme Court recognized two tests for proving a design defect.
The “consumer expectation test” permits a plaintiff to prove design defect by demonstrating that “the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.” (Id. at pp. 426-427.)
This test, rooted in theories of warranty, recognizes that implicit in a product’s presence on the market is a representation that it is fit to do safely the job for which it was intended. (Id. at 430; see also Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 566 [“ordinary users or consumers of a product may have reasonable, widely accepted minimum expectations about the circumstances under which it should perform safely.
Consumers govern their own conduct by these expectations, and products on the market should conform to them”].)
Suppose the facts permit an inference that the product at issue is one about which consumers may form minimum safety assumptions in the context of a particular accident. In that case, it is enough for a plaintiff, proceeding under the consumer expectation test, to show the circumstances of the accident and “the objective features of the product which are relevant to an evaluation of its safety.” (Soule at 564.) It leaves the fact finder to “employ its own sense of whether the product meets ordinary expectations as to its safety under the circumstances presented by the evidence.” (Id. at 563.)
In McCabe v. American Honda Motor Co., (2002) 100 Cal.App. 4th 1111, a motorist who was injured when the driver ‘ s-side air bag in her car failed to deploy in a frontal collision with another vehicle sued the air bag’s manufacturer and the reseller, alleging the air bag was defective in both its manufacture and design. The Plaintiff provided sufficient evidence for a jury to infer that the non-deployment of an air bag in the context of a high-speed, head-on collision violates the minimum safety expectations of the ordinary consumer. Indeed, the consumer expectation theory, rooted as it is in a warranty heritage, would seem necessarily to encompass a case in which it is alleged the product failed to perform in accordance with the representations contained in its own owner’s manual. (McCabe at 1125.)
The alternative jury instruction, the risk-benefit test, is typically preferred by the Defence because it involves weighing factors involving technical issues. These technical issues usually include the manufacturer’s knowledge of the likelihood of harm, the practicability of a safer alternative design, the cost of that design, the disadvantages of the alternative design, etc. (CACI 1204.)
Investigation
As with the investigation of a dangerous-condition case, the initial steps in determining if there is a potential auto-defect case are similar. However, in a dangerous condition, we initially inspect the collision scene; here, we will start by checking the vehicle. As you might expect, it is imperative to examine the car and retain it. Without the vehicle, it will be nearly impossible to establish an auto-defect claim.
Instructive on this point is the case of Stephen v. Ford Motor Co. (2005) 134 Cal.App.4th 136, 337. In Stephen, the granting of a nonsuit was held to be proper where Plaintiff’s experts failed to satisfy the foundation for an opinion that defective tyre design and auto design caused the accident. The case involved a Ford Firestone tyre failure, and the Plaintiff did not have the tyre to pursue that case.
The court excluded Plaintiff’s expert on the basis that his opinion was not reliable to provide testimony as to a defective tyre on photographs alone.
If the vehicle belongs to or is in the possession of someone other than your client, such as a tow yard, send a spoliation letter immediately to preserve the car. Once the vehicle is maintained, request that it be made available for an inspection as soon as possible.
Often, the subject vehicle is under the control of your own client’s insurance carrier. An insurer has no tort duty to preserve evidence. (Cooper v. State Farm Mut. Auto. Ins. Co. (2009) 177 Cal.App.4th 876, 884, citing Farmers Ins. Exchange v. Superior Court, 79 Cal.App.4th 1400, 1404 [insurer has no duty to maintain an allegedly defective tyre].) However, you should attempt to obtain the carrier’s agreement to preserve the evidence.
In cases where the insured property is totalled, and the insured has sustained additional injury or damage. The insurer has a subrogation claim against a third party; counsel for Plaintiff should consider obtaining an agreement from the insurer to reserve all salvage, or a relevant part thereof. Although having no initial duty to do so, a carrier that undertakes to come to the aid of its insured is under a duty to exercise due care in performance and is liable if the harm is suffered because the other relies upon the undertaking. (Cooper v. State Farm Mut. Auto. Ins. Co. (2009) 177 Cal.App.4th 876, 892, fn. 3 [State Farm adjusters agreed to preserve the tyre which caused the accident as evidence].) Suppose a defendant enters upon an affirmative course of conduct affecting the interest of another. In that case, he is regarded as assuming a duty to act and will thereafter be liable for negligent acts or omissions. (Cooper v. State Farm Mut. Auto. Ins. Co., 177 Cal.App.4th 876, 894 [holding negligent spoliation case could be stated].)
Given the potential liability of the carrier created by agreeing to preserve evidence, you may meet reluctance to do so. If that is a situation that counsel meets, it should be remembered that pre-filing relief and discovery are available. One who expects to be a party in a California action may obtain discovery to perpetuate testimony or preserve evidence in the event an action is subsequently filed. (Code of Civil Procedure § 2035, subd. (a); 2 Witkin California Evidence 4th (2000) Discovery § 210, page 1037.) Preservation of evidence is achieved by filing a petition in the Superior Court. (Code Civ. Proc., § 2035.030 [Description of the contents of the petition].)
If a court determines that all or part of the discovery requested may prevent a failure or delay of justice, it may make an order authorising that discovery. (Code Civ. Proc., § 2035.050, subd. (a).) The order shall identify any witness whose deposition may be taken, and any documents, things or places that may be inspected. (Code Civ. Proc., § 2035.050, subd. (b).)
When you arrange for the inspection, you should have an expert present to take photos and download any information from the vehicle’s Event Data Recorder (“EDR”). Event Data Recorders are devices installed in motor vehicles that record technical vehicle and occupant information for a brief period before, during, and after a triggering event, typically a crash or near-crash.
This information includes vehicle speed, occupant seat belt use, air bag deployment, and vehicle speed and brake input for the five-second period leading up to impact. The National Highway Traffic Safety Administration (NHTSA) estimates that by 2010, at least 85% of all vehicles manufactured would have EDRs.
In rear-impact collisions, check whether any of the seats the driver or passengers occupied are completely reclined, which may indicate a seatback failure. In frontal or side-impact collisions, check whether the air bag failed to deploy. In rollover crashes, keep an eye out for stability issues, roof crush, seat belt spool-out, unintended seat belt buckle release or false latch, or tyre failure due to tread or belt detachment.
Once you have inspected the vehicle, obtain the traffic collision report, photos, and video prepared by the police or California Highway Patrol, as stated in the dangerous condition analysis above and in one of the auto-defect cases we are currently handling, our client, a 16-year-old passenger, died in a single-car collision. In the traffic-collision report, the driver told the responding officer that his brakes were not working at the time, which caused him to lose control.
At the initial inspection, your experts can help you develop and support your liability theory. Start with an accident reconstructionist to analyse vehicle speed, vehicle motions, forces acting on the vehicle, and the direction of forces acting on the car. From there, retain an expert in the exact defect involved (i.e., airbag or seat belt). A biomechanical expert may also help evaluate the driver and/or passengers’ role in causing injuries and how those injuries relate to the defect involved. All of these experts should work together to ensure their opinions are consistent and do not contradict one another.
Please do it for your client and all of us.
During your evaluation of every significant vehicle collision case, it is your duty to perform an analysis of the existence or non-existence of a dangerous-condition claim and/or auto-defect claim. Obtaining and preserving key evidence as soon as possible after the collision is crucial, particularly regarding the vehicle and the scene.
After all, not only is such an evaluation critical to the proper representation of your client’s best interests, but it is also for the improvement of safety for us all.
Santo Riccobono is a partner at Ellis Riccobono, LLP in the Ventura County Office. He practices personal injury, auto defect, and dangerous condition cases across the state.
Tobin Ellis is a partner at Ellis Riccobono, LLP in the Los Angeles Office. He practices personal injury, auto defect, and dangerous condition cases across the state.
Tobin is a CAALA board member.