Update
- 11/29/06
Assumption of the Risk
California Supreme Court determines that being intentionally hit by a pitched baseball is an inherent risk in the sport.
In Avila vs. Citrus Community College Dist. (2006) 38 Cal.4th 148, 41 Cal.Rptr.3d 299, the plaintiff college baseball player sued both colleges involved in a game and others after he was struck in the head by a pitch which was intentionally thrown at his head in retaliation for a player on the opposing team having been hit with a pitch earlier in the game. The opposing college demurred to the complaint arguing that plaintiff had assumed an inherent risk of the sport which included being hit by pitches intentionally thrown at him. The California Supreme Court agreed, finding in both professional and college baseball a pitcher intentionally throwing at a batter did not fall outside the range of ordinary activity involved in the sport. The Court limited its holding to where a pitcher intentionally hits a batter at the plate, as opposed to throwing at a player elsewhere on the field such as in the on-deck circle.
Automobiles
An employee can be found to be a permissive user of his employer’s vehicle despite evidence that the vehicle was taken without authority.
In
Taylor vs. Roseville Toyota, Inc. (2006) 138 Cal.App.4th 994, 42 Cal.Rptr.3d 68, an employee was driving a vehicle owned by his employer while on a personal errand when he rear-ended a stopped car. The defendant car dealership argued that it was against company policy for its employee to be driving one its vehicles on personal business and that the employee had not obtained specific permission to use that vehicle on the date of the accident. The jury found the employee to be a permissive user despite evidence indicating the employee was in violation of company policy when he took the vehicle. Affirming the judgment, the Court of Appeal determined that the jury was not required to believe the defendant’s evidence and could infer that the employee had permission simply because of the existence of the employer/employee relationship.
Corporations
Insurer required to intervene in action in order to defend insured corporation that had been suspended for nonpayment of taxes.
In Kaufman & Broad Communities, Inc. vs. Performance Plastering, Inc. (2006) 136 Cal.App.4th 212, 39 Cal.Rptr.3d 33, a defendant corporation was represented by a law firm which had been employed by its insurance carrier to defend it. In their answer to the complaint the attorneys designated their client as "Performance Plastering, Inc., a suspended corporation, by and through its general liability insurance carrier, CalFarm Insurance Company." The Defendant corporation made no attempt during the litigation to be revived from its suspended status. At the conclusion of the litigation, the court struck an attempt by the defendant corporation to recover its costs and attorneys fees, holding that the insurance carrier could not participate in the litigation in the name of its insured but instead must intervene in the action in order to defend it.
Products Liability
The doctrine of Primary Assumption of the Risk does not apply in a products liability action in favor of a manufacturer.
In
Ford vs. Polaris Industries, Inc. (2006) 139 Cal.App.4th 755, 43 Cal.Rptr.3d 215, plaintiff suffered catastrophic injuries after falling off of the rear of a two-seater personal watercraft being operated by another person. The owner/operator of the watercraft was dismissed after it was determined that falling off the watercraft was an inherent risk of the sport. Plaintiff also sued the manufacturer of the watercraft contending that a safety strap should have been available which could have prevented the passenger from falling backwards off the rear of the watercraft. The Court of Appeal held that the defense of primary assumption of the risk was not available to the manufacturer of the defective product and additionally found that comparative fault could not be assessed against the owner/operator of the watercraft.
Punitive Damages
The Appellate Court may unilaterally reduce a punitive damage award to constitutional limits appropriate for that case.
In
Gober vs. Ralphs Grocery Co. (2006) 137 Cal.App.4th 204, 40 Cal.Rptr.3d 92, plaintiff employees brought a sexual harassment case against the defendant and were awarded both compensatory and punitive damages. Following a second trial each of the plaintiffs was awarded $5,000,000.00 in punitive damages, representing a ratio between punitive and compensatory damages ranging from 25 to 1 to 100 to 1. In a motion for judgment not withstanding the verdict the defendant requested that the trial court reduce the punitive damage awards to a constitutional maximum. The trial court denied the motion and conditionally granted a new trial as to any plaintiff who did not consent to an award equal to 15 times her compensatory damage award. The Appellate Court determined in this case that the constitutional maximum of a 6 to 1 ratio of punitive to compensatory damages would be recoverable. Rather than granting a third trial, the Appellate Court directed the trial court to enter judgment in favor of each of the plaintiffs by reducing the award of punitive damages to 6 times their respective compensatory damage awards.
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