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California Tort Claims Act 2017

California’s Tort Claims Act (CTCA) includes the rules and regulations that govern how claims are filed against a government entity. If the government is to be named in a lawsuit, the claim must fall within the guidelines of the California Tort Claims Act.

Situations wherein your claim will fall under the Act include:

  • You trip and fall in a government building
  • A county vehicle is involved in a motor vehicle accident with you

If a government employee or agency was negligent in some way, you’ll need to follow the guidelines of the California Tort Claims Act. But if the government was not involved in any way leading up to your injury, a personal injury lawsuit can be filed.
 

Timely Written Claims: 6 Months to File

A public entity can only be sued if the plaintiff:

  • Provides a written claim for damages
  • Provides the written claim within 6 months of the incident

Unlike personal injury claims which have a two-year period to file a lawsuit, you must file a lawsuit against a governmental entity, or public entity, within a six-month period. Failure to make your claim within this time, which will be presented to the entity in question, will void your ability to file a claim.

The time starts to tick once the incident occurs –  when you’re filled with medical urgencies, financial issues and life-changing events.

If you’ve made your claim in accordance to the government code, you’ll need to wait.

Public Entity Responsibility

If you’ve provided your written claim, the public entity must respond in a 45-day period after being served. The public entity will respond with the entity’s action on the claim. The entity has four main options at this point in the claim process:

  1. Reject the claim
  2. Accept the claim
  3. Reject in part
  4. Compromise

Reject in part and compromise are the two options that provide the most concern. An entity has the legal right to reject in part, but accept the balance of the claim. A compromise will be a negotiation wherein you’ll need to go back and forth with the entity.

What happens if you don’t receive a response?

  1. If no response is given to your claim, the court will view this as a rejection. A rejected claim can be beneficial because a claim that’s rejected provides a 2-year period from the date of the injury to file suit.
  2. If a proper response is given, you as the claimant, have just six months to file suit.

You have just six months to file suit, so it’s imperative to file within the statute of limitations or lose your right to file. Government agencies and employees often respond to written notices. It’s very unlikely that the notice will go unanswered, although it can and does occur.

Limitations and Expectations Under the California Tort Claims Act

CTCA encompasses all civil liability for money and damages. You can follow the Act when you’re in a car accident with a government employee or you fall in a government building due to a negligent act that failed to make an essential repair.

Negligence of a government employee must fall within:

  • The scope of employment
  • In the course of a government function

For example, if a government employee was out on the weekend, enjoying a day off and was in a car accident, they cannot be sued as a government employee. A personal injury claim would need to be filed instead.

And if the employee decided to go to the bar when they were in the middle of work, the government agency can argue that the accident was caused by actions not within the scope of the employee’s job.

Under the CTCA, you cannot file a claim against the negligent person directly.

So, if you can file a claim against the local government, you cannot target the employee directly in a separate case. This provides protection for employees and ensures that multiple cases for the same circumstance are not filed.

Public entitles are liable for injuries that are a result of the entity’s failure to carry out their duty.

In essence, this means that if a public entity is tasked with protecting the public in some way and doesn’t carry out their duty, they may face legal action. A fire department is a great example of a public entity that has a duty to the public.

If the fire department failed to respond to a call, the person injured in the fire can seek damages against the fire department.

But there are some exceptions to the law, too, such as:

  • Injuries related to failed or passed legislation
  • Injuries sustained by the National Guard
  • Injuries due to the issuing of a permit, license or order
  • Injuries due to failing to enforce the law
  • Injuries due to misrepresentation

You cannot sue the government for their failure to pass a legislation. You can also not sue the government because they supplied a driver with a license and said driver caused a motor vehicle accident.

The CTCA requires that the government or the employee had to act in some negligent manner to be held responsible under the CTCA.

Filing a Claim

If you plan to file a claim against a county, state or government entity or agency in California, you must provide a written notice with the following information:

  • Name and mailing address of the claimant
  • Mailing address where notices are to be mailed
  • Date of the incident
  • Location of the incident
  • Detailed description of the incident
  • Name of government entity or employees that caused the injury (when possible)

You’ll also need to claim losses. If the losses are under $10,000, you must list the claim and note how the figure was calculated. If the claim of losses is more than $10,000, you’ll need to determine if the case is a limited civil case, or a case where you’re seeking less than $25,000 in damages.

Many municipalities in California offer a free form that will act as a written notice. I recommend searching for and using one of these forms when available. The forms streamline the notice process and ensure that you provide all necessary information to move forward with your claim.

If you or a loved one has been injured and it was not your fault you shouldn’t hesitate to contact Hamparyan Injury Lawyers  to arrange a free consultation to assess whether you are eligible to file a personal injury claim.

Another Bike Accident in Bike Safety Month

It’s Bike Safety Month in San Diego. It’s not just a San Diego event, but is something that has been organized by the National Highway Traffic Safety Administration (NHTSA) all over the U.S. in an attempt to cut down the number of serious injuries and fatalities which befall cyclists every year. More about Bike Safety Week and the NHTSA’s “Roll Modeling” later in this article.

Typical San Diego Bike Accident

One person who didn’t take any notice of Bike Safety Month was Heejoon Lee. Heejoon Lee was arrested after he allegedly hit a 44 year old bicyclist close to the intersection of Palmilla Drive and La Jolly Colony Drive in San Diego. According to the police report, Lee’s Honda Accord hit the cyclist from behind, but the driver failed to stop, as is required by California law. He lost control of his vehicle, possibly because of the collision or because he was drunk or both, and then crashed into vegetation by the side of the road 1,000 feet from where he hit the cyclist. Police found the driver and arrested him. He has been charged with two felony charges: hit and run and DUI.

The cyclist was taken to hospital with a spinal fracture, as well as a fractured pelvis.

The accident is typical of the 45,000 bicycle accident injures that occur every year nationwide. In addition to serious injuries, there are over 800 cyclists killed every year. 2.3% of traffic accidents involve bicyclists. To be fair, some cyclists do not always ride safely. That’s something that the NHTSA is trying to change with Bike Safety Month, but the fact is that in any collision between a motorized vehicle and a bicycle, it is almost always the cyclist who comes off worst.

Roll modeling with the NHTSA

The NHTSA’s “Roll Model” (it’s not a typo, it’s a pun on “role modeling”) theme for Bike Safety Month is aimed at both motorists and cyclists and is an attempt to improve awareness of the dangers to cyclists where cyclists are forced to share the road with vehicles. Let’s face it, California is dominated by automobiles. There has been a lot done in some cities, even car mad L.A., to improve cycle ways and keep bikes and vehicles apart but there are many situations where they must use the same stretch of road.

Bike riders are targeted too. They are urged to keep a sharp look out, wear high visibility clothing, use a bike helmet and keep to the road rues. That means not running a red light, failing to stop at a controlled intersection or weaving in and out of vehicles in congested lines of traffic.

The Three Feet for Safety Act

Motorists are urged to keep a look out for cyclists and give them plenty f room. The Three Feet for Safety Act applies in California and drivers can be fined if they don’t make sure they give a minimum of 3 feet clearance between themselves and a cyclist. Of course, there are circumstances in which a driver cannot safely pass more than 3 feet from a cyclist without putting others or even themselves in danger, but the law still instructs motorists to slow down and pass carefully.

Legal action possible for cyclists if hit by an unsafe motorist

The 44 year old in the accident described at the start of this article will need serious surgery. There is no guarantee that he is going to be as healthy as he was before the accident. He may need to spend months off work recovering. There is a huge financial cost to accidents like this. Even if the person who allegedly caused the accident is found and charged it doesn’t necessarily make it any easier for the cyclist.

That’s where a personal injury lawsuit comes in. If a cyclist is seriously injured but can eventually prove that he or she was hit by an unsafe driver, then there is the possibility that the driver can be sued. The legal process is not straightforward as much depends on the degree of proof available it’s preferable to seek legal assistance from a bicycle accident attorney like Robert Hamparyan of the Hamparyan Injury Lawyers in San Diego.

Big Drop in Boating Accidents in San Diego County

It’s not often that news about personal injuries is good. The accident rate, whether it is on the state’s highways or in a shopping mall, just seems to climb and climb. But good news has emerged about California boating accidents and it concerns us right here in San Diego County. According to a number of different sources, both fatalities and serious injuries caused by a boating accident have actually dropped in the last ten years.

The news is particularly good because San Diego is a California boating mecca. There are thousands of private boats in our area, including power boats, yachts, kayaks, paddleboards and inflatable boats of all types.

At times, when the weather is calm and benign, which is a lot of the time in our part of the world, it can seem like a boater’s madhouse out on the water in San Diego. So why is the number of accidents down?

Boating Accident Number Crunching

The source of the data is the California Division of Boating and Waterways. According to their data, the number of serious boating accidents has declined by around a third between 2005 and 2015. That means all San Diego’s waterways, including the ocean, bay areas, lakes and reservoirs.

To be honest, the authorities don’t seem to know exactly what is causing the drop in boating accidents. Some people think that the decline is not due to safer boating attitudes but simply because the number of registered boats is less than it was ten years ago. Less boats, less accidents, goes this theory!

State officials prefer their own theory: San Diego waters are safer and less accident prone because of two simple reasons:

  • There is stricter monitoring of boater behavior out on the water;
  • Education campaigns have resulted in fewer accidents.

So, how do the numbers stack up? There were only 55 boating accidents recorded last year, in contrast to 87 ten years ago. The figures show that in the last ten years 742 accidents have been reported involving boats in the San Diego County area. 469 injuries and 27 fatalities were recorded in that period.

‘Are Better San Diego Boating Accidents a Result of Something Totally Innocuous!’

John Handemeyer is one person who should know what he is talking about. He’s the marine safety lieutenant who works for San Diego’s Lifeguard Services Division. He says that the drop in serious accidents is definitely due to education, enforcement and signage.

Boaters are not as proficient as car and truck drivers on land. In many ways, boaters have to use their common sense more than they might do when behind the wheel of an automobile. They have to take notice of much more around them, not just other boats. There is the variations in the weather that can affect safe boating, as well as the presence of surfers, swimmers, water ski-iers and kayakers, all enjoying themselves in the same stretch of water. There is only a certain amount of space so boaters do have to take care. Negligence can result in serious boating accidents and head on boating collisions, capsizes and sinkings.

Causes of Boating Accidents in the San Diego Area

Most boating accidents happen when there are collisions between two boats. Boat operators may be drunk, affected by drugs, unsure of the collision regulations, distracted while in charge of their boat, not in command of their vessel at the time of the accident, unsure of their navigation or one of several other reasons.

Despite the reassuring news about boating accidents in San Diego, there is still a chance that you might be a boating accident victim if you venture out on the water in San Diego. The problem is that even if you are particularly careful and experienced as a skipper of your own vessel, it is hard to be totally prepared for mistakes and negligent actions made by other boat operators.

Boating accidents can be very serious. Because of the environment in which boating accidents take place, if someone falls overboard it might take hours to find them. It may not be immediately obvious if someone on board has fallen over the side or even where their body has been taken to by the tide or the currents.

This can be a harrowing time for the family of anyone who has been involved in a boating accident in the San Diego area. It is important to contact an experienced boating accident attorney in the San Diego area to explain what happened and present evidence that you may think is useful to you if you decide to carry on with a personal injury claim.

Robert Hamparyan is an experienced personal injury attorney who has dealt with many San Diego boating accident cases before. He has an outstanding reputation for his success with personal injury accidents and provides a free initial consultation.

San Diego Motorcycle Accident Results in Settlement for Injured Riders

The city of San Diego recently agreed to a $375,000 settlement for the riders of a motorcycle who were severely injured in an accident in the neighborhood of Clairemont Mesa. This was after two years of litigation against the city for what plaintiffs claim was negligence for failure to construct a safe roadway.

In 2014, two people were injured when a vehicle pulled out of a parking lot which resulted in an accident with the motorcycle. Injuries included severe injuries to one of the rider’s arms and a neck injury for the other rider.

The lawsuit claimed that the city “and its employees, agents, contractors and representatives, were negligent in the course and scope of their employment, in failing to appropriately designate, place, situate, sign, stripe, mark, paint, delineate, illuminate, design, construct, maintain or otherwise provide, identify and/or control with appropriate traffic control devices, an appropriate roadway facility.”

This settlement brings to light the liability of others involved in a motorcycle accident. While the motorists involved are likely to be at fault, there are also outside factors to consider for liability.

So how is a Municipality Liable for a Motor Vehicle Accident?

Whenever there is an accident involving a motor vehicle, people assume that it is the fault of the driver or drivers involved in the collision. This is not always the case. While drivers may be to blame for the majority of accidents, there are times when others are to blame.

In the case of this accident, the plaintiffs claimed that the city failed to properly mark the roadway and provide for a proper traffic control device. Instead of it being the fault of the driver who pulled in front of the motorcycle, the victims claim that the accident would not have happened if the city would have erected the proper traffic control at the intersection.

The municipality who maintains a roadway can be liable if it can be shown that their failure to maintain the roadway was the cause of the accident.

Examples of Poor Roadway Maintenance

A municipality is required to maintain the roadways within its jurisdiction. This includes properly painting lanes, clearing debris from the roadway, and repairing damaged sections of the road. If they fail to make repairs such as filling in potholes and allowing painted lines to wear away, a lawsuit could potentially be filed as a result of their failure.

In addition to maintaining the roadways and keeping them free of debris, municipalities must keep proper traffic controls in place. This means that traffic signals, warning signs, speed limit signs, and other devices that assist with traffic control must be implemented. Also, construction zones must be properly marked and traffic barriers placed in the correct locations in order to protect workers and warn motorists.

Teenager Seriously Injured Due to Poor Road Maintenance

Another example of poor road maintenance occurred in 2011 when a client of this firm was seriously injured in an accident on SR-76. The victim was on his way to baseball practice when he was involved in a head-on collision with another vehicle. The victim was extricated from the vehicle and airlifted to the hospital while in a coma.

During the liability phase of the trial against the California Department of Transportation (Caltrans), the jury found 65% liability on the part of Caltrans for a poorly designed roadway. The jury found the collision was caused by an excessive pavement drop-off edge which constituted a dangerous condition of public property.

What Happens When a City Fails to Maintain Traffic Controls and Roadway Conditions?

As you can see from the recent settlement, it can cost a municipality financially for failing to maintain the roadway. Unfortunately, it can also cost a person their life.

In 2013, a jury in Ohio awarded the family of a deceased motorist more than $3 million after a pothole was blamed for her death. The jury stated that Department of Transportation was liable for “negligence in failing to maintain the roadway in a reasonably safe condition” as the sole proximate cause of the crash.

Summing It Up

A city can be liable for failing to maintain the roadway when it results in an accident. This can be anything from failing to remove debris to not setting up proper traffic controls. If you are injured as a result of poor road maintenance, you should contact a personal injury attorney immediately to determine the extent of liability.

Jury Awards Huge Sum in Death of Construction Worker

A jury in neighboring Los Angeles County determined that a construction company was to blame for the death of one of its employees who died in 2011. The fatality occurred when the employee  was helping to place a wall in a construction area which later collapsed on him, causing serious head injury which resulted in his death.

Ultimately, it came down to the site plans which called for placement of the wall without proper support. The jury deliberated for less than a day before awarding the victim’s family $3.5 million in economic damages and $23.5 million in non-economic damages. The judgement against the construction company came as the jury determined it was 55% at fault for the accident.

This case is a perfect example of how an employer may be liable for harm that comes to an employee as a result of a construction accident.

Construction Accidents are far too Common

Construction accidents can be serious and often result in death. Despite proper precautions taken by both employers and employees, there can sometimes be a lapse that leads to serious injury or death.

In October 2013, a worker was killed in Oceanside at a construction site near El Camino High School. The death was the result of a structure collapse that pinned the worker underneath a section of retaining wall. This is one of many construction accidents that took place in 2013.

Other accidents of note include a construction worker who was killed when hit by falling rebar near Pacific Highway and West Washington Street; and, a construction worker in Jamul who fell five stories to his death while working at the construction site of the Hollywood Casino.

We could list many more accidents that have taken place in San Diego County over the last few years but, you can already see that these types of accidents are far too common. And, for every death, there are way more accidents with serious injuries such as broken bones, paralysis, and even amputation.

Why Construction Accidents Happen

As stated previously, employers and employees do take necessary steps for the safety of everyone on the job site. However, there are times when a lapse in judgment takes place and can cause harm. This can be on the part of the employee or on the part of the employer.

When an employee fails to take proper safety precautions there can be serious injury that takes place. For example, a crane operator who fails to visually clear the area they are working is more likely to cause an accident than someone who checks for people walking in the area. An accident can not only injure the employee failing to take the precaution but also injure others nearby.

An employer is mandated to make sure the premises are safe for workers. Some employers fail to do so and unsuspecting employees can be injured by believing an area is safe. Employers sometimes provide workers with substandard or broken equipment which can also result in injuries to employees.

What Happens Legally After an Accident?

After the damage from an accident has been taken care of, including providing necessary medical treatment for the victims, it must be determined who is at fault. Cal/OSHA is one agency that will likely investigate the incident but it is also wise to contact an attorney for legal advice. Remember that there is always a time limit to filing a claim so make sure to seek advice as soon as possible.

Dog Bites Are Costing More Than Money in San Diego County

These are the types of headlines you hate to read: 3-Day-Old Baby Killed by Dog. Unfortunately, these type of headlines are far too common. Pets are commonplace and part of our lives. However, failure to take proper care of them or warn others when there is a danger can lead to serious injury and even death.

Losing a loved one is never easy. When someone is hurt as a result of a dog bite, the dog owner can be both criminally and civilly liable for the harm caused by the dog.

Who is Responsible for a Dog Bite?

The obvious answer is that the dog is responsible for a dog bite. However, there are other circumstances that make the owner just as liable. For instance, anyone who chooses to own a certain breed of dog is considered to be aware of the potential dangers associated with owning that type of dog. Therefore, if the dog bites someone, the owner is liable for the injury.

Dog owners are also responsible if they are aware of a dog’s history to bite people and fail to make proper warnings. For instance, if someone legally steps into someone’s yard (e.g., a postal worker) and gets bitten by a dog, they could potentially sue the owner if there were no warning signs, such as “beware of dog” posted on the perimeter.

What is the Penalty if a Dog Attacks?

In California, someone can be held both criminally and civilly liable if their dog causes harm to someone. The actual criminal sentence or civil judgment often depends on the amount of harm done. While there is no set limit to monetary damages, criminal penalties fall in line with California sentencing guidelines for the crime charged.

In 2013, the owners of two pit bulls in San Diego were sentenced to four years in prison for involuntary manslaughter. This after their dogs were found to have attacked and ultimately killed their neighbor. The victim was attacked by both dogs and had to have two limbs amputated and suffered nearly six months in the hospital before succumbing to her injuries.

While the above shows an extreme  example of criminal penalties, many dog bites don’t result in death and wind up costing the dog owner money as opposed to jail time. In 2015, the average award for a dog bite claim was $30,000.

Liability Extends to More than the Dog Owner

Yes, the owner of a dog can be liable but there are others who can be sued as well. For instance, a recent suit filed against the County of San Diego and an animal rescue organization who failed to notify the new owners of a dog of potential issues. A month prior to the dog being adopted, it had bitten another individual prior to biting the nose of an autistic man who became the new owner of the dog.

What to do if You Sustain a Dog Bite

If you or someone you know is bitten by a dog, you obviously need to seek medical attention prior to doing anything. Once you have taken care of any injury, contact an attorney to determine if you may be entitled to recover damages for the injury you sustained.

Liability of the San Diego County Jail System for Wrongful Death

Over the past year, San Diego County has made national news and not for a good reason. The county jail system has been highlighted as having one of the highest suicide rates in the nation.

Relying on a database implemented by the Huffington Post, The San Diego Union-Tribune reported in July that more than 800 people have died in U.S. jails in the past year, 128 of which were in California, with 15 in San Diego County.

The issue of suicide in the jail system brings about an important discussion about wrongful death and the liability of a municipality to an inmate who dies in its custody. Wrongful death lawsuits are commonly filed in situations when someone dies in police custody. A recent settlement in Los Angeles County resulted in a $2.85 million payment to the family of a man who died while being booked into the jail.

Why Jails Are Liable For the Wrongful Death of Inmates

When a person is taken into custody by law enforcement, that person is no longer free to do as they wish. This means they must follow the orders of the arresting officer as well as the jail facility staff where they are taken. However, when someone loses their freedom, their well-being falls into the hands of the people who take that freedom.

A person in custody must be cared for. Their health and well-being must be a high priority for jail staff. If staff know (or should know) of a possible health issue with an inmate, they are mandated to monitor and treat such issue. As an example, an inmate who falls and breaks their ankle must be taken to the hospital where their ankle can be set in a cast to heal.

However, not all health problems are as obvious as a broken ankle, but every type of illness still falls under the same “duty of care” umbrella. Liability falls with the jail when they fail to treat an illness. There are protocols that must be followed when an inmate is suspected of having a mental illness. Failure to follow these protocols can make the jail staff liable if something should happen as a result of their negligence.

Wrongful Death Awards and Settlements from San Diego County

Some wrongful death lawsuits have resulted in large awards or settlements.

  • $3 million verdict – In January 2015, a federal judge upheld a $3 million verdict in the case of an inmate who died from an asthma attack that was brought on from heroin withdrawal. The jury found the jail staff failed to monitor his health problems which could have prevented the death.
  • $2.3 million settlement – In August 2016, San Diego County agreed to pay $2.3 million to settle a wrongful death lawsuit filed by the family of a man who died in jail custody. The inmate died of a drug overdose after swallowing a bag of methamphetamine. Despite the inmate showing signs of overdose he was not given medical treatment.

These are just two examples of wrongful death lawsuits from San Diego County. This is only a small sample of similar lawsuits filed against municipalities, not only in the state of California but throughout the rest of the United States.

Does Someone Have to Die For Liability to Apply

For a wrongful death claim to be made, a death must occur. However, jail staff can still be liable for harm even if a death does not occur. This would fall under a general negligence claim and accounts for an even larger number of lawsuits than those filed for actual deaths.

Summing It Up

Liability falls to someone who fails to protect someone they are obligated to. This includes police and jail guards who are responsible for the health and well-being of anyone they take into custody. If you or someone you know has been injured or killed while in custody, you should contact a personal injury attorney immediately to determine what you are entitled to.