Friday, May 22, 2015

Are You An Eggshell Plaintiff?

Not everyone is alike. Indeed, that is what makes society so interesting. Los Angeles is comprised of artists, athletes, professionals, skilled workers, and educators. Personalities vary. Some are outgoing and eccentric, others are introverted. People from all different types of backgrounds, and ethnicity,  make up the community that we live in.

Similarly, not all injured parties are the same. Regardless, under the law, a defendant is liable for all injuries caused, even if the plaintiff is more susceptible to injury than the average person. You "take the victim as you find him or her." So, if a plaintiff is hypersensitive or predisposed to injury, the defendant may be out of luck.

This doctrine is referred to as the "Eggshell Plaintiff" Rule. The foundations of the principle lie in common law. The Eggshell name originates in the following hypothetical (which has been changed slightly):

Danny Defendant is speeding and drinking a glass of wine while he drives down Ventura Boulevard. Pennny Plaintiff is stopped at a red light 20 feet in front of Danny Defendant. As Danny Defendant approaches, he doesn't have enough time to apply the brakes. Penny Plaintiff screams as she sees Danny Defendant's car quickly advancing. Sure enough, Danny Defendant's car rear ends Penny Plaintiff's vehicle. Unfortunately for both Danny Defendant and Penny Plaintiff, Penny Plaintiff has an eggshell skull. The slightest pressure on her skull can cause it to fracture. When Penny Plaintiff's vehicle was violently struck from behind, her head hit the steering wheel, which resulted in a severe skull fracture. All of the doctors consulted after the accident said that no other person would have suffered a skull fracture; it is only because Penny Plaintiff had an eggshell skull. Nevertheless, Danny Defendant will have to pay for all damages related to the fracture, which is the full extent of Penny Plaintiff's injuries.

California has a jury instruction available should a Eggshell Plaintiff case go to trial. California Civil Jury Instruction (CACI) 3927 provides:

"Plaintiff is not entitled to damages for any physical or emotional condition that he or she had before Defendant's conduct occurred. However, if Plaintiff had a physical or emotional condition that was made worse by Defendant's conduct, you must award damages that will reasonably and fairly compensate him or her for the effect on that condition."

A lot of cases that have been filed in a court of law will involve discovery. During discovery, it is common for defense attorneys to ask about "preexisting conditions" or prior accidents. A defendant will not be liable for injuries that existed before the accident. But, the defendant will be liable if the prior injuries of plaintiff are aggravated by the negligent conduct of defendant. Thus, it is important to determine whether a plaintiff has suffered an aggravation or if the injury was not related to the negligence of the particular incident.

In a nutshell, all eggshell readers need not worry. Should you be involved in an accident, the defendant or at-fault party will be responsible for all injuries incurred, even it is quite unusual.

Friday, May 8, 2015

Traffic Changes in LA County Present New Obstacles for Defendants

Traffic citations are issued to almost every driver in Los Angeles. Broken tail light, speeding, driving without a license are all common mistakes.  No one is spared from the traffic courts, including attorneys, judges, and sometimes law enforcement personnel. Thus, everyone should be angry about recent changes being implemented throughout Los Angeles County.

Penalty assessments use to be the only outrageous part of getting a ticket. For those unfamiliar with penalty assessments, let me explain. The California Legislature has voted multiple times to add additional assessments to every single citation in California, on top of the base fine. These assessments are now a reliable way to increase revenue for the state. What use to be a $100 fine, adds up to around $500 after state assessments. Recently, the LA Times and other media outlets have criticized the burdensome law, which affects low-income families the most.

Now the courts have taken egregious steps to make traffic citations even more onerous. To my knowledge, these changes have not yet been made available to the public. Let me go through some of the major changes:


A failure to appear is a separate charge that can be added to a ticket, if a defendant misses his or her court date. When a defendant misses a court date, the court will issue a warrant, and place a hold on the defendant's driver's license. A hold will then lead to a suspension of the driver's license.

Upon notice of the suspension, defendants use to be able to go to the court clerk and purchase an abstract. An abstract removed the hold, and the defendant could then get his or her license reissued. No more.

Now, holds will not be removed until disposition of the case. Attorneys can and should request a speedy trial in light of these changes.


Some defendants cannot take advantage of traffic school (completion of traffic school, available once every 18 months, keeps a negligent operator point off of the defendant's driving record with the DMV).

A strategy that used to be utilized by attorneys, when traffic school was not available, was negotiation with the citing officers. When evidence was disputable, or when officers' were in a good mood, the court would accept an amended violation and plea agreement. This means that the officer would change the vehicle code violation to a non-moving violation (carries no point), and the defendant would change his plea to guilty. The moving violation would then be dismissed. This is no longer an option.

Given that negotiations are off the table, attorneys will have no other choice but to put on a trial. This means that discovery requests may be made more often.


Defendants miss their trial dates too. Before the new changes effective April 1, 2015, the court would have simply issued a warrant and placed a hold on the defendant's driver license. Unfortunately, this is not the case now.

Bench officers may now hold a trial in absentia. In absentia is a Latin phrase meaning "in the absence" of the defendant. If there is sufficient evidence of guilt, the court can find the defendant guilty without the defendant having been given an opportunity to present a defense. Pretty crazy, right?

These new policies are frowned upon by the defense bar. One can expect appeals to the higher courts. Until then, a person cited for a traffic matter should be careful. It is a new world.  

Wednesday, April 22, 2015

"Negligence Per Se" In a Motor Vehicle Accident

The grumpy attorney yelled objection loud enough for people at the back of the courtroom. "A presumption against my client is unwarranted...negligence per se was never discussed before trial!" The judge weighed the objection with a slight tilt of the neck. "Objection overruled. The accident report notates a vehicle code violation. The defendant will be presumed to have been negligent. Of course counselor, you may rebut that presumption."

Clients will often reference legal shows or movies. Most scenes do not depict the reality of a legal case. Prior to a trial, both sides get an understanding of what is going to be admitted into evidence. There are rarely the surprise, or "gotcha," moments.

However, shows and movies reflect true legal doctrines. The hypothetical interaction at the beginning of the blog post between attorney and judge highlights the doctrine: negligence per se. It is a presumption that can help plaintiffs in personal injury accident matters.

What is a presumption? Before one can answer that question, it is important to discuss burdens of proof. In a civil case, the plaintiff has the burden of proving his or her case. If the burden is not met, the plaintiff will lose and the defendant will win. In a civil case, the burden is proof by a preponderance of the evidence (opposed to the more difficult proof beyond a reasonable doubt in a criminal case).

Now, let's discuss presumptions. A presumption is a burden shift. It allows parties to shift the burden of proof, so it gives them a strategical advantage. One such presumption under California law is "negligence per se."

Evidence Code section 669 codifies this common law presumption. It states, in part:

"The failure of a person to exercise due care is presumed if: (1) He violated a statute, ordinance, or regulation of a public entity; (2) The violation proximately caused death or injury to person or property; (3) The death or injury resulted from an occurrence of the nature which the statute, ordinance, or regulation was designed to prevent; and (4) The person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted."

When a defendant has violated a statute, say a Vehicle Code section, a presumption can be raised so that the burden is now on the defendant to rebut the presumption, i.e. that the violation was excused. The jury must presume that the defendant is negligent and liable for damages (if causation and damages exist).

Applying the doctrine in a personal injury case is not too difficult. Imagine that a plaintiff is rear ended while driving on the highway. A police report is drafted and the defendant driver who rear ended the plaintiff was cited for speeding, using a cell phone, and making an unsafe lane change. Defendant driver is convicted of all charges. Because the law prohibits speeding, cell phone use, and unsafe lane changes, it is likely that the plaintiff will be able to request a negligence per se presumption at trial. The purpose of those laws are to prevent reckless driving, and promote the safety of other drivers. The elements necessary for an instruction are present.

A case cannot be won simply with a presumption. But, a negligence per se presumption can definitely help. The jury returns after deliberation. The judge waits for them to all sit. He then asks, "Have you reached a decision?" One of the jurors stands up. "We have your honor."

Thursday, April 2, 2015

The Effects of AB 16: Changes to Domestic Violence Charge PC 273.5

Last year, the California legislature amended Penal Code section 273.5, corporal injury on a spouse. The new changes expanded the definition of whom can be classified as a victim. Now included under the statute: former fiances and fiancees, current and former dating partners, mother or father of the defendant's child.

The changes have widened the scope of who can be accused of committing an act of domestic violence. The authors of the bill projected that it could increase convictions under the law by 10%. It is too early to tell, however, if there have been more criminal filings as a result of the change. Nevertheless, a domestic violence charge remains a serious crime.

Treating domestic violence differently than other violent crimes has been entrenched in California law since 1945. There is data, and tragic anecdotal stories, showing that victims of domestic violence can experience mental trauma for years, if not indefinitely unto death. Thus, there is a strong public interest in treating domestic violence crimes differently.

All people accused of committing a PC 273.5 act of domestic violence are not guilty. There have been cases of false accusations or self-defense.

To be convicted under the law, the People have to prove beyond a reasonable doubt that the defendant:
(1) willfully inflicted a physical injury on an intimate partner; and
(2) as a result, the act caused the victim to experience a traumatic condition.

We already discussed how the term "intimate partner" was expanded by AB 16. A "traumatic condition" is a visible injury. If both elements can be proven, an accused can face serious penalties.

PC 273.5 is a "wobbler," offense, meaning that it can be charged as a misdemeanor or felony. If a defendant is convicted of the misdemeanor, he or she faces a maximum of one-year (1) in jail, and a fine of $6,000. If a defendant is convicted of the felony, he or she faces a maximum four-year (4) prison sentence.

There also could be consequences related to a state license or a person's immigration status. One cannot forget that it also carries a social stigma. People accused of committing an act of domestic violence should consult with a criminal defense attorney. Changes in the law, possible defenses, and analysis of a particular case can be discussed.