San Francisco Injury Lawyer Blog

Last week, we wrote about civil claims for recreational and sports injuries in California, including injuries arising during everything from extreme sports to recreational youth teams.  Today, we focus on the two most common defenses in these cases and how our San Francisco/Oakland recreational injury lawyer overcomes them.  Specifically, we look at waivers and the doctrine of assumption of risk in the context of sports injuries and other recreational injury cases.

Express Waivers: They Can Be Overcome

Express waivers are often Defendants’ Exhibit One in recreational injury cases.  Waivers take many forms, including agreements signed by parents enrolling children in youth sports, releases signed by participants in grueling obstacle course races, and even waivers printed on the back of ski lift tickets.  Many people do not even pursue an injury claim because they assume a waiver precludes all legal claim.  This is a mistake.

While waivers are generally enforceable in California, there are exceptions including:

  • Not meeting legal requirements – In order to be valid, waivers must be clear and concise. Waivers only apply to named parties, for example, a parent might sue a city for an injury on a public playing field even if the sporting organization was released from liability by a valid express waiver.  Ambiguities are read in favor of the injured party, including where the waiver is too narrow or too broad.
  • Fraud/Misrepresentation – A waiver may be invalidated if the waiver or other documents authored by the organization contains misleading or outright false statements intended to persuade someone to participate (e.g., “the safest adrenaline rush you’ll ever have”). Likewise, waivers can be invalid if they fail to disclose all relevant facts/risks.
  • Public policy – Some waivers are void based on public policy. For example, in 2003 Metropolitan News-Enterprise reported that, per a California appeals court, public policy dictates that child care providers cannot rely on waivers to avoid the duty of ordinary care.
  • Gross negligence – As the San Francisco Chronicle reported in 2007, waivers cannot insulate defendants from claims of gross negligence. Quoting the majority opinion, the article says: “California law…‘precludes enforcement of an agreement that would remove an obligation to adhere to even a minimal standard of care.’” Gross negligence claims typically require an extreme departure from normal levels of care.
  • Product liability – Likewise, waivers are not a bar to a defective product claim in California.

For an interesting discussion of waivers and extreme obstacle races, see the ABA Journal’s 2014 article on the topic.  Ultimately, the enforceability of a waiver is a very fact-specific question and seriously injured individuals (or their loved ones) should talk with an experienced sports injury lawyer about whether an express waiver can be overcome.

Assumption of the Risk: The Limits of Implied Consent

After waivers, the doctrine defendants are most likely to cite in sports injury cases (extreme or everyday) is assumption of the risk.  This concept is similar to waivers but waivers are express agreements whereas assumption involves implied consent.  Essentially, per the assumption doctrine, when someone knew and understood the potential/inherent risks but chose to participate anyway, the defendant is not liable for failing to use ordinary care to prevent injuries associated with those inherent risks.

This doctrine is built into Civil Jury Imudracenstruction 408  which lists the following as one requirement for claims against a coach, teacher, or other instructor: “[The defendant] intended to cause [the plaintiff’s] injury or acted recklessly in that [defendant’s] conduct was entirely outside the range of ordinary activity involved in teaching or coaching [the activity].”  The assumption doctrine exists to prevent discouraging active participation in recreational activities and applies to other reasonably anticipated defendants.

Like express waivers, the assumption doctrine does not apply in cases of gross negligence or when the defendant unreasonably increased the danger.  It is a very case specific inquiry that looks at the nature of the activity and the role of the defendant. In the world of obstacle races, the defense might fail because courses often include hidden dangers.  The ABA Journal quotes David Horton, a California law professor:

“The whole point of an obstacle course race is to in fact come up with all these inherent dangers and risks. That makes it very difficult to fit within our existing paradigms. We tend to think of risks as being an unfortunate byproduct of things like traditional sports, but for something like [an obstacle course] the risk is the purpose of the event.”

Sometimes, a secondary assumption analysis is used to apportion damages.  This analysis is similar to the doctrine of comparative negligence.  For example, a court may award 60% of the total damages where the plaintiff is deemed 40% responsible for her own injuries.

The Lesson: Talk to a California Sports Injury Lawyer Before Assuming Your Claim is Barred

In sum, the most common defenses to sports injury claims are the closely related concepts of express waiver and implied assumption of the risk.  While these doctrines bar some claims, they can be overcome in appropriate cases.  For anyone who has been seriously injured during a recreational activity, it is worth having the right attorney look at your case.  Attorney Greg Brod is an experienced Oakland sports injury attorney in Oakland with additional offices in San Francisco and Santa Rosa.  Since most cases are handled on a contingency fee basis, you only pay us if you recover money.  An initial consultation is always free.  Don’t let the people responsible for your injury (or their lawyers) intimidate you.  Waivers can be overcome as can other defenses.  Call now: (800) 427-7020.

See Related Blog Posts:

From the Playing Fields to Extreme Sports, Part One: Recreational Injury Claims

Northern California Football Injury Lawyer Looks at Growing Evidence of Football-Related Brain Injury


The days of “PB&J” as a school lunch staple are gone in many areas.  Policies limiting the presence of peanuts are just one result of a startling rise in food allergies.  For many sufferers, food allergies go far beyond a tingly mouth or upset stomach.  Food allergies can be deadly making accurate labeling and attention to detail throughout the food industry incredibly important.  Food allergy litigation is a developing field and our San Francisco food allergy lawyer is prepared to advocate for people and families who have faced a serious allergic reaction because of inaccurate labeling, careless food preparation, or other negligent food handling and/or preparation practices.

Massive Cheerios Recall Due to Presence of Allergen

This week, perhaps the biggest name in cereal went from the shelves to the headlines as General Mills recalled 1.8 million boxes of regular and Honey Nut Cheerios.  NBC Bay Area reports that the recalled cereal, which was produced in July at a Lodi, California facility, is labelled “gluten-free” but contains wheat.  General Mills says wheat flour, which contains gluten, was inadvertently used instead of gluten-free oat flour.  Consuming gluten can cause an allergic reaction or discomfort for people with celiac disease, wheat allergies, or other health issues.  General Mills is pulling affected cereals from stores and warehouses.  Customers who purchased the affected cereals and are unable to eat wheat can contact General Mills for a replacement or a refund.

Food Allergies on the Rise

An allergy is a hypersensitivity disorder where the immune system reacts to a substance normally considered harmless.  Food allergies are more serious than milder (and more common) food intolerances.  According to the Centers for Disease Control, food allergies among those aged 17 years and younger increased from 3.4% in 1997-1999 to 5.1% in 2009-2011.  Notably, there was not a corresponding significant change in the prevalence of general respiratory allergies.  A report from Massachusetts General Hospital notes that, while attention has focused on children, some 9 million adults (4% of the U.S. population) suffer from food allergies.

Early detection and intervention is critical since some food allergies can cause life-threatening anaphylaxis.  The American Academy of Allergy, Asthma & Immunology states that 38.7% of children with food allergies have experienced a severe allergic reaction to a food with peanuts being the most common allergen followed by milk and shellfish.

Food Allergies and the Law: Liability for Allergen Exposure

In 2004, Congress passed the Food Allergen Labeling and Consumer Protection Act.  The law requires food labels to disclose the presence of eight common allergens: milk, eggs, fish, shellfish, peanuts, tree nuts, wheat, and soy.  The Act also calls for a study aimed at developing allergen rules for food service establishments.

  • Labelled Foods

In general, liability for exposure to a food allergen can be divided into two categories based on whether the potential defendant is a food manufacturer or a food service establishment (e.g., restaurant, school, nursing home, etc.).  Suits against food manufacturers are often based on a failure to warn claim.  Civil Jury Instruction 1206 provides that to establish such a claim a plaintiff must show all of the following (quoting):

“1. That [name of defendant] [manufactured/distributed/sold] the [product];

  1. That a substantial number of people are allergic to an ingredient in the [product];
  2. That the danger of the ingredient is not generally known, or, if known, the ingredient is one that a consumer would not reasonably expect to find in the [product];
  3. That [name of defendant] knew or, by the use of scientific knowledge available at the time, should have known of the ingredient’s danger and presence;
  4. That [name of defendant] failed to provide sufficient warnings concerning the ingredient’s danger or presence;
  5. That [name of plaintiff] was harmed; and
  6. That the lack of sufficient warnings was a substantial factor in causing [name of plaintiff]’s harm.”

Additional claims may exist based on negligence or other legal theories, but the foregoing claim is particularly important since it is a strict liability offense making it much easier to prove.

  • Food Service Establishments

The second category of cases involves exposure in a restaurant or other food service establishment.  In order to be liable for an allergic reaction a restaurant must have provided misleading/inaccurate information or have notice of a patron’s allergy.  For example, liability might exist if exposure occurs despite: 1) A menu (inaccurately) indicating a food is free of certain ingredients; 2) A restaurant undertakes food preparation despite specific notice of a customer’s allergy; or 3) A nursing home knows a patient has food allergies.

  • Proving the Claim

If a reaction occurs, it is advisable to retain a sample of the food.  This can make proving liability much easier.  In addition to liability, the plaintiff will need to show damages.  As in other injury suits, this can include medical bills, lost income, and compensation for pain and suffering.  In the case of a fatal reaction, a wrongful death claim may exist in place of a personal injury action.

A Law Firm for Allergen Exposure Cases

If you or a loved one suffered an allergy due to the negligence of anyone in the food industry, call our Northern California food allergy law firm to arrange a free consultation.  This is an evolving field of law made ever-more important by the growing prevalence of food allergies.  Companies and individuals in the food industry must take care to consider food allergy concerns – it could be a matter of life and death.

See Related Blog Posts:

Sonoma Food Poisoning Lawyer on Food Safety Law and Allegations of Arsenic in Wine

Long-Term Health Dangers of Pesticides Felt from Farm to Homes

San Francisco-Oakland Injury Attorney Comments on Sever Reactions to Over the Counter Drugs



Wheelchair users, whether using an assistive device for a short period or long-term, can face numerous obstacles in daily living.  Access has certainly improved in recent decades, but it remains a real problem even in a progressive state like California.  Even more important, however, is the issue of safety.  Car accidents involving wheelchairs are a real threat and we must hold drivers responsible for endangering wheelchair users just as we would drivers who endanger pedestrians on foot.  As a San Francisco wheelchair users’ law firm, we understand how much these cases mean for the individual involved, for the greater community of individuals with disabilities, and for everyone who recognizes that all of us are unique and we all deserve to be able to travel safely regardless of our physical characteristics.

Wheelchair User Critically Injured in Hit-and-Run

On Saturday, according to the San Francisco Chronicle, a traffic accident critically injured a 72-year-old man who was using a wheelchair at the time of the crash.  Witnesses called police to the intersection of Alhambra Avenue and Virginia Hills Drive in Martinez around 4:15 PM Saturday reporting that a driver had hit a pedestrian and then fled the scene.  Upon arrival, officers found the victim lying in the roadway.  The injured man was taken to a Walnut Creek hospital and reportedly in critical but stable condition as of Saturday night.  Police located the woman they believe was the driver a short distance from the scene and placed her under arrest.

(Under-Inclusive?) Statistics on Wheelchair Users and Traffic Accidents

In a Traffic Safety Fact Sheet published this past summer, the National Highway TraffHow do you get around: car, train, bicycle, plane, feet? Make a photo that represents your mode of transportation today.ic Safety Administration says 28 people were struck by vehicles while seated in wheelchairs in 2013.  This number is consistent with the average number of non-occupant wheelchair users killed in motor vehicle accidents from 2007 to 2013.  Although a small percentage of the total number of people killed in car accidents, this number may be under-inclusive (a quick Google search brings up numerous news stories involving wheelchair users hit by cars), does not account for non-fatal injuries, and does not tell us how much more dangerous the roads are for wheelchair users than for other pedestrians.  Another frightening statistic in the report, California saw 7 of the 28 reported fatalities of wheelchair users in 2013.

Factors In Traffic Accidents Involving Wheelchair Users

Several factors contribute to motor vehicle accidents involving individuals using wheelchairs.  ITARDA, a Japanese agency that gathers and analyzes traffic accident data, released a report in 2004 that examines accidents involving electric wheelchair users, a growing subset of all wheelchair users. The report notes that 28% of traffic accidents that involved an electric wheelchair occurred at crosswalks and some 58% occurred at intersections.

ITARDA identifies three features of traffic accidents involving individuals using electric wheelchairs: 1) Wheelchairs place an average-sized rider at a lower height than a bicycle rider, making it difficult for drivers to see wheelchairs; 2)  Electric wheelchairs cannot speed up quickly, making it difficult or impossible for a user for observes a potential threat to get out of the way; 2) Although wheelchairs in Japan are treated as pedestrians (as they are in California), users may leave the sidewalk and travel on the road if the sidewalk is too narrow or contains obstacles.  This third concern is also addressed by a report from disability advocate resource Ragged Edge Online that focuses on the danger wheelchair users face when they are forced to travel in the street because the sidewalks lack the necessary curb cuts to allow them to access the pedestrian route.  The author states: “Wheelchair users nationwide risk their lives daily by being forced into the street because their communities, despite the Americans with Disabilities Act, have not bothered to install curb cuts or maintain sidewalks.”

A Brief Discussion of Damages

A quick note about damages – California, like most states, recognizes the “eggshell plaintiff” rule.  In essence, this rule means a defendant takes the victim as he finds him.  This means that someone who caused an accident is responsible for the victim’s injuries even if the plaintiff’s health conditions meant he or she suffered a more serious injury than a typical person would incur under similar circumstances.  This rule, summarized in California Civil Jury Instruction 3928, can be very important for people who use a wheelchair because of conditions that make them susceptible to injury.

A Lawyer for Injured Wheelchairs Users

Every accident is unique and focusing on the details is essential to understanding what happened and who is responsible.  Whether the problem is an inattentive driver or a community’s dangerous roads, our Northern California wheelchair accident law firm helps wheelchair users and their families following traffic accidents.  We can also help wheelchair accidents are caused by product defects such as a faulty power system in an electric wheelchair, a defective lift, or inadequate systems to secure a wheelchair in a moving vehicle.  Call for a personal consultation.

See Related Blog Posts:

Disabled Person Seriously Injured in San Francisco Intersection

The Daunting Task of Making San Francisco Muni Safer and Fiscally Fit

(Image by Roger H. Goun)

Mortgage lending may not be in the spotlight in 2015 to the same degree it was a few years ago, but it remains an important element of our economy and mortgage fraud was partially responsible for the recession that rocked the globe in the first decade of the millennium.  Although many associate the False Claims Act (“FCA” or “the Act”) with health care fraud, its reach is much broader and includes certain forms of mortgage fraud.   When banks grant federally insured/guaranteed mortgages that do not meet program requirements and the government has to pay out money due to a default, an FCA suit can be appropriate.  As with other FCA claims, private citizens can play an important role in these actions by sharing information about suspected fraud and partnering with our mortgage fraud whistleblower’s lawyer to hold financial institutions responsible for the consequences of granting risky loans.

$212.5 Million Settlement in Mortgage Fraud Case

On June 1, the Justice Department (“DOJ”) issued a press release detailing a recent False Claims Act settlement in the mortgage fraud arena.  As background, the press release explains that First Tennessee Bank (along with its affiliates and successors) participated in the FHA Direct Endorsement Lender (“DEL”) program from January 2006 through October 2008.  Pursuant to the DEL program, neither the Federal Housing Administration (“FHA”) mortgagenor the Department of Housing and Urban Development (“HUD”) reviewed program loans, instead relying on First Tennessee to follow program rules and self-report any deficiencies.

According to admissions made by the bank as part of the settlement, First Tennessee repeatedly failed to comply with FHA requirements, certifying loans that did not meet HUD requirements.  The bank further admitted that the quality of its underwriting declined as the quantity of FHA-insured mortgage loans it issued increased.  By early 2008, the bank, again by its admissions, became aware that a significant number of its FHA loans failed to meet eligibility requirements.  Still, despite a legal obligation, the bank did not self-report.  The FHA suffered large losses when it had to pay insurance claims on hundreds of deficient mortgages.

First Tennessee Bank agreed to pay $212.5 million to resolve the FCA allegations.  In the DOJ press release, Acting U.S. Attorney John A. Horn explains: “First Tennessee admitted failings that resulted in poor quality FHA loans….While First Tennessee profited from these loans, taxpayers incurred substantial losses when the loans defaulted.”  Likewise, Principal Deputy Assistant Attorney General Benjamin C. Mizer states: ““First Tennessee’s reckless underwriting has resulted in significant losses of federal funds and was precisely the type of conduct that caused the financial crisis and housing market downturn…[The DOJ] will continue to hold accountable lenders who put profits before both their legal obligations and their customers, and restore wrongfully claimed funds to FHA and the treasury.”

A Widespread, Costly Problem

First Tennessee is far from the only financial institution that has faced FCA charges tied to federally insured mortgage loans.  In fact, the mortgage and financial services arena accounted for the majority of funds recovered pursuant to the FCA in 2014.  According to the DOJ, $3.1 billion of the $5.69 billion the federal government recovered via FCA settlements and judgments in 2014 came from banks and other financial institutions accused of wrongdoing tied to federally insured mortgages and loans.  Overall, the total recovered from the financial industry pursuant to FCA claims between January 2009 and December 2014 is $4.65 billion.  Notable 2014 cases included a $614 million settlement by JPMorgan Chase and a $1.8 billion settlement by Bank of America, both involving the underwriting and origination of allegedly non-compliant federally insured mortgages.

The Role of Whistleblowers in Fighting Mortgage Fraud

There might have been a downturn regardless, but the widespread granting of risky, non-compliant mortgages was partially responsible for the occurrence and extent of the so-called “Great Recession” that is still being felt across the nation.  Banks and financial institutions should be held accountable for their role in the economic crisis.  FCA mortgage fraud suits can restore wrongfully diverted money to government programs that desperately need it while also sending a message to the industry that such actions will not be tolerated.

Whistleblowers are critical to the success of these anti-fraud efforts.  If you have specific knowledge about fraudulent actions (or inaction such as the failure to self-report) relating to federally insured mortgages, including FHA mortgage insurance, you can help.  Call our mortgage fraud law firm to learn how you can help.  Rewards are available for private citizens whose information leads to a recovery of government money.

See Related Blog Posts:

The Many Uses of the False Claims Act: Beyond Medicare Fraud and Military Contracts

Record Recoveries in False Claims Act Suits in 2014, Whistleblowers’ Firm Looks to Continue Trend in 2015

(Image by Flickr User nikcname)


Yes, this is a post about extreme sports and if you’ve arrived at our blog looking for information about extreme sports injuries and California law, you’ll find that.  However, this post is also relevant to those who prefer simpler thrills.  The California injury law principles we discuss in today’s blog entry apply when a person is injured in any type of recreational activity from cliff-diving to Pee-Wee soccer.  Developed over many decades, these principles even apply to newly popular activities like the fast-growing arena of adult obstacle course races.  In this first of two parts, our San Francisco sports injury law firm looks at civil claims that can arise as a result of recreational injuries.  Next week, we will continue with a look at some of the most common defenses to these claims and how those defenses can be overcome.

Famed Extreme Athlete Dies in Skydiving Accident

A stunt display planned as part of the kickoff to a golf tournament in Squaw Valley took a tragic turn on Monday.  The Press Democrat reports that while two other skydivers landed safely on the greens 39-year-old extreme athlete Erik Roner fell hard and crash landed into a tree.  Roner’s parachute became tangled, leaving him dangling some 25 to 30 feet above ground.  People on the scene scrambled to help, even attempting to form a human ladder to reach Roner, but he passed away before they could succeed.  According to a fellow athlete who spoke with the paper, there was no protocol for attempting the type of rescue needed.  Given the nature of the accident, the Federal Aviation Administration is conducting an investigation.  Roner was a famed extreme athlete known for BASE jumping and his MTV appearances in addition to his skydiving prowess.

The Evolving World of Extreme Sportsmudrace2

While many think of extreme sports as a new phenomenon, they have been around in one form or another for centuries.  An article on extreme sports in the online version of the American Bar Association Journal cites gladiator matches in Ancient Rome as the historical equivalent of today’s high-risk sports.  Some sports once deemed extreme have become more mainstream, for example, marathon running.  At the same time as certain extreme sports are exploding, the ABA Journal article notes, there has also been a rise in “functional fitness” activities, such as Cross-Fit, and activities that bridge the two arenas like the increasingly-popular field of obstacle courses.

Recreational Injury Claims

Whether a person is injured in an extreme sport or a more “everyday” recreational activity, the same legal principles come into play.  Some of the claims most likely to arise in sports injury litigation include:

  • Negligence – The core of most personal injury litigation, negligence is the failure to exercise the reasonable level of care that an ordinary person would use under similar circumstances. A negligence claim might arise from allowing too many racers to participate in order to maximize profits despite the course being insufficient to handle the numbers.
  • Gross Negligence – This is, in essence, a more extreme form of negligence involving a major departure from reasonable care. In the extreme sports world, gross negligence might apply if the defendant purposefully made an activity more dangerous like hiding unannounced obstacles in a mud pit on a race course.
  • Product Liability – Product liability claims apply when sporting equipment is unsafe, such as a parachute that does not operate properly. Product defect claims are strict liability, meaning intent is irrelevant, and they cannot be waived.

Looking Ahead: Defenses

Next week, we will look at some defenses that are often asserted in recreational injury cases, including the doctrine of assumption of risk and the use of express waivers.  These defenses are powerful, but they can be defeated.

A Northern California Recreational Injury Lawyer

From acting as a San Francisco extreme sports injury lawyer to serving as a Northern California obstacle course injury lawyer in Sonoma and helping families as an Oakland children’s sports injury attorney, Gregory Brod understands California law and he has the expertise to help the wrongfully injured and/or their families recover the compensation they deserve.  Call or contact us using the form to the left to arrange a no-cost consultation.

See Related Blog Posts:

Northern California Football Injury Lawyer Looks at Growing Evidence of Football-Related Brain Injury

San Francisco Sports and Recreation Attorney Looks at Wave of Hang-Gliding Deaths in 2015

(photo by Kevin Cortopassi of Tough Mudder race obstacle)

bedbugbitesJust the name can make your skin crawl, but clients tell us the reality is far worse than they ever could have imagined.  Bed bugs fall in and out of the headlines, but they remain a very real problem impacting Californians.  The pests do not discriminate, attacking people of all ages, races, classes, and creeds.  In fact, as a recent news report illustrates, they aren’t even confined to beds!  As a bed bug law firm in San Francisco, Oakland, and Santa Rosa, The Brod Law Firm helps people who are afflicted with these pests because of someone else’s neglect, such as a tenant coping with repeated infestations because a landlord fails to act responsibly, ignoring the problem entirely or taking ineffective, limited action rather than the swift intervention needed to eradicate the bugs for good.

Bed Bugs Cause Temporary Closure of Palo Alto Library

Last week, per NBC Bay Area, Palo Alto temporarily shuttered one of its public libraries because of a problem more often associated with housing than libraries – bed bugs.  In addition to closing the Mitchell Park Library to treat the pests after they were spotted on two chairs, the city sent bed bug-sniffing dogs to other branches of the library system.  As NBC noted, libraries are actually not unusual spot for bed bugs to hide.  The pests hitch a ride on a borrowed book, moving from one home to the library and potentially the home of another patron.  Increased travel, pesticide resistance, and the use of ineffective pest control practices have all been implicated in the recent spike in infestations.  Contra Costa Health Services denied a rumor blaming the homeless for the library infestation, noting there is no link between cleanliness and the pests although clutter does allow an infestation to grow.

Bed Bugs Generally

According to Santa Clara County Vector Control District, one of a dozen districts in Greater San Francisco focused on pest control, bed bugs are tiny insects that evolve from eggs to nymphs the size of poppy seeds to adult bugs approximately one-quarter inch long with reddish brown flat bodies.  Bed bugs cannot fly, instead crawling and often being carried by a host from one location to another.  While they do not transmit disease, bed bugs feed on blood and their bites can cause itchy red spots or larger welts in sensitive individuals.  Bed bug bites can become infected if scratched.

Each year, Orkin ranks U.S. cities based on the number of bed bug reports.  While Chicago tops the 2014 Bed Bug Cities List for the third year in a row, the San Francisco-Oakland-San Jose region jumped three spaces (in the “wrong” direction) to number 16 and the Sacramento area made a double-digit jump to 27 from 41 in 2013.

Bed Bugs and California Law

California Civil Code section 1941 requires landlords to maintain all rental units in a habitable fashion, an obligation that includes ensuring units are free of vermin.  In general, California law holds landlords responsible for the bedbugbites2costs of bed bug eradication.  Effective bed bug treatment in multi-unit buildings often requires inspecting and treating units adjacent to those known to be infected, as noted in a memo from the Environmental Protection Agency titled What Landlords Need to Know about Bed Bugs, and failing to do so can lead to re-infestation.  Tenants should be prepared to cooperate with eradication efforts and maintain an uncluttered home to help limit the places where bugs can hide.  We are watching a bill pending in the California legislature that would further spell out the duties of landlords and tenants.

In some cases, human actions can prolong, exacerbate, or even initiate a bed bug infestation.  If you are in Northern California and your landlord is not responding effectively to your complaints about bed bugs, call our San Francisco tenants’ bed bug lawyer.  We are prepared to file claims against both private and “public” landlords (i.e., housing authorities, etc.) as well as any other parties responsible for an infestation.

See Related Blog Posts:

The Mental and Emotional Toll of Bed Bugs

California Bedbug Lawsuits: Damages, Compensation, and Class Actions

(Image of back by Richard Thomas, Image of hand by snowflakegirl)

Vacation – just the word alone can bring a smile to your face and even release a tiny bit of that tension we all seem to carry in our shoulders and neck these days.  We love our work at The Brod Law Firm, but there’s still something lovely about the moment we turn on our “away messages” (of course, we always have coverage plans in place so our client service is seamless and new clients can always reach someone who can help)!  Still, as illustrated by last week’s tragedy in Seattle, vacation is not without its dangers.  Vacation accidents can be a matter of time and place, a “regular” accident that happens to occur during a trip, or they can be more directly tied to the trip itself, such as an accident involving tourist-oriented activities or other recreational endeavors.  When visitors to the Bay Area, including tourists injured in Sonoma as well as San Francisco or Oakland, are hurt due to the actions or inactions of another, our San Francisco vacation accident law firm

Duck Boat Accident Kills Four Student-Tourists in Seattle

On Thursday September 24, a duck boat tour in Seattle ended tragically leaving four dead and dozens injured.  According to the San Francisco Chronicle, the duck boat was carrying a group from North Seattle College across the Aurora Bridge when the amphibious vehicle suddenly swerved and crashed into a charter bus. The crash killed four international students.  A woman from Fremont who suffered a broken collarbone was among the many injured in the collision.

(Update: After this article was written, a fifth person died from injuries sustained in the accident.  As of this update, NBC reported that five others remained in intensive care.)

Critics Call for Changes or Outright Ban Citing History of Duck Boat Crashes

The National Transportation Safety Board (“NTSB”) has begun investigating last week’s crash, but the Chronicle notes that many were already calling changes to the use of the amphibious crafts prior to the most recent tragedy.  While some are asking for better oversight, others are calling a ban on using the military-style vehicles as tourist conveyances.  Those opponents say the vehicles were originally built for the battlefield, specifically transporting troops from water to land, not narrow and crowded city streets.  Other safety advocates have focused on the fact that duckboatmany duck boat operators are trying to navigate the roads and the waters while also acting as an energetic, interactive tour guide (Note: Earlier this year, reported on a new ordinance requiring most San Francisco tour bus companies use a second employee to narrate while the driver focuses on driving.)

Critics of both sort point to the difficult safety record and the Chronicle article mentions several serious duck boat accidents.  In 2010, two students died near Philadelphia after a tugboat pulling a barge crashed into a stalled duck boat, ultimately sinking the tourist-packed vessel.  Last week wasn’t Seattle’s first duck boat accident either.  There, in 2011, a duck boat ran into and dragged a motorcycle rider after coming up behind him at a light.  Looking back further, the NTSB blamed inadequate maintenance for the sinking of a duck boat in Alabama during 1999, an incident that claimed thirteen lives.

San Francisco Lawyer for Injured Tourists and Visitors

We love our region and love sharing it.  As a San Francisco tourist injury lawyer, Attorney Greg Brod is concerned about the safety of visitors to the Bay Area whether they are riding a duck boat or enjoying anything else our city has to offer.  Vacation injuries take many forms including rental car accidents, serious cases of food poisoning, and injuries stemming from defective rented sporting equipment.

Although there are exceptions, usually a plaintiff files an injury lawsuit where the injury occurred.  Our team understands that this can be difficult for the countless people hurt while visiting our region for business and recreation each year, especially after a serious injury or loss.  We work hard to limit the number of times you have to return to the area to pursue your legal rights.  In some cases, we can even resolve the entire matter without the need for an out-of-town client to return at all (or at least not for such an unenjoyable reason as pursuing an injury claim!).  Call to arrange an in-person or telephonic consultation.

See Related Blog Posts:

Cable Car Accidents: The Potential Danger on a San Francisco Icon

Tour Bus Accidents & Liability Under California Law

(Image by Mark Hogan; pictured example of duck boat was not involved in crash)

The relationship between health care and money is the crux of some of the biggest policy debates of our time.  Still, while much is debated, there are also many principles that most Americans agree should hold true.  One such maxim – Medical decisions should be based on the best interests of patients, not providers own financial well-being.  This precept is reflected in several laws including the Anti-Kickback Statute and the Stark Act and enforcing these rules is one of the goals of our work as a whistleblowers’ law firm for health care fraud issues.

$115 Million Settlement Resolves Case Alleging Health System’s Bonuses Violated Law

Just last week, the Justice Department (“DOJ”) announced a major settlement in a health care fraud case involving allegations of improper financial relationships between health care providers and their referral sources.  The lawsuit claimed that Adventist Health Systems, a healthcare organization with facilities in 10 states, billed for the services of employed providers who were paid bonuses that, contrary to law, were based on a formula that considered the value of the referrals to the hospital system.  More specifically, the suit alleged that doctors received monetary bonuses tied to the number of tests and procedures they ordered.  Adventist agreed to pay $115 million to settle these and other fraud allegations, but did not admit to any wrongdoing.

The Principle: Ensuring Objectivity and Impartial Medical Judgment

medicalcostAnnouncing the Adventist settlement, Principal Deputy Assistant Attorney General Benjamin C. Mizer, head of the Justice Department’s Civil Division stated: “Unlawful financial arrangements between heath care providers and their referral sources raise concerns about physician independence and objectivity.  Patients are entitled to be sure that the care they receive is based on their actual medical needs rather than the financial interests of their physician.”  Special Agent in Charge Derrick L. Jackson with the Department of Health and Human Services (“HHS”) echoed this sentiment, saying that financial arrangements like those alleged “undermine the physicians’ impartial medical judgment at the expense of patients and taxpayers.”

Two Federal Laws Addressing Referals and Provider Compensation

These basic principles form the basis of multiple federal and state laws.  Violations of these underlying laws can give rise to violations of the False Claims Act.  In a guide aimed at educating new doctors, HHS discusses some of the major federal health care fraud laws including the Anti-Kickback Statute (“AKS”) and the Physician Self-Referral Law (known as “the Stark Act”).

As the guide explains, AKS makes it a crime to give anything of value to encourage or reward the referral of patients or other business involving services covered by federal health programs.  Importantly, while often summarized as making it illegal to pay for referrals, AKS goes beyond just giving cash and could include providing fancy meals or free services.  AKS applies to both the referring party and the recipient and, as HHS explains, the issue of intent is key to liability.

Stark prohibits medical providers from referring patients to have certain specified Medicare- or Medicaid-covered services performed by an entity in which the provider or an immediate family member has a financial stake.  There are specific exceptions, but unless one applies Stark would prohibit a doctor referring patients to have x-rays performed at an imaging center that the provider has invested in or from which she receives compensation.  It would also prohibit the center from billing for such services.  Importantly, Stark is strict liability and a violation can exist regardless of intent.

Protecting Our Nation’s Health Care System

Health care fraud is a financial crime.  It is also much more.  Health care fraud endangers patients by putting money above the patient’s best interest.  In all areas of health care fraud, including violations of the rules on referrals and compensation, whistleblowers are key to identifying fraud and fighting back.  Private individuals can bring claims on the government’s behalf and they are entitled to a significant reward if their information lead to a financial recovery.

If you are aware of Medicare/Medicaid fraud, you can make a difference.  Your information can help us recover wrongfully diverted money and can also help ensure our health care system focuses on the best interests of the patient.  Call our health care fraud attorney’s whistleblower hotline at (800) 427-7020 to learn more.

See Related Blog Posts:

Why We Fight: A Reminder of the Dangers Behind Fraudulent Referrals in the Health Care Arena

S.F. Qui Tam Lawyer Revisits Key Laws Supporting Battle Against Medicare Fraud



pedalsOften the most important parts of any task are also the most basic.  Drivers learn the difference between the brake and the accelerator before they even put the car in drive.  While this is a fundamental matter for any driver, pedal confusion accidents happen with alarming frequency.  Avoiding pedal errors is critical.  When accidents do happen, our San Francisco pedal confusion injury lawyer is ready to help the injured.  It is important to remember that no matter how sympathetic the defendant may be, and those involved in accidents are often good people who made one unintended mistake, those injured because of another’s actions deserve compensation.

One Dead, Five Injured Following Livermore Pedal Confusion Accident  

A frightening scene unfurled at a Livermore gym early Tuesday.  The San Francisco Chronicle reports that around 6:30 A.M. an 80-year-old driver confused the accelerator and brake pedals sending her car crashing into the lobby of LifeStyleRx health club at 1119 E. Stanley Boulevard.  Livermore police told reporters that the female driver “experienced pedal confusion” while parking her Mercedes SUV.  The crash led to the death of 49-year-old Katheryn Baker, the chief financial officer of Lawrence Livermore National Laboratory, a government-owned technology company in the national security arena.  Five others were injured and taken to hospitals.  Police do not believe alcohol or drugs were factors in the accident.

Statistics on Pedal Error Accidents

According to a National Highway Traffic Safety Administration Safety Advisory released in May 2015, some 16,000 preventable crashes occur annually due to pedal error.  Pedal errors can involve a driver mistakenly pressing the accelerator when intending to brake, the driver’s foot slipping from the brake to the accelerator, or the driver simultaneously stepping on both pedals instead of solely on the brake.  These tend to be low-speed events, often occurring during parking but also at intersections and on highway off-ramps.  Drivers typically recognize the mistake quickly, but may still be unable to avoid a collision.

The 2015 advisory suggests pedal confusion is most common at either end of the age spectrum.  Drivers under age 20 and over age 65 experience pedal confusion more often than drivers in “middle” ranges. Although not discussed in the 2015 piece, a 2012 NHTSA report titled Pedal Application Errors (available for download) found females were heavily overrepresented in pedal misapplication accidents.  In that study, researchers found female drivers accounted for nearly two-thirds of pedal misapplication crashes despite the fact that women are implicated in fewer crashes than men overall.  Notably, the 2012 study contains a much lower estimate of the total number of pedal error crashes, 15 per month or 180 per year, but the authors caution that the number may be significantly under-inclusive due to reporting and archiving issues.

Preventing Pedal Error Crashes

In the 2015 advisory, the NHTSA provides five basic tips for preventing pedal error crashes.  Briefly, the agency suggests drivers:

  1. Be familiar with the vehicle and adjust the seat, mirrors, wheel, and (when possible) pedals before driving.
  2. Always aim to press the center of the brake pedal.
  3. Stay focused on driving, avoiding distractions until the vehicle is parked and turned off.
  4. Exercise caution, including proceeding slowly when entering/exiting parking spaces.
  5. Wear smart footwear, choosing flat-soled, lightweight shoes and avoiding high heels, flip-flops, or heavy boots.

Obtaining Compensation in Northern California Pedal Confusion Accidents

Prevention is always preferable, but people injured due to another driver’s pedal error deserve proper compensation.  In some of these cases, the injured party may be concerned about “going after” a sympathetic defendant such as an older individual who appears contrite and did not intend any harm.  The truth is that injuries are injuries; the costs are not lower and the pain is not lessened because the party who caused the injury is sympathetic.  Remember, it is usually the insurance company that actually pays any award to the injured person.  Additionally, personal injury cases serve to call attention to problems like pedal confusion, attention that is critical to prevention.

If you’ve been injured in or lost a loved one to a pedal confusion accident in Northern California, The Brod Law Firm can help.  Call to arrange a free consultation with our experienced car accident injury lawyer in Oakland, San Francisco, Santa Rosa, or at a location convenient for you.

See Related Blog Posts:

The Surprisingly Common Danger of Vehicles Crashing Into Buildings

Study Examines Factors Influencing Pedal Confusion Accidents

(Image by Ray Sawhill)

In many ways, injury law comes down to a question of cause and effect.  Our San Francisco motorcycle accident attorney and his support team work diligently to determine (and prove) what caused the accident, the question of fault, and what has and will happen as a result, the question of damages.  The “effect” inquiry looks at both today and tomorrow, an especially complex inquiry in the case of the serious injuries or loss of life that are far too common in motorcycle accidents.  That is, however, a question for another day.  Today, we discusses the “cause” inquiry, the question of what happened in the moments before the crash, looking at a recent tragedy in San Ramon and the leading research on the cause of motorcycle accidents.  Ultimately, the cause and effect inquiries may be complex but our team is well-equipped to uncover the truth in order to help injured riders and grieving loved ones recover compensation for their losses.

Multi-Part San Ramon Accident Leaves Motorcycle Rider Dead

A multi-vehicle accident led to the death of a motorcycle rider in San Ramon on Monday.  CBS San Francisco reports that the crash occurred around 4:40 A.M. on Highway 680 South just past Bollinger Canyon Road.  The incident began when a Honda rear-ended a big-rig truck and the impact caused the Honda to spin before coming to a halt in the middle of lane three.  A motorcycle then struck the disabled vehicle and the 39-year-old rider was ejected.  Moments later, another big-rig truck hit both the motorcycle and the rider before catching aflame.  The motorcycle rider was pronounced dead at the scene.  CBS’s article does not note the status of any of the other individuals involved in the complex accident.

An Overview of Motorcyclist Injury and Fatality StatisticsmotorcycleC

According to the most recent National Highway Traffic Safety Administration (“NHTSA”) Motorcycles Traffic Safety Facts sheet, 4,668 riders died and some 88,000 motorcyclists were injured in traffic accidents nationwide in 2013.  While motorcycles made up only 3% of vehicles registered in the U.S. in 2013, motorcyclist fatalities accounted for a disproportionately large share of all traffic deaths at 14%.  Rider injuries were a more commensurate 4% of all traffic crash injuries.  The true disproportionality of motorcyclists’ share of both traffic deaths and injuries is evident when one considers that motorcycles travel accounted for merely 0.7% of all vehicle miles in 2013.  Taking these statistics together reveals that for every mile travelled motorcyclists were 26 times more likely than passenger car occupants to die and about 5 times more likely to be injured.

The Leading Causes of Motorcycle Accidents

There is surprisingly limited information about the cause of motorcycle accidents.  Although nearly three and a half decades old, a study from 1981 titled “Motorcycle Accident Cause Factors and Identification of Countermeasures, Volume 1: Technical Report” (known as “The Hurt Report” for its lead author) is still considered the most comprehensive, accurate, and relevant study of the issues.  A summary of findings appears on pages 416 through 419 and includes the following conclusions based on an in-depth review of motorcycle accident reports and actual accident scenes:

  • Approximately three-quarters of studied accidents involved a collision between a motorcycle and another vehicle, while around one-quarter were single-vehicle incidents.
  • In two-thirds of the multi-vehicle accidents, the driver of the other vehicle was responsible for causing the accident and had violated the right-of-way of the motorcycle.
  • The most predominant cause of the studied motorcycle accidents was the failure of motorists to see the motorcycle either at all or until it was too late to avoid a crash.
  • The most common configuration in the accidents involved an automobile making a left turn in front of a motorcycle that is traveling straight.
  • On the side of the motorcycle operator, insufficient attention was the most common factor contributing to an accident.

Complex Cases, Experienced Counsel

Although the Hurt Report helps identify some of the most common causes leading to motorcycle accidents, the reality is that cause is rarely a simple inquiry.  In many (if not most) accident cases, multiple factors combined to lead to the plaintiff’s injuries.  The San Ramon tragedy is one example of a real-life accident that involved several smaller accidents and countless decisions on the part of both the drivers and the rider.

Motorcycle accidents can feel overwhelming, especially when it is you or a loved one who was injured.  Rest assured that our accident team works on complex cases every day, including cases in which more than one person was at fault.  We know how to read accident reports and work with experts to determine the various factors that led to the crash(es) and we know how to prove fault in court.

A final note — If you are worried because you may have contributed to the crash, rest assured that the law does not demand perfection.  Cause is a complex inquiry, something that the law and our legal team understand.  California law allows injured people to recover money even if their own negligence contributed to the accident.  Call to learn more.

See Related Blog Posts:

Sharing the Road: Even the Safest Pedestrians and Motorcyclists Rely on Responsible Drivers

San Francisco/San Jose Motorcycle Lawyer on Overcoming Bias

(Image by Flicker user torbakhopper)