QUESTION:
My cousin was struck by a car in a shopping mall parking lot in California. He is legally blind (almost no sight) and was carrying his white cane. The parking lot is usually busy with lots of people walking to and from their cars and crossing to the stores from the street. At about noon on a clear day, he was crossing the parking lot to the sidewalk when a driver backed out of a parking space. It appears from the diagram in the police report that he was in plain sight of the driver. According to the police report the driver told the officer that she "was backing when she heard something hit the driver’s side of her vehicle. She looked and saw my cousin had walked into the side of her vehicle . . ." The driver claims that my cousin walked into her car but the police report says she was not looking in his direction when he came in contact with the car, so I don’t see how it is possible that she knows whether he walked into her car or her car ran into him. Based on her statement that he walked into her car and his position on the ground the police said the accident was primarily my cousin’s fault, the unsafe backing of the driver was just a secondary factor. My cousin was knocked to the ground and broke his hip. He was taken to the hospital wherein he spent 4 days in the ICU. His medical bills from the hospital are more than $240,000 and he has been in physical therapy for 3 months. He has a permanent limp now. California has a "white cane" law that says basically that a blind person with a cane always has the right of way. However, since this happened in a parking lot I’ve been told this law doesn’t apply. Do you think the officer is right in his assessment? And does the white cane law apply in private parking lots? Violation is a misdemeanor, and I know that some misdemeanor laws apply in private lots, like DUI.
ANSWER:
Motor vehicle operators are subject to the general duty of due care as “everyone is responsible … for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person”, and thus can be liable for injuries caused by the failure to exercise reasonable care in operation of the vehicle under the circumstances. In one case it was held that the driver who parked his tractor-trailer rig alongside interstate highway to eat snack despite “emergency parking only” sign could be liable for wrongful death of negligent pickup driver who swerved off highway and rear-ended rig (rejecting court of appeal conclusion that rig driver owed no duty to avoid collision between rig and negligent driver) [Cabral v. Ralphs Grocery Co. (2011) 51]]. like other statutes pertaining to motorists, refers to “operators” rather than “drivers.” Vehicle “operation” is a broader concept and encompasses various acts fairly regarded as a necessary incident to driving, such as stopping, parking and exiting the vehicle. Moreover, businesses, such as shopping centers, restaurants and bars, have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control (e.g., parking lots), against reasonably foreseeable criminal acts of third parties. [Delgado v. Trax Bar & Grill].
Normally, information about medical conditions entirely different from the injury sued upon are beyond the scope of discovery (not “relevant to the subject matter”). However, medical records pertaining to an unrelated condition are discoverable on a showing of “good cause” if the condition is relevant to the issue of proximate causation. [Ev.C. § 999; Slagle v. Super.Ct. (Maryon) (1989) 211 CA3d 1309, 1314–1315, 260 CR 122, 125—P’s history of eye treatment discoverable since relevant to cause of auto accident. It would be best to seek personal assistance from a lawyer in order to guide you with the personal injury case.
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