Case studies and results details

Summary Judgment Granted Based on Language of Liability Agreement

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Gina E. Och and Edmund G. Farrell, III successfully defended client, Motorcycle Safety Foundation (“MSF”) up to the Court of Appeal.
Plaintiff, Mary Stout, signed up for a motorcycle riding training course with MSF. Prior to taking the course, she signed an agreement, which contained a release of all claims arising out of injuries that may occur during the training. After injuring herself following a crash during the class, she sued MSF.

Ms. Och brought a Motion for Summary Judgment, based on the language of the release. The Court granted the motion, and plaintiff appealed the case. Mr. Farrell represented MSF in the Court of Appeal, which unanimously held that the release barred all claims.

Case Arising From Cotton Gin Accident Dismissed in Court of Appeal

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Edmund G. Farrell, III and Michael J. Nunez defended J.G. Boswell from the initial suit to the Court of Appeal, where the claim was dismissed.
J.G. Boswell purchased a cotton gin from the manufacturer, and the cotton gin later injured plaintiff. Under the terms of the sale, J.G. Boswell agreed to indemnify the manufacturer for claims arising out of use of the machine. Plaintiff, Jimenez, was an employee of J.G. Boswell and suffered severe injuries in an on-the-job accident. She sued the manufacturer for products liability. The manufacturer declared bankruptcy. Plaintiff then cross-complained in her action, claiming she was a third party beneficiary of the sales agreement between her employer J.G. Boswell and the manufacturer.

Nuñez successfully argued a Motion for Summary Judgment, and Farrell handled the subsequent appeal. The Court of Appeal affirmed, holding there was no third party beneficiary of the purchase agreement.

Unanimous Verdict Reached in Favor of M&C Golf Course Client and Homeowners

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After a 45-minute deliberation, a jury returned a unanimous verdict in favor of Sterling Hills Golf Club, represented by Edmund G. Farrell, III in a case alleging nuisance, slander and civil rights violations. Plaintiff, Kagy, brought this action on his own behalf, and on behalf of his family.

Tom Kagy, an attorney, and his family resided at a residential development adjoining the golf club. He alleged that the club, along with some neighbors, harassed his family because they were of Asian descent. The harassment allegations consisted of continuous noise from golfers, balls being hit purposely at his home, night time harassment with noise and lights, and attacks on the family by the use of microwave radiation.

Following the first week and a half of trial, the Court granted the individual homeowners non-suits. Richard C. Moreno represented one of the homeowners. The trial continued for another week against the Golf Club before the jury ruled in favor of the Sterling Hills Golf Club.

M&C Wins By Demurrer in International Kidnapping Case

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Guy R. Gruppie, Eric P. Weiss, and Corine Zygleman won a Demurrer in a case that addressed the responsibilities of an airline in instances of the kidnapping of a minor. Plaintiff, Patrick Braden, is the father of four year-old Melissa Hinako Braden. Melissa’s mother, Ryoko Uchiyama, is a dual citizen of the United States and Japan. Although the parents were never married, Braden obtained joint legal and joint physical custody of Melissa, pursuant to a court order dated March 6, 2006. As a result of Braden’s concern that Uchiyama would take Melissa to Japan, he also obtained a court order requiring Uchiyama to surrender her passport and an order preventing her from traveling outside the state. Ten days later, Uchiyama allegedly flew on an All Nippon Airways (“ANA”) flight from Los Angeles, California, to Tokyo, Japan, with Melissa. Uchiyama did not obtain Braden’s consent and intentionally violated the court order. Braden has not seen Melissa since the flight. The Federal Bureau of Investigations and various California law enforcement agencies have issued arrest warrants against Uchiyama for international kidnapping.

On March 14, 2008, Braden filed a lawsuit against ANA, alleging that ANA should have had a policy requiring joint parental consent when minors travel abroad with only one parent. On December 17, 2008, the Honorable Judge William F. Fahey granted ANA’s Motion for Judgment on the grounds that ANA did not have a duty to obtain joint parental consent. However, The Court granted plaintiff leave to amend the complaint, to add more specific facts showing that Uchiyama’s conduct was foreseeable.

The First Amended Complaint alleged that Japan is the only G-9 country that is not a signatory to The Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction, which seeks to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained. It also alleged that the government of Japan has instituted a policy promoting international child abduction of Japanese children born abroad, and that airlines like ANA were complicit in this policy. Lastly, it added Melissa as a plaintiff and asserted three causes of action on her behalf (Negligence, Intentional Interference with Custodial Relations, and False Imprisonment).

On February 9, 2009, Judge Fahey sustained, without leave to amend, ANA’s Demurrer to the First Amended Complaint. The judge adopted ANA’s argument that the additional facts alleged did not give rise to a duty by ANA to require joint parental consent. Furthermore, the judge agreed with ANA that all of the claims in the First Amended Complaint are preempted by the Federal Airline Deregulation Act of 1978. As a result, the Court dismissed the action. ANA expects plaintiffs to appeal.

Murchison & Cumming Trial Attorney Leads Trial Defeating $77 Million Wrongful Death Claim Against Aircraft Company

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Jury Delivers Defense Verdict in 70 Minutes

Murchison & Cumming LLP is proud to announce the recent trial victory – an 11-1 defense verdict reached by the jury after only 70 minutes of deliberations following a six-week trial – that exonerated the manufacturer, owner, and second pilot of a turbine-powered single-engine utility airplane that crashed in the Banning Pass (between Los Angeles and Palm Springs) in March of 2006. Lead trial attorney was firm partner William T. DelHagen, who tried the case in the Superior Court, Riverside, Ca. along with Don G. Rushing of Morrison & Foerster in San Diego. He was assisted during pre-trial and the trial by Murchison & Cumming associates Paul R. Flaherty and Lisa D. Angelo.

“The plaintiffs thought they had a beautiful theory of liability but at trial it was mugged by a gang of ugly facts all pointing to the pilot error of the plaintiff’s decedent,” said Mr. DelHagen. Representing the plaintiffs was noted personal injury attorney Lawrence P. Grassini.

The decedent, flying the plane from the left seat, was an outside sales representative specializing in the type of plane involved. In the right seat was the company pilot, a regional sales manager who had brought the plane to the west coast for the salesman to demonstrate to a series of customers. The client manufacturer owned, maintained and operated the aircraft. The two pilots were the only occupants and both were killed instantly in the accident.

The lawsuit, heard before Judge Gloria Trask in Superior Court of California in the County of Riverside, alleged that inability to handle icing conditions caused the aircraft to stall, spin and plummet to the ground. The plaintiffs, the pilot’s surviving widow and adult son, claimed the company pilot was completely responsible for the flight’s failure because he filed the flight plan. At the end of the trial, they asked the jury to award $37 million in economic damages and $40 million in non-economic damages.

In the course of trial, the defense argued and decisively proved that there was no ice accumulation and skillfully presented evidence of pilot error. The defense team demonstrated that the decedent over-reacted to danger warnings of approaching rising terrain from an onboard system and from air traffic controllers. Mr. DelHagen and his co-counsel showed how the pilot became overcome by panic, rolled the aircraft over, became disoriented in instrument weather conditions and flew into the ground, killing himself and his colleague.

While the trial involved highly technical and complex fact patterns, the strength of the defense team’s evidentiary presentation is underscored by the jury’s 11-1 verdict, which was reached in just over an hour, on November 12, 2009.

Mr. DelHagen is a partner and a member of the Product Liability Practice Group of Murchison & Cumming, LLP. His successful practice focuses on product liability, aircraft, automotive, general and business litigation matters.

Summary Judgment Granted in Case Involving Assault

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Russell S. Wollman and Maria A. Starn won a Motion for Summary Judgment in a premises liability case involving assault. Plaintiff, a professional truck driver, filed a suit against defendant, the owner and operator of a truck stop, for the alleged failure to provide adequate security on the premises to prevent his being assaulted. Plaintiff claimed that while walking his dog on the property, he was struck on the back of the head by unknown assailant(s) and knocked unconscious. Plaintiff claimed significant personal injuries, including brain injury and resultant loss of earnings in excess of $200,000.

In support of plaintiff’s claim that the alleged assault was reasonably foreseeable, thereby imposing a duty on defendant to provide additional security measures, plaintiff produced police records evidencing numerous reports of prior criminal activity on the premises and officer testimony that truck stops, in general, are known for being high crime facilities.

Defendant filed a Motion for Summary Judgment on grounds that: (1) there was insufficient evidence to establish that plaintiff was assaulted on the premises; (2) assuming assault, defendant did not owe a duty to provide additional security measures in the absence of prior similar incidents of assault; and (3) plaintiff could not prove what, if any, additional security measures would have prevented the alleged assault from occurring.

On July 17, 2009, the Kern County Superior Court granted defendant’s Motion for Summary Judgment, finding that: (1) there was insufficient evidence to establish that plaintiff was injured by violent assault and battery; (2) assuming assault, the admissible evidence did not support reasonable foreseeability so as to give rise to a duty to provide additional security; and (3) plaintiff could not establish causation of injury as a result of an alleged lack of security.

M&C Wins Dismissal at Trial for Major Aircraft Supplier Client

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William T. DelHagen, Paul R. Flaherty, and Lisa D. Angelo obtained a dismissal on behalf of their client, a major supplier of private aricraft in the U.S., on claims of breach of warranty and fraud at trial.

Plaintiff’s corporate businesses bought a single engine aircraft for personal use. The aircraft had a series of engine problems and was also subject to a special service program to strengthen a sheet metal component in the wing. At the conclusion of this warranty work, plaintiff signed releases of all claims. Several years later, the engine shuddered and experienced increased oil consumption. Plaintiff and his corporations sued the aircraft manufacturer and the engine manufacturer for breach of warranty and fraud, attempting to apply state and federal “lemon law” statutes to an aircraft transaction.

After contentious discovery proceedings revealed that plaintiffs’ tax treatment of the aircraft was incompatible with personal use of the aircraft, plaintiffs dismissed their state law warranty claim.  The aircraft manufacturer brought a Motion for Summary Judgment on the federal warranty and fraud causes of action, arguing the federal statutory warranty claim could stand absent a state law warranty claim and seeking to enforce the releases signed by plaintiffs at the conclusion of the prior warranty work. The Court denied this motion, as it did for a subsequent writ on these issues. The case proceeded to trial.

Nevertheless, the trial judge granted Motions in Limine excluding all evidence of the prior warranty work; thus, enforcing the releases. The judge also narrowed plaintiffs’ warranty case to the single issue of whether either defendant had guaranteed that the aircraft engine would operate for 2,000 hours, which was the recommended Time Between Overhaul interval. After these rulings, plaintiffs dismissed their case against M&C’s client for a waiver of costs.

Evidence of Botched Landing Ends Wrongful Death Action

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William T. DelHagen, Adrian J. Barrio, and Paul R. Flaherty recently won a Motion for Summary Judgment for their client, a major supplier of aircraft in the U.S., in a wrongful death action arising out of a plane crash that occurred on January 24, 2006, in which two pilots and two passengers died. The case was venued in the United States District Court, Southern District of California, before the Honorable Dana M. Sabraw.

The evidence revealed that two trained and qualified pilots botched a routine, good-weather landing to an uncontrolled airport, and then further botched the attempted go-around. These mistakes caused them to fly into an antenna array at the end of the runway and, ultimately, crash the plane into a concrete commercial building. M&C’s client filed a Motion for Summary Judgment, supported by various admissions of fact made by plaintiffs.

The Court found no evidence of negligence, or of product failure on the part of the aircraft manufacturer. Therefore, the Court entered judgment in favor of M&C’s client.

Unanimous Defense Verdict Awarded in Million Dollar Construction Zone Case

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M&C’s Las Vegas office had cause to celebrate when–in less than three hours–a jury returned a unanimous defense verdict in favor of its client, Advanced Traffic Safety (“ATS”). During the nine-day trial, co-tried by Michael J. Nunez and Robert H. Panman, the jury was asked to award over $1.7 million dollars in damages for plaintiff’s alleged brain injury and spinal damage.

The plaintiff’s case centered around events of October 2003 during his drive home on surface streets in Las Vegas. As the plaintiff made his way through a construction zone and into a T-intersection, he moved from his lane of travel to a paved shoulder lane to his right. Following this move, plaintiff’s vehicle collided with another vehicle. The other vehicle was driven by a job foreman of the general contractor who had just left the work site. ATS was responsible for the traffic safety devices in the construction zone.

Plaintiff argued that the construction signs and cones in the area, and ATS’s failure to exercise reasonable care in the design, implementation and maintenance of the traffic control devices caused this accident. The general contractor and its job foreman also sued ATS.

At trial, M&C was able to show that ATS properly used and maintained the traffic control devices at the site. In addition to disputing liability, Nuñez and Panman presented evidence to the jury which called into question the nature and extent of plaintiff’s injuries. As a result of its win, M&C is currently making a motion for its attorney’s fees and costs.

Complex Medical Malpractice Matter Thrown Out of Court

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Guy R. Gruppie and Gina E. Och recently won  summary judgment for their physician client in a complex matter where plaintiffs alleged medical malpractice and a variety of claims, including fraud and Unfair Competition Law (“UCL”) claims.

Plaintiffs were a young married couple. One day, the husband experienced severe pain in one of his testicles. He deferred seeking medical attention before finally going to defendant’s urgent care clinic, even though a major medical center’s emergency room was even closer to his house. He was seen by a physician assistant who could not rule out testicular tortion with certainty because ultrasound was not available. Instead, he prescribed medication, which did provide the patient with some relief for a few days, before he again began experiencing severe pain.

At that point, he went to a hospital emergency room where various tests diagnosed tortion and revealed  that tissue in the area had essentially died, making surgical removal necessary.

Plaintiffs sued the clinic, its owners, the lead physician and physician’s assistant. M&C’s client was not present on the day the husband sought evaluation and treatment at the urgent care clinic, and another physician was on duty partly for the purpose of supervising the physician assistant. That evidence, in addition to the inability of plaintiffs to submit any admissable evidence in support of the fraud and UCL allegations, led to the granting of summary judgment by a three-judge binding arbitration panel, headed by former Orange County Superior Court Judge, Robert Jameson.