 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Martinez v. Children's Hospital of Los Angeles9/27/2002
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
I. INTRODUCTION
Plaintiffs, Sergio and Marta Martinez, appeal from a judgment entered upon a jury verdict in favor of defendants, Children's Hospital of Los Angeles and Pediatric Management Group. Plaintiffs sought their emotional distress damages resulting from the delay in the burial of their daughter occasioned by defendants' failure to timely produce an executed death certificate. Plaintiffs contend Evidence Code section 669 applies to their negligence theory and the trial court abused its discretion in excluding the testimony of two expert witnesses. We conclude Evidence Code section 669 is inapplicable to plaintiffs' negligence claim and the failure to permit an expert witness to testify was harmless.
II. EVIDENCE CODE SECTION 669
The Supreme Court has described the negligence per se rule of law codified in Evidence Code section 669 as follows: "`A duty of care, and the attendant standard of conduct required of a reasonable [person], may of course be found in a legislative enactment which does not provide for civil liability. [Citations.] In this state a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm which the plaintiff suffered as a result of the violation of the statute. [Citations.] The Legislature has . . . codified this presumption with the adoption of Evidence Code section 669: "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." (Subd. (a).)' (Vesley v. Sager (1971) 5 Cal.3d 153, 164-165 .) `Whether the injury involved resulted from an occurrence of the nature which the statute was designed to prevent and whether the plaintiff was one of the persons for whose protection the statute was enacted are questions of law. [Citations.]' (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 135 .)" (Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 938.)
Plaintiffs' presumption of negligence theory is premised upon Health and Safety Code section 102800, which provides in its entirety: "The medical and health section data and the physician's or coroner's certification shall be completed by the attending physician within 15 hours after the death, or by the coroner within three days after examination of the body. [ ] The physician shall within 15 hours after the death deposit the certificate at the place of death, or deliver it to the attending funeral director at his or her place of business or at the office of the physician." Plaintiffs reason Health and Safety Code section 102800 was designed to prevent the emotional distress accompanying a delay in burial and they are in the class of persons who the statute was intended to protect.
The strongest argument in support of plaintiffs' position is premised upon language in the California Supreme Court decision of Christensen v. Superior
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|