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Ford Explorer Carbon Monoxide Leaks

According to CBS News and USA Today, customers have been voicing concerns about Ford Explorer model years 2011 and onward. The hundreds of consumer complaints brought to the attention of the National Highway Traffic Safety Association (NHTSA) allege that, when accelerating with the air conditioning active and in circulation mode, the Explorer leaks exhaust fumes into the cabin of the vehicle. These exhaust fumes contain carbon monoxide, which can cause a driver to lose consciousness if inhaled in sufficient volume. Such a leak therefore threatens the lives of both the driver of the Ford Explorer and those of other drivers on the road.

Newport Beach police officer Brian McDowell nearly lost his life due to the effects of carbon monoxide inhalation while driving. While responding to a non-emergency phone call in his 2014 Ford Explorer, his head began aching and he felt nauseous before losing consciousness and crashing into a tree. Doctors tested him for months, to no avail, in attempts to figure out why he had blacked out while driving. Only after learning of numerous consumer complaints regarding the Ford Explorer did Mr. McDowell realize that he likely inhaled carbon monoxide in his car before passing out.

NHTSA cited 154 consumer complaints in July, when it began its investigation into model years 2011 through 2015 of the Ford Explorer. Since the launch of that investigation, the number of complaints has grown to over 450, according to CBS News. Further, some complaints were about the model years 2016 and 2017 of the Ford Explorer, model years not included in NHTSA’s investigation.

Ford has known about the issue since 2012, and has issued three “repair bulletins” to dealers in attempts to fix the issue, but the problem remains. A Ford representative, in a 2015 deposition, acknowledged that the Ford Explorer has a “design issue” that remains unresolved. The company agreed in August to settle a Florida class action lawsuit brought on behalf of those consumers harmed by the carbon monoxide leak, and another class action is pending in New Jersey.

There are two different tests in California for determining whether a defendant can be held liable for a design defect. The first is the “risk benefit test” under which a plaintiff must prove the following before liability may be imposed:

  1. the defendant manufactured, distributed,  or sold the product,
  2. the plaintiff was harmed, and
  3. the design of the product was a “substantial factor” in causing the plaintiff’s harm.

Once these three facts are proved, then the plaintiff must prevail unless the defendant shows that the benefits of the design outweigh its risks.

The second test is the “consumer expectations test” under which liability can be imposed if plaintiff shows the following:

  1. the defendant manufactured, distributed, or sold the product,
  2. the product did not perform with the level of safety a normal consumer would expect it to when used or misused in a foreseeable way,
  3.  the plaintiff was harmed,
  4. the product’s failure to safely perform was a “substantial factor” in causing the plaintiff’s harm.

These two tests are alternatives and a defendant can be held liable if either test is satisfied. Failure to satisfy one test cannot be used as a defense, should the defendant satisfy the other one.

Therefore, under a design defect theory of product liability, if a court finds that the benefit of the Ford Explorer’s design does not outweigh its risk of carbon monoxide poisoning, a consumer harmed by the carbon monoxide leak or a resulting accident can hold Ford liable for his or her injuries. Alternatively, if a court finds that a reasonable consumer would expect the Ford Explorer to perform more safely than it does, and this lack of safety results in harm to the consumer, the consumer can similarly recover.

If you or someone you know has knowledge of a defectively-designed product causing harm to consumers, please contact our office.

California Dram Shop Laws

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Riding Out the Storm: Driving Safely in Strong Wind and Rain

Driving during the holidays already seems like a Herculean task. But add in severe weather and you may find yourself in a dangerous situation. If possible, it is best to stay off the roads until the weather clears. However, this is easier said than done. Driving in any condition demands your attention. Driving in a storm deserves your vigilance.

The following tips may help you on the open road:

  1. Turn on your lights. Rain and high winds reduce visibility. California requires the use of headlights during rain, even in daylight.
    1. Headlights, taillights and other illuminating devices must be on any time it’s raining, snowing, sleeting, or hailing. Your lights must also be on any other time visibility is impaired by weather, smoke, fog, or conditions where you can’t see 500 feet ahead.
  2. Slow down. Traction decreases on wet pavement. Driving in wet conditions can cause hydroplaning.
    1. When the car hydroplanes, you should not immediately apply the brakes. How to recover from hydroplaning:
      1. Ease off accelerator
      2. Gradually decelerate
      3. Regain traction
      4. Apply brake nice and smooth
  3. Keep your hands firmly on the wheel. Keep both hands on the wheel because wind may move your vehicle.
  4. Keep your distance. Triple the three-second rule to nine seconds in poor weather conditions. A safe following distance gives you time to react to traffic.
  5. Avoid distractions. Don’t use your cell phone unless you have an acceptable hands-free device.
  6. Watch for objects. During hazardous conditions, be on the lookout for flooded roads, potholes, fallen branches, debris, downed electrical wires, and other roadway obstacles.

If you are injured in a car accident, due to someone else’s negligence, call our personal injury attorneys for a free case evaluation at 916-779-7000.

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Trump University Class Action Lawsuit

The class action case against president-elect Donald Trump and his Trump University for fraud progressed further yesterday, as Trump’s lawyers agreed to enter settlement talks. Plaintiffs allege that Trump University as well as Donald Trump himself made important misstatements and omissions when advertising for the courses offered by the now-defunct program. The plaintiffs in the suit further claim that they relied on these important misstatements and omissions in their decisions to spend tens of thousands of dollars – money they hoped would help them learn the secrets of the real-estate mogul’s business acumen.

Earlier in the day, Trump’s lawyers attempted to exclude from the upcoming trial some of the more shocking statements that Trump made during his campaign, including his accusing Judge Gonzalo Curiel (who currently presides over this case) of bias relating to his Mexican heritage. Judge Curiel hesitantly rejected this request by Trump’s lawyers.

The trial is scheduled to take place on November 28th. Daniel Petrocelli, lead attorney for Trump, has requested the trial be delayed on the grounds that Trump needs the time to work on transitioning into the presidency.

Legal Rights of Those Harmed

In federal court, for a plaintiff to proceed in a fraud (or “misrepresentation”) lawsuit, the plaintiff must prove six essential elements:

  • Defendant represented something to be true to the plaintiff,
  • The representation was false,
  • The defendant knew that this representation was false when it was made,
  • The plaintiff relied on and was deceived by the representation,
  • The plaintiff acted with ordinary prudence in relying on the representation, and
  • The false representation was the proximate cause of injury to the plaintiff.

If plaintiff shows all six of these things, the jury or judge must enter a verdict for the plaintiff.  3 Fed. Jury Prac. & Instr. § 123:02.

If you or someone you know relied on misrepresentations knowingly made by a business or other entity, and you suffered harm (financial or otherwise) as a result, please don’t hesitate to contact our office.

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SUV Slams into South Sacramento Apartment

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Photo Courtesy of KCRA

At approximately 3 AM this morning, a Ford Explorer slammed into two apartment buildings in South Sacramento. The SUV driver, a man in his 60s, claimed the accident occurred due to his foot getting stuck on the gas pedal, which caused him to lose control of the vehicle. The Sacramento Fire Department arrived to the location of the collision shortly after 3:15 AM, quickly discovering that the accident had sheared off four gas lines attached to the building. Although the fire department was able to stop the leak, the odor of natural gas could be smelled a block away from the crash site and the two apartment buildings were forced to be evacuated. The police said the driver will likely not be cited in the accident and the apartment’s manager will be handling the building’s repairs.

Although the story is still developing, Captain Simon Wiesner of the Sacramento Fire Department reports drugs are not suspected to be a factor in the accident. reports that each day in the United States, “over 8 people are killed and 1,161 injured in crashes that are reported to involve a distracted driver.” Similarly, the National Highway Traffic Safety Administration estimates that drowsy driving was the cause of at least 72,000 crashes, 44,000 injuries, and 800 deaths in 2013. Alarmingly, 1 in 25 adult drivers have fallen asleep while driving in an average 30-day period.

The CDC reports that each day in the United States, “over 8 people are killed and 1,161 injured in crashes that are reported to involve a distracted driver.” Similarly, the National Highway Traffic Safety Administration estimates that drowsy driving was the cause of at least 72,000 crashes, 44,000 injuries, and 800 deaths in 2013. Alarmingly, 1 in 25 adult drivers have fallen asleep while driving in an average 30-day period.

Most crashes or near-misses occur between 4-6 AM, midnight-2AM and 2-4 PM. November 6-13, 2016 is Drowsy Driving Prevention Week. In anticipation of daylight savings time and the darker winter months, The National Sleep Foundation offers the following tips to prevent distracted driving:

  • Get seven to nine hours of sleep a night
  • Don’t drive if you’ve been awake for 24 hours or more
  • Stop every two hours to rest
  • Pull over and take a nap if you’re drowsy
  • Travel during times you are normally awake

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