This action involved a trip and fall accident that occurred in the evening when
Plaintiff, his wife and his friends were patrons of Defendant’s restaurant in Santa Barbara.

At approximately 9:30 p.m. Plaintiff left the restaurant exiting the side entrance-exit
doorway leading to the parking lot. It was dark, the light fixture on top of the doorway was
burned out and there were no lights in the parking lot. According to witnesses the light had
been out for several days. In addition to the lack of lighting, the landing for the subject
doorway was uneven. The right side of the landing extended out only 38 inches while the
left side extended out 5 feet and 6 inches.

As a result of the insufficient lighting and unevenness in the landing, Plaintiff’s right
leg first stepped down unto the parking lot while his left leg remained on the landing
causing him to lose his balance and fall sustaining severe injuries.

Plaintiff maintained that Defendant created a dangerous condition at its premises
by installing the subject side entrance-exit doorway where the landing was uneven. The
dangerous condition was made worse when Defendants failed to provide sufficient lighting
at the subject doorway.

When the subject premises was built, the landing was even in size and the exit did
not exist. The landing was later modified into its current condition when the parking lot
design was changed from diagonal parking spaces to straight parking spaces. Thereafter,
the subject exit doorway was constructed without obtaining a permit. A permit for the
subject exit doorway would have required the landing for such doorway to be at least five
(5) feet. Additionally, the Uniform Building Code required that there be at least 44 inches
of landing when the door opens. When the door to the side entrance/exit opened, it took
over half of the landing to where the next step on the right side was the parking lot while
on the left side there is more landing creating a trip and fall accident hazard.

In regard to illumination, the Uniform Building Code (hereinafter UBC) required that
one (1) foot candle of lighting be provided. An inspection of the subject premises
conducted under similar circumstances revealed that the measure of light for the subject
doorway and the parking lot was in the range of 0.06 to 0.13. The measure of lighting for
the subject doorway was only 0.06. However, on another inspection, the measure of light
was higher, because Defendant had installed light fixtures in the patio leading to the
subject doorway and rope lighting around the building.

The light measurements taken by Defendant’s expert revealed that the light source
was less than one (1) foot candle of lighting required by Uniform Building Code. Even
assuming any light source existed at the doorway, it would be blocked by the human body
upon exiting the doorway especially when reaching the curb at the landing.

When an unsafe condition in premises causes injury to business invitee, and has
been created by owner of property or by employee within scope of his employment,
knowledge of dangerous condition is imputed to owner and invitee need not prove owner's
notice or knowledge of it. Sanders v. MacFarlanes Candies, 119 Cal. App.2d 497 (1953).
Although obviousness of a danger may relieve property owner of duty to warn of its
existence, it will not necessarily relieve him of duty to remedy a danger if property owner
can foresee that, despite its obviousness, danger may cause injury, as when necessity
requires persons to encounter it. Osborn v. Missions Ready Mix, 224 Cal. App.3d 104.

This matter involves a tragic incident wherein Defendant’s employee took Plaintiff
a minor child, into the X-ray dark room and sexually molested him by taping his eyes shut.

On the day of the incident, Plaintiff was accompanied by his mother and younger
sister who had visited Defendants’ dental office for dental work. Both the minor child and
his younger sister were supposed to be seen at the same time. However, Defendant’s
employee only called the minor child in to be seen first. The minor’s mother attempted to
accompany the minor, but Defendant’s employee used his authoritative position and
coerced the minor’s mother to stay in the waiting room with the minor’s younger sister.
Once Defendant’s employee took the minor, none of Defendants’ employees, including the
dentist on duty, inquired from Defendant employee as to why he was taking the minor into
the X-ray dark room. Defendant’s employee walked the minor through the common office
areas to the dark room. Defendant’s employee was, therefore, allowed to use his
authoritative position to coerce the minor into the X-ray dark room and to place tape over
the minor’s eyes. Despite the tape over the minor’s eyes, the minor was able to see
underneath the tape when Defendant’s employee sexually molested the minor.

After sexually molesting the minor, Defendant’s employee took the minor to one of
the dental chairs and called the minor’s mother and little sister into the office. The minor
was upset and fearing that Defendant’s employee would also sexually molest his younger
sister was hysterically crying. The minor called out to his mother to not allow Defendant’s
employee to be alone with his younger sister. The minor then informed his mother how
Defendant’s employee had sexually molested him.

Defendants attempted to prevent the crime from being reported and refused to call
the police. Thereafter, plaintiffs employer called the police and investigation confirmed that
Defendant’s employee had sexually molested the minor. Defendant’s employee plead
guilty and is now serving a lengthy jail sentence.

Defendants should have never allowed their employee to be alone with the minor
child. Defendant’s employee had a known history of multiple felonies. Additionally,
Defendant’s employee had been allowed by Defendants to work as an x-ray technician
even though Defendant’s employee was not a licenced x-ray technician. Interestingly,
Defendants’ own policies provided that Defendants would not hire nor keep as an
employee anyone who has a criminal history of felonies and/or is not a licenced x-ray
technician. Defendants’ own policies provided that if they discovered that an employee
had a criminal history of felonies and/or the x-ray technician was not licensed, it would be
grounds for immediate termination.

LIABILITY

Plaintiffs contended that Defendants were liable for their employee’s wrongful acts
not only based on a theory of vicarious liability but directly for the negligent hiring and
supervision of their employee.

The California Supreme Court in Lisa M. v. Henry Mayo Newhall Memorial Hospital
held that an employer is vicariously liable for the torts of its employees committed within
the scope of the employment. Lisa M. v. Henry Mayo Newhall Memorial Hospital, (1995)
12 Cal. 4th 291, 296. The California Supreme Court further held that equally well
established, is the principle that an employee's willful, malicious and even criminal torts
may fall within the scope of his or her employment for purposes of respondeat superior,
even though the employer has not authorized the employee to commit crimes or intentional
torts. Id. at 297.

The court in Lisa M. v. Henry Mayo Newhall Memorial Hospital held that while the
employee need not have intended to further the employer's interests, the employer will be
liable if there is a causal nexus to the employee's work or if the act could have been
foreseen by the employer. Id. at 297, 299. The “foreseeability” test is met if, in the context
of the particular enterprise, the employee's conduct is not so “unusual or startling” that it
would seem “unfair” to factor the liability into the employer's cost of doing business. Id. at
299.

The court in Lisa M. v. Henry Mayo Newhall Memorial Hospital held that
foreseeability test is useful “because it reflects the central justification for respondeat
superior [liability]: that losses fairly attributable to an enterprise-those which foreseeably
result from the conduct of the enterprise-should be allocated to the enterprise as a cost of
doing business.” Id. at 299.

In the case at hand, it was foreseeable that because Defendants hired an employee
with a criminal history of felonies, a person who was misrepresenting that he was a
licensed x-ray technician, that minor children would be at risk for inappropriate conduct if
they allowed such an employee to bring little boys alone into a dark, windowless x-ray
room. If the conduct was foreseeable under the totality of circumstances as set forth in the
cases above, Defendant is 100% vicariously liable for the conduct of its employee.

If Defendant’s employee’s wrongful conduct falls outside the employment
relationship or scope of employment, thereby precluding respondeat superior liability, the
injured party may nevertheless be able to hold the employer directly liable on a theory of
negligent hiring and/or supervision. Liability for negligent hiring/supervision is based on the
theory that if an enterprise hires an incompetent or unfit employee with characteristics that
might pose a danger to persons the employee is expected to come into contact with in the
employment relationship (e.g., customers, other employees), the enterprise should bear
the loss caused by the employee's wrongdoing. See Hawkins v. Wilton (2006) 144 CA4th
936, 944, 51 CR3d 1, 6—“an employer cannot allow a drug-addled convicted felon to carry
and brandish loaded firearms during the course and scope of employment, particularly
where, as here, the employment necessarily consists of making contact with members of
the public.”

Liability for negligent hiring and supervision is based upon the reasoning that if an
enterprise hires individuals with characteristics which might pose a danger to customers
or other employees, the enterprise should bear the loss caused by the wrongdoing of its
incompetent or unfit employees. Mendoza, v. City of Los Angeles, (1998) 66 Cal. App. 4th
1333, 1339. In California, an employer can be held liable for negligent hiring if he knows
the employee is unfit, or has reason to believe the employee is unfit or fails to use
reasonable care to discover the employee's unfitness before hiring him. (See 53 Am.
Jur.2d. Master and Servant, §422, pp. 436-437.)

Defendant’s were negligent in the supervision of their business which directly led to
the molestation. Defendant’s employee took the minor child directly in front of the other
staff when he was not supposed to, to a place in the office he was not supposed to take
anyone. Defendant’s employee walked the minor child through the office in “broad
daylight” so to say, into the x-ray developing room. The minor child was not supposed to
be taken to have x-rays and certainly not alone with a felon in an x-ray dark room. Also,
Defendant’s employee right in front of Defendant’s other employees, prevented Plaintiff’s
mother from accompanying him which should have put the other Defendants on notice of
the suspicious conduct of their employee.

Plaintiff’s experts will testify that defendant’s had insufficient office policies and that
no employee should be permitted to take minor children alone into private rooms.

In the case at hand, Defendants were negligent in hiring and supervision of their
employee. If Defendants exercised due care in selecting an employee, they would have
discovered the fact that their employee had a criminal history of felonies and that he was
misrepresenting that he was licensed. Defendants then would have had reason to know
that their employee had character flaws that made him unsuitable and unsafe to be
allowed to take small children into a dark room with no windows.

This accident involved a tragic car versus pedestrian accident, wherein Defendant
recklessly ran through the crosswalk, at a residential intersection, and struck Plaintiffs in
the middle of the crosswalk. As a result of the collision, the entire family sustained severe
injuries.

At the time of the accident, all four (4) plaintiffs were crossing the intersection in a
marked crosswalk. Defendant was traveling southbound delivering pizza for his employer,
and claimed that he did not see any of the plaintiffs. A witness was traveling northbound
and approaching the subject intersection when he noticed the Plaintiff’s family entering the
crosswalk from the northeast corner and walk westbound. The witness noticed that
Defendant did not appear to see the Plaintiffs so he began to honk his horn to warn of the
accident. Defendant nevertheless failed to notice the entire family and struck the entire
family in the crosswalk.

Plaintiffs’ minor daughter testified that her parents had taught her to always look
both ways whenever crossing the street. Plaintiff’s daughter further testified that on the day
of the accident prior to entering the crosswalk, she looked both ways and only saw a
vehicle at a far distance. Plaintiff’s daughter further testified that she had no warning
whatsoever prior to being struck.

Defendant was traveling at the rate of speed of 30-35 mph through a residential
intersection with a speed limit of 25 mph when he struck the entire family. Defendant
admitted to the reporting officer that prior to reaching the subject residential intersection,
he noticed another vehicle traveling the opposite direction with its high beams on which
caused him to “squint and reduce his vision”. Defendant further admitted that as he
approached the intersection, traveling at 30-35 mph, he then heard something strike the
front of his vehicle and then shatter his windshield.

California Vehicle Code § 21950. Right-of-way at crosswalks provides:
(a) The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the
roadway within any marked crosswalk or within any unmarked crosswalk at an
intersection, except as otherwise provided in this chapter.
(b) This section does not relieve a pedestrian from the duty of using due care for his
or her safety. No pedestrian may suddenly leave a curb or other place of safety and
walk or run into the path of a vehicle that is so close as to constitute an immediate
hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or
unmarked crosswalk.
(c) The driver of a vehicle approaching a pedestrian within any marked or unmarked
crosswalk shall exercise all due care and shall reduce the speed of the vehicle or
take any other action relating to the operation of the vehicle as necessary to
safeguard the safety of the pedestrian.
(d) Subdivision (b) does not relieve a driver of a vehicle from the duty of exercising
due care for the safety of any pedestrian within any marked crosswalk or within any
unmarked crosswalk at an intersection.

 Defendant blamed the witness for flashing his high beams to alert him and also tried
to blame the City claiming an unsafe crosswalk.

This action involved an car vs car accident, wherein the Defendant negligently
crossed through a stop sign on Olympic Boulevard and broadsided Plaintiff’s vehicle who
was traveling eastbound on Olympic Boulevard. As a result of the collision, Plaintiff’s
vehicle was pushed into the sidewalk striking a pole and causing the airbag to be deployed.

 Despite the fact that Plaintiff was wearing her seat belt, the severity of the impact
and deployment of the airbag caused her to lose consciousness and to sustain severe
injuries including but not limited to a fracture of her C2 vertebrae.

The reporting officer found Defendant to have been the cause of the accident by
violating California Vehicle Code, §218029(a) for failing to yield the right of way to Plaintiff.
The reporting officer also noted that Plaintiff’s vehicle had sustained major damage and
to be undriveable. Plaintiff’s vehicle was declared a total loss.

At the time of the accident, Defendant was within the course and scope of
employment.

As a result of the accident Plaintiff sustained severe injuries requiring neck surgery
at the C2 level as well as a subsequent throat surgery which had occurred as result of the
intubation from Plaintiff’s C2 cervical surgery. Additionally, Plaintiff was diagnosed as a
surgical candidate for shoulder surgery. The Plaintiff also suffered brain injury as
evidenced by the loss of consciousness. Plaintiff was diagnosed to have an impaired
memory which severely impacted her life not only requiring her to stop working but
requiring her to write reminders for herself. Plaintiff frequently misplaced objects and in
particular had difficulty remembering names and telephone numbers. Plaintiff also had
difficulty with concentration as well as having difficulty with multitasking and word finding.
Plaintiff also found herself to lose her train of thought in the middle of her conversations.

As a result of the injuries sustained from the accident, Plaintiff was unable to and/or
had difficulty engaging in her normal daily activities such as grocery shopping, cleaning her
house, sleeping, and working.