QUESTION:
I was at the vons store and my 6wk baby needed a diaper change. I went to the restroom and they didn’t have a diaper changer. So, I put the baby on the floor and I was on my knees for 15 minutes while changing her clothes and pampers. Now my knees and back hurts. Can we open a case or not.
ANSWER:
A case may be opened provided that negligence on the part of the store is established. Where a negligence action is predicated on defendant’s violation of a statute, ordinance or public entity safety regulation, plaintiffs may be entitled to the benefit of the “negligence per se” doctrine in establishing their prima facie case. This doctrine presumes defendant’s duty and breach (failure to exercise due care); and the only issue left for plaintiff to prove is whether the violation proximately caused the injury or death. [Ev.C.§ 669; Satterlee v. Orange Glenn School Dist. (1947) 29 C2d 581, 588, 177 P2d 279, 283–284 ]. Evidence Code codifies the “negligence per se” doctrine as a presumption affecting the burden of proof: i.e., defendant’s failure to exercise due care is presumed if defendant violated a statute, ordinance or safety regulation of a public entity; the violation legally caused injury or death; the occurrence resulting in the injury or death was of a nature that the statute, ordinance or regulation was designed to prevent; and the victim was among the class of persons for whose protection the statute, ordinance or regulation was adopted. The burden is on the proponent of the doctrine to demonstrate that all four of the above conditions are met. The first two conditions (defendant’s violation and causation) normally are fact questions for the jury, but may be decided by the court as a matter of law where reasonable minds could not differ. The last two conditions are always legal issues for the trial court. [Hoff v. Vacaville Unified School Dist. (1998) 19 C4th 925, 938, 80 CR2d 811, 819; Jacobs Farm/Del Cabo, Inc. v. Western Farm Service, Inc., supra, 190 CA4th at 1526, 119 CR3d at 546; Urhausen v. Longs Drug Stores Calif.,Inc. (2007) 155 CA4th 254, 267, 270, 65 CR3d 838, 847, 850]. It would be best to seek personal assistance from a lawyer to help you with your personal injury claim.
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