2018

Avoiding Discrimination and Harassment at Holiday Parties

Every year, my firm receives multiple phone calls from people who have been the victim of some form of harassment or discrimination at company-sponsored holiday parties. Once again, the holiday season is upon us and we hope that, if everyone thinks ahead, many of the potential pitfalls can be averted so that everyone can enjoy the parties.

End-of-year holiday parties have a particular potential for sexual, religious, and other forms of harassment because a number of unique factors are at play at these types of functions. First, holiday parties often take place at a location away from the worksite. This factor alone can lead to the relaxing of the behaviors people tend to understand as “workplace appropriate.” The fact that people are interacting in much more social environment than usual also adds to the tendency for people to stray from workplace norms, a tendency often exacerbated by the often accepted use of alcohol at these events. This combination can be recipe for bad things to happen.

It is important to remember that, in addition to any individual offending employees, employers can also be held liable (1) if they have failed to take steps to prevent discrimination and harassment, (2) if they know or should know about the conduct and fail to promptly and sufficiently put a stop to the conduct, or (3) if when the harassment is done by an owner, officer, director, manager or supervisor. In addition to continuing to follow all ordinary legal requirements to inform and train employees regarding their rights and responsibilities regarding improper discrimination and harassment, employers seeking to avoid liability for victims’ potential economic losses, emotional recovery, and even punitive damages should be especially mindful to ensure professional boundaries are maintained throughout holiday festivities.

The good news is that there are many steps employers can take to minimize the dangers of harassment. Invitations and announcements for work-sponsored holiday events, for example, can and should provide explicit guidance that all harassment and discrimination policies in place at work are applicable to holiday parties as well. Supervisors can remind staff that although co-workers will be interacting socially, they must treat each other with the respect they do in the workplace and set clear guidelines for what is expected. Archaic traditions, such as kissing under the mistletoe, that serve to legitimize and trivialize sexual harassment need to be left in the past.

If the employer is hosting the bar, a limitation on the number of drinks can keep people from overindulging. No good has ever come from a person overdrinking at a holiday party. Another crucial step to mitigate potential problems can be making sure, in advance, that everyone has a safe way to get home from holiday parties. This simple proactive gesture might save an employee from getting a DUI and, equally important, ensure that an intoxicated worker is not harrassed or coerced to accept a ride home from someone with ill intent.

Another area of concern at holiday parties can be religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to participate in a religious-based holiday, or to have to explain why they choose not to. Most religions have a mid-winter holiday, so holding ecumenical festivities can be a way of respecting all employees’ cultural traditions while celebrating the end of the year together.

Finally, if the employer hosts a gift exchange or “secret santa” game at the holiday party, a clear understanding of what types of gifts are acceptable is imperative. Sexualized gifts may seem funny to some, but can be offensive and traumatic to others given their particular history of sexual harassment or abuse. Non-sexual joke gifts, too, can cross the line into illegal harassment. Just last year, my office proudly represented an African-American woman who was singled out to receive a particular gift at the holiday party: a purse with a confederate flag containing pictures of the employer dressed as President Trump with a sign indicated the south would “rise again.” Employers should take responsibility for ensuring that all holiday gifts are given in good will and with the same respect and sensitivity expected in the workplace.

When employers make expectations clear and plan ahead for the well-being of all their employees, it allows everyone to safely celebrate winter festivities together and ring in a new year of successful employee relations. Each employee can also help. Make sure you have a plan to get safely home. Don’t encourage overindulgence in alcohol. Think about how the gift you are giving may be received. Act with dignity and respect toward your co-workers.

Enjoy the party. Hopefully, this year Dolan Law Firm will not receive one of those unfortunate calls.

This week’s question comes from Quinton in San Francisco, who asks:

Q: “I have been reading your columns on the electric scooters being rented in San Francisco. Is there one scooter company which, from a legal perspective, you believe is better to rent from?”

A: Quinton, based upon my review of the terms and conditions set forth by Skip and Scoot, I do have an opinion: Scoot is the way to go. Not only does it provide you with a free helmet if you request one after signing up, Scoot Networks’ user contract binds the company to provide you with insurance benefits in the event of an accident with a third party or the theft of a scooter. Skip provides neither of these amenities. While both Skip and Scoot are required to maintain insurance with the San Francisco Metropolitan Transportation Authority, it is not clear from the permit language that those regulations require insurance for the benefit of the rider, in addition to the company.

Unfortunately, if you are injured in a collision with another vehicle, whether it’s your fault, the fault of another, or because of a defective product or a defective roadway, no scooter provider will offer you any insurance coverage for your medical bills, lost wages or personal injuries, so you should make sure you have good health insurance before you go riding. If you are harmed by the fault of another then contact an experienced trial lawyer, like myself, for a consultation on your rights.

However, Scoot’s terms of service require the company to provide ”third-party” liability coverage, up to $2,000,000, for damages arising from a rider’s non-negligent use. Third-party liability is implicated when someone, not a party to the agreement between the rider and Scoot or its insurance company, is injured by the rider. Additionally, If a scooter is stolen during the rental period through no fault of the rider, the customer will only be liable up to the deductible amount. You should make sure to follow all required procedures to close out your ride so that you are not deemed negligent and held fully financially responsible for the theft. By using their service, you also give the company the right to bring an action in your name (termed subrogation) against any third party which it believes may be responsible for any incident.

There are several conditions and limitations to Scoot’s insurance coverage. Any independent vehicle insurance you own will be applied first, before Scoot will become financially involved. It is important to note that this coverage requires the user to pay any and all deductible amounts (listed at $500 for the Bay Area) per claim that arises out of a collision. Therefore, if a claim is for less than the deductible, the user will be responsible for paying the entire claim and the third-party insurance does not “kick in.” Scoot also prohibits you from engaging with any other parties to negotiate any outside offer, promise of payment, settlement, waiver, release, indemnity, or admission of liability in relation to a collision.

Scoot provides itself a way out of providing this insurance if you do not strictly comply with all of its terms and conditions of use. Indeed, Scoot clearly states that it “does not cover damage due to User’s breach of the Terms and in such an event User will be responsible for the full cost of such damage.” Scoot’s Terms of Service can be found at scoot.co/legal/united-states/terms-of-service/. You should also familiarize yourself with their Collision and Insurance Policy: scoot.co/legal/united-states/collision-and-insurance-policy/. Those terms include obligations to contact the police and Scoot within one hour, fill out a police report and provide Scoot with a factual description as to how the incident occurred and other details concerning the incident. You will be required to submit the involved license plate numbers, makes and models of involved vehicles, involved drivers’ license numbers and contact information, insurance information, witness information and any information concerning insurance policies you have that may provide you with insurance coverage.

So, if you or someone else is injured and you are on a Scoot scooter make sure to call the police and get a police report. Make sure you get an incident report number, so you can request a copy of the report. If there is only property damage, the police usually will not respond, but you can file a “counter report” at the nearest police station. You can request a copy of the report online at https://sanfranciscopolice.org/traffic-collision-report. This usually takes 10 days to process.

Today’s article is a continuation of my open letter to Scoot, Skip and other providers of the electric, app-based, scooters that are littering our cities. For part 1, please visit “Time for scooter companies to be responsible” and stay tuned: I will inevitably need more than these two columns to provide my readers with the “full scoop” on the greedy and cynical way that scooter companies are behaving and endangering us all, riders and non-riders alike.

Your products present an unreasonable risk of harm to pedestrians, especially the disabled and visually impaired, who trip and fall over the unattended scooters. Many of the scooters are dark in color and not easily seen on a dark sidewalk. While one manufacturer has some lighting on their boards to make them more visible at night, most don’t. As a result, sidewalk, parking lot, and roadway obstructions often cannot be appreciated until someone gets injured by tripping or falling over a scooter. Unlike electric City Bikes, which must be docked to terminate the ride and end user liability, or Jump bikes, which include a locking mechanism for use only at suitable location, your scooters are not required to be returned to fixed or organized locations. Instead, they are left strewn about the sidewalk in random locations. While you “encourage” riders to park them safely, and San Francisco has an ordinance requiring that they be parked near and between certain objects to reduce tripping hazards, let’s face it: your users largely just get off and drop them wherever they want.

California’s basic liability law is contained in California Civil Code 1714 which reads: “(a) Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” These scooters are YOUR PROPERTY and you are responsible to use care to manage that property. Suggesting that riders park safely does not get you off the hook if you are not taking reasonable steps to manage your property in a safe manner. You should fulfill your legal responsibility by adopting docking stations so that the scooters are left at pre-arranged, well-marked locations in a safe and organized fashion.

As a lawyer who represents unfortunate, blameless people who are injured by the “want of ordinary care” in the management of property, whether it be bikes, skateboards, electronically motorized boards, scooters, cars, slippery steps or driveways, collapsing staircases, unsafe balconies, etc., I would have no problem extending my use of the law to sue a scooter company on behalf of anyone who trips or falls over them.

Your products are endangering innocent property owners in many locations, such as Richmond, San Francisco, and other cities, where they are held responsible for the maintenance of the sidewalks in front of their buildings. As I previously noted in my April 20, 2017 column for this paper, “San Francisco is Obligated to Inspect Public Sidewalks for Hazards,” California State and Highways Code Section 5610 states that “owners of lots or portions of lots fronting any portion of a public street … shall maintain any sidewalk in such condition that the sidewalk will not endanger persons or property.” Likewise, San Francisco Public Works Code Section 706 mandates that “owners must maintain sidewalks surrounding their property in a reasonably safe condition.” If a landowner is aware of an obstruction and fails to remove it, they are exposed to financial liability for injuries sustained as a result of the obstruction. By allowing your customers to arbitrarily drop off scooters on sidewalks, where they sometimes cluster around certain buildings, you may cause landowners to be sued for not removing them.

Your terms and conditions are unconscionable and show your lack of concern for users. In your agreements, which you must know most customers fail to read before accepting, you include some of the most unbelievable, self-serving, and, in my opinion, unethical language seeking to shield you from any responsibility for the harms your products cause. It is unfathomable that you seek to escape responsibility from even improper maintenance of scooters, which can and will break and injure or kill people. You go even so far as to require injured riders to waive their rights against scooter manufacturers if the provided vehicle is defective in design or manufacturing.

SCOOTER RIDERS READ THIS CAREFULLY: These scooter contracts include provisions stating that users assume all risks of harm, injury and death, and release manufacturers and vendors from all liability caused by the use of their products, even if those companies are at fault for the injuries.

The following is part one of an open letter to Scoot, Skip, and other providers of electric scooters detailing serious safety concerns I have pertaining to their scooter rental businesses. Part two will be published next week.

I wrote this letter because, as a trial lawyer representing seriously injured people, I see preventable tragedy ahead. The current circumstances remind me of 2012-2013, when Uber and Lyft first hit the streets and I was writing about the inevitable injury and death I could foresee from their business models, as well as the resulting insurance crisis in which victims would be unable to receive compensation for medical expenses, lost wages, and loss of loved ones.

Tragically, shortly after I wrote about those risks, Sophia Liu was killed by an Uber driver on New Year Eve of 2013 and Uber denied any responsibility for her death. After Sophia’s death, I was retained by her family and pursued both a lawsuit on their behalf and, in conjunction with the Consumer Attorneys of California, a change in the law to require Uber and Lyft to provide one million dollars insurance coverage for people injured by their services.

The time has come for these “new scooter transportation services” to act like responsible businesses and ensure their users are not left with life-altering injuries and hundreds of thousands in hospital bills.

To Whom It May Concern:

I am writing you to put you on notice of safety risks created by your products/services, your non-compliance with the California Vehicle Code, your unconscionable contract clauses which harm your consumers, and the lack of insurance coverage which will leave your users financially and, in many instances, physically crippled for life if injured in a collision. I appeal to your consciences and implore you to take immediate action to correct these very real threats to public safety before someone is severely injured or killed. I can assure you that such a day is unfortunately, and inevitably, fast approaching. You now have the opportunity to act as a socially responsible business by adapting your model to prevent injury and protect those who will ultimately be harmed by the use of your product.

Based on my review the following is my educated legal opinion about the dangers and legal violations which your products/services create.

Your devices appear to fall under regulations promulgated under the California Vehicle Code, meeting the definition of an “electronically motorized board (EMB)” pursuant to California Vehicle Code Section 313.5.

Your products/services are defective due to their lack of providing required head protection (helmets). California Vehicle Code Section 313.5 requires that a user of an EMB use a helmet if they are operating on a roadway, sidewalk or bike path. You know your products will be operated on these facilities, yet you provide no helmets! That is analogous to a rental car company renting vehicles without seatbelts. Any casual observer can see that the majority of users of your products are helmetless. As such, you should provide a helmet or obtain proof of the use of a helmet before you rent your product. Anything less is socially irresponsible and uncaring for your customers. The fact that it may be difficult to create a mechanism to reliably provide each user with a helmet does not circumvent the requirement that a helmet be used.

Your devices violate minimum visibility requirements. Along with head protection, there is probably no bigger safety factor than visibility. California Vehicle Code Section 21293 requires that EMB’s meet certain minimum visibility standards: 1) a headlight that provides a minimum of 100 feet of visibility; 2) a red tail light visible from a minimum of 500 feet; and 3) white or yellow reflectors on the sides visible from no less than 200 feet. To comply with Section 21293, the lighting must be visible to others who are using the travel ways and may be affected by the movement of the scooters. A review of your scooters on the roadways demonstrates that most, if not all, vehicles violate these visibility requirements. While Scoot vehicles have headlights mounted on their handlebars, and therefore visible to others in a normal and customary manner, their luminosity is questionable and may vary depending on the charge in the battery. Skip vehicles have lights positioned on the floorboard, less than 10 inches off the ground. These lights may provide some visibility for the user to see roadway defects, but do not alert other roadway users to the scooter’s presence. Moreover, neither service provides white or yellow reflectors on the sides of the devices and their rear tail lamps are weak, small, and too low to be meaningfully visible. In short, these devices appear to be defective and dangerous products manufactured and operated in violation of the California Vehicle Code.

Consequences of Vehicular Homicide

Jane in San Rafael asks: “I am an avid bicyclist and supporter of the Marin and San Francisco Bike Coalitions. It is frightening to ride on city streets. Last week there was a DUI-related fatality in Marin and another bike death in Windsor. What does the law do to punish people that kill bicyclists? Maybe letting readers know of the penalties might help them think twice and prevent more of these deaths.”

Jane, as a supporter of the Marin, Oakland, and San Francisco Bike Coalitions who rides with his children, I am horrified to see the increase in injury and death occurring in the cycling community. I am intimately familiar with the case in Windsor: we have been retained to represent the family of the young woman who was killed by a large truck. The Marin case, involving the drunk driver, is very tragic: people ruining their own lives by drinking is a shame, and when they kill innocent people on top of that, it’s criminal.

According to the National Highway Traffic Safety Administration, 3602 people were killed in California motor vehicle collisions in 2017. The majority of fatal collisions involve more than one vehicle and other vehicle occupants are the most likely victims of fatal collisions, followed by pedestrians, motorcyclists, and bicyclists. Thirty-one percent of these involved at least one driver with a blood alcohol level above the legal limit and 20 percent involved a driver with at least twice the legal limit. California Vehicle Code 23152 makes it unlawful for a person who is under the influence of any alcoholic beverage or drug to drive a vehicle while intoxicated, which is presumed at a blood alcohol level of 0.08 percent or greater, by weight. Commercial drivers, and drivers carrying passengers in exchange for compensation (taxis, Uber, Lyft, etc.) are presumed to be intoxicated if they have a blood alcohol level of .04 percent or greater.

Accidental deaths caused by motor vehicles generally fall under the rubric of vehicular manslaughter. California Penal Code (CPC) Section 192(c) defines vehicular manslaughter as the unlawful killing of a human being while: (1) driving a vehicle in the commission of an unlawful act (not a felony); or (2) driving a vehicle in the commission of a lawful act which might produce death in an unlawful manner. Vehicular manslaughter may be committed with or without gross negligence, defined as so slight a degree of care as to raise a presumption of a conscious indifference to the consequences. Causing death while perpetrating an accident insurance scheme, where the vehicular collision was knowingly caused for financial gain, may also be tried as either vehicular manslaughter or murder. If the driver is acting lawfully in a lawful manner, a resulting death is not considered a homicide.

According to CPC Section 193, the sentencing and punishment for vehicular manslaughter depends upon whether the offense is charged as a misdemeanor or felony. A misdemeanor vehicular manslaughter conviction is punishable by up to one year in county jail. A felony vehicular manslaughter conviction is punishable by up to six years in state prison. We recently handled a case on Highway 680 where a slow-moving construction crane, without its lights on and without warning or guides, entered the freeway from a staging area directly into 65 mile per hour traffic, causing death when another driver collided into the rear of the crane. In that case, the defendant crane driver plead no contest to vehicular manslaughter and was subject to a year of house arrest. The driver and the insurance company representing the business paid many millions to compensate the family for the loss of their husband and father.

Cases where the driver was intoxicated often command more severe penalties under CPC Section 191.5 defining “gross vehicular manslaughter while intoxicated.” Gross vehicular manslaughter while intoxicated, if committed without malice, is punishable by imprisonment in the state prison for up to four years; with malice, for up to 10 years. A person with one or more prior convictions of drunk or reckless driving who causes a fatality is subject to imprisonment in state prison for a term of 15 years to life. Gross vehicular manslaughter while intoxicated may be charged even if the driver’s blood alcohol level does not exceed the legal limit, as well as when an impaired driver is not the sole cause of death. In one case, a man with a blood alcohol level of .03 percent was traveling late at night on his way home from a concert, proceeded to fall asleep and rear-ended a car. After the initial accident, the occupants were able to get safely to the shoulder, but a truck driver, not paying attention, swerved to avoid collision with the car and killed the passenger of one of the vehicles. The impaired driver who caused the initial collision was charged with gross vehicular manslaughter while intoxicated.

Finally, if the driver’s conduct rises to a such level of wantonness as to support a finding of “implied malice,” it may be prosecuted as second degree murder. “Malice” is the mental state that distinguishes manslaughter, caused by the perpetrator’s criminal negligence, from murder, in which the perpetrator either intends to kill or acts deliberately with conscious disregard for human life despite knowledge that their conduct is dangerous. The California Supreme Court, in its seminal 1981 decision, People v. Watson, held that the statutory language crafted specifically for vehicular manslaughter does not preclude a charge of second degree murder where a perpetrator exhibited subjective appreciation of a high degree of risk to human life. In that case, the defendant had driven over 80 miles per hour in a 35 mile per hour zone with more than twice the legal blood alcohol level. When a driver willfully consumes alcohol to the point of intoxication, knowing that they will later operate a motor vehicle, they can be held to exhibit a conscious disregard for human life. The capability of the intoxicated driver to form malice in the act of reckless driving may later be evaluated with respect to a diminished capacity defense.

The vehicular homicide cases I have handled have involved people from all races and socioeconomic backgrounds. The law doesn’t discriminate between a rich guy driving a Porsche and a poor laborer driving a beat-up pickup truck. District Attorneys have little sympathy for drunks or unlawful drivers who cause harm or death. I hope that anyone reading this will refrain from driving even if they have had “only a couple of beers.” My heart and prayers go out to the families of the bicyclists who have been so senselessly killed.

Jury duty and disabilities

Following an article I wrote recently on jury selection, I was contacted by a Stephen W., a psychiatrist, who asked that I inform people who suffer from disabling conditions about their rights if called for jury selection. I was reluctant to write this article, as I do not want to provide people with excuses to try and get out of jury service. However, I have personally observed over the past 25 years that there are people with disabilities, both physical and mental/emotional, for whom jury service may be ill-advised or damaging.

Jury service is a civic duty. The right to a jury trial is one of the fundamental rights all Americans possess, ensconced within the Bill of Rights, the first ten amendments to the Constitution, and the Seventh Amendment. Interestingly enough, there is no right to vote contained in the Bill of Rights. Not until 1870, following the civil war, was the Fifteenth Amendment passed which stated that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State because of race, color, or previous condition of servitude [slavery].”

Jury service is a fantastic experience in participatory democracy. You and twelve ordinary citizens, after listening to the facts of a case, and the instructions on the law given by the judge, get together in a room and deliberate. Webster’s Dictionary defines “deliberate” as “to think about or discuss issues and decisions carefully.”

Jurors are identified by voter roles and DMV records and are chosen at random. The local jury commissioner issues subpoenas through the mail. California law provides that a juror may be summoned only once a year. Some trials are longer than others. For example, a criminal misdemeanors trial for shoplifting may take a day, whereas a murder trial may take several months. Likewise, a civil trial for a simple rear-end collision may be a day long, whereas a complicated wrongful death case or employment discrimination case may take weeks or months. The longest trial I have ever participated in was an employment case that lasted three and a half months.

There are penalties for any prospective trial juror who has been summoned for service and fails to attend as directed. Pursuant to California Civil Code Section 209, a judge may issue a warrant of attachment compelling a person who fails to respond to a juror summons to come before the judge. Following a hearing, the court may find a prospective juror in contempt of court, a crime punishable by fine, incarceration, or both.

Nevertheless, under Code of Civil Procedure Section 228, a prospective juror may be disqualified at the judge’s discretion if they have an incapacity which makes them unable to perform the duties of a juror. The California Rules of Court Rule 2.1008(d) states reasons for which a judge may grant an excuse from jury duty, including when a prospective juror:

Lacks “reasonably available means of public or private transportation to the court”
Must travel in excess of 1.5 hours from home to the court
Would bear extreme financial burden taking into consideration their income, expected length of jury service, availability of reimbursement for lost income, risk of compromising their ability to support themself and any dependants, and other unjust outcomes
Would unduly and unavoidably risk material injury to their property
Is “immediately needed for the protection of the public health and safety” to prevent “substantially reducing essential public services”
Is required for the personal care and attention of a dependant with no comparable economical substitute

Finally, and relevant to your question, a judge may grant a prospective juror excusal from service if they have “a physical or mental disability or impairment, not affecting that person’s competence to act as a juror, that would expose the potential juror to undue risk of mental or physical harm.”

Prospective jurors who believe that they medically or psychologically cannot sit as jurors should come to court on the date of their summons with a letter from their physician, psychologist or psychiatrist. Before jury selection, the judge will ask the assembled prospective jurors if they have a hardship which would preclude them from jury service. Those who believe they do will be allowed to fill out a hardship questionnaire. That is the time to inform the judge of your disability, supported by documentation verifying appropriate impairments and detailing their probable duration and impacts on ability to serve as a juror. If such an individual is aged 70 years or older, no documentation is required. They will then review your request, may ask for a letter or further explanation, and will grant or deny your request as appropriate.

A juror with a disability may alternatively be entitled to an accommodation so that the prospective juror can participate in the trial. California Civil Code Section 224 states, “The court shall appoint a service provider whose services are needed by a juror with a disability to facilitate communication or participation.” Available services include court-appointed sign language interpreters, oral interpreters, or deaf-blind interpreters. Likewise, a juror may ask for breaks, the ability to stand or even lie down. (Yes, one time I had a juror with a bad back who was allowed to lie down during the trial with her head propped up so she could see the evidence)

Some prospective jurors may seek disqualification due to a special vulnerability to emotional distress given the facts of the case at hand. In a case I tried several years ago, a prospective juror indicated they suffered from depression and felt that the case we were about to try, involving a woman claiming severe emotional distress, would be emotionally damaging to her. The judge, after hearing from the prospective juror, and observing her demeanor, dismissed her from further jury service. In another case, involving gynecological malpractice leading to the death of a baby, the judge excused a prospective juror who was pregnant and felt that it would be psychologically traumatizing for her to hear the facts in the case. Moreover, criminal trials for rape, assault, sexual abuse or death of a loved one may involve facts which are too intense for some people who may have suffered from similar crimes. If the facts of a particular case are the basis for a hardship, the judge may dismiss such a juror or send them back to the Jury Commissioner for assignment to a different type of case.

As a trial lawyer I encourage everyone to serve as a juror. Jurors are essential to our system of justice and, if you were a defendant or plaintiff, you would want a fair jury of your peers to hear your case.

Safety Regulations for Commercial Trucks Carrying Fruits and Vegetables

This week’s question comes from Mark C. in Modesto who asks:

Q: “Yesterday morning I was driving on the freeway when a large semi-truck merged into my lane. The semi-truck was loaded with tomatoes which were not covered and appeared to be overflowing. As he merged into my lane the semi-truck jerked a bit, which caused some of the tomatoes to fall and splash onto my windshield and on the road ahead of me. I lost control of my vehicle and I almost crashed into the center divider. Thankfully, I was able to regain control of my vehicle, but this incident could have easily turned into a tragic accident. What are the laws regarding commercial trucks transporting fresh produce? Shouldn’t they be required to cover the fresh produce or refrain from over loading the truck to prevent spillage?”

A: Mark, I am glad to hear that you were not seriously injured, although I can imagine this was a frightening experience. California has established laws that apply to just this risk of escaping cargo posed commercial trucks. The purpose of these laws is to prevent spillage, which can cause traffic problems and, most importantly, serious injury or death to other motorists driving on the highway.

Under California Vehicle Code Sections 23114 and 23115, it is against the law to operate on the highway a vehicle which is improperly covered, constructed, or loaded so that any part of its contents or load spills, drops, leaks, blows, sifts, or in any other way escapes from the vehicle. The only contents that are allowed to fall from a truck are feathers from live birds and clear water. California Vehicle Code Section 24002 also provides that, “It is unlawful to operate any vehicle or combination of vehicles which is in an unsafe condition, or which is not safely loaded, and which presents an immediate safety hazard.” Moreover, the Department of Motor Vehicles’ (“DMV”) Commercial Driver Handbook also provides that any person who willfully or negligently damages any street or highway is liable for the costs of removing the debris from the roadway. A driver can be cited for spilling tomatoes on the road and the company can be fined for the costs incurred to clean up the mess. The semi-truck that merged into your lane had a duty to abide by both the California Vehicle Code’s spill protection safety requirements and the the littering prevention mandates of the DMV Commercial Driver Handbook. .

Under the common law doctrine of respondeat superior, codified in California Civil Code Section 2338, the employer of an individual is responsible for the torts (wrongs) committed by its employee that happen within the “scope and course of their employment,” in order to spread the risk through insurance and carry the cost thereof as part of his costs of doing business. In this case, the trucking company had the responsibility to make sure that the tomatoes were properly loaded. The cargo on the semi-truck should have been covered or in the alternative it should have been loaded with sufficient space below the upper edge of the semi-truck to prevent spillage. Clearly, the semi-truck driver and his employer did not follow the safety requirements as provided by California laws and negligently packed the tomatoes, which subsequently caused them to fall off the truck as the semi-truck was merging into your lane.

Such negligent conduct by companies in charge of transporting cargo can cause serious personal injury to motorists on the road when they fail to follow safety procedures. In your case, as a result of their negligence, tomatoes splashed onto your windshield and onto the roadway which caused you to lose control of your vehicle. Generally, the statute of limitations for personal injury is two years from the date of the incident; however, it is important to highlight that if a government entity is involved, such as the California Department of Transportation (“CalTrans”), under California Government Code Section 910 you must bring a claim against the government entity within six months after the incident. you must serve a 910 Government Claim Form on the district, and certain specific rules about serving this document, what must be included in this document, and when it must be filed must be followed to provide the district notice that you will file a civil case. I urge you to contact an attorney experienced in this area to assist you in this complex process.

We have handled numerous cases in which individuals have suffered bodily injuries due to the negligence of semi-truck drivers. However, this column does not constitute legal advice and it is important that you consult with an experienced trial lawyer as soon as possible, especially if you you suffered personal injuries.

Christopher B. Dolan is the owner of the Dolan Law Firm. Email Chris questions and topics for future articles to help@dolanlawfirm.com.
We serve clients across the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Our work is no recovery, no free or also referred to as contingency-based. That means we collect no fee unless we obtain money for your damages and injuries.

Pursuing damages in a San Francisco and Bay Area bicycle accident case

The city of San Francisco and surrounding Bay Area is a beautiful place to ride a bicycle. However, as enjoyable as the sport is, it also comes with its share of dangers. There a lot of hazards that can cause a bicycle crash, like: roadway hazards, potholes, reckless automobile drivers, reckless bus drivers, and problems with the bicycles themselves. When one of these factors causes a bicyclist to get into an accident, the injurious consequences can be life altering and deadly to say the least.

Gender Identity Harassment

From Lindsay in San Francisco: A coworker with whom I work closely recently began his social transition from presenting as the sex he was incorrectly assigned at birth to his true gender identity. Most of our colleagues have been respectful and encouraging during this process but there is one older woman who refuses to use my transitioning coworker’s correct name and pronouns and occasionally makes other demeaning remarks. The woman’s offensive comments are distracting and make me uncomfortable, but I’m really concerned that my transitioning coworker will feel so ostracized that he will end up quitting the job rather than deal with daily harassment. Should I share my observations with HR?

Lindsay, it is distressing to hear about your coworker’s alienating experiences at work as a result of his gender identity and expression. Fortunately, California’s employment discrimination laws protect employees against this kind of harassment and have been updated in the past two years to clarify and strengthen these protections.

Discrimination and harassment based on sex and gender is prohibited under the state’s Fair Employment and Housing Act (“FEHA”). Since 2011, FEHA has specifically included “gender identity” and “gender expression” as traits for which employees are protected from unlawful discrimination and harassment. Last year, the California Fair Employment and Housing Council promulgated detailed regulations to clarify how protections based on gender identity and expression should be applied. Finally, effective January 1, 2018, all employers are required to conspicuously post a state-approved “Transgender Rights in the Workplace” poster and employers with 50 or more employees must include units on gender identity, gender expression, and sexual orientation in mandatory sex discrimination trainings.

Under the 2017 regulations, gender identity is defined as a person’s “internal understanding of their gender,” including “male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth and transgender,” whether or not expressed in the employee’s external presentation. The regulations also specifically protect those in transition, perceived to be transitioning, or who have already transitioned, with “transitioning” defined as a process in which an individual begins living as the gender with which they identify, including changes in name usage, facility usage, participation in employer-sponsored activities, as well as any relevant medical procedures. Among its protections against discrimination, the regulations proscribe employers requiring gender documentation or imposing job duties, dress standards, or facility usage inconsistent with an employee’s gender identity or expression, except in very limited circumstances.

As discussed in previous columns, FEHA forbids workplace sexual harassment both in the form of “quid pro quo” offers or threats contingent on sexual favors and the much broader category of “hostile work environment” harassment. A hostile work environment may be created even in the absence of any specific adverse employment action when unwelcome conduct based on sex or gender either unreasonably interferes with an employee’s work performance or creates a workplace that would be intimidating, hostile, or offensive to a reasonable person in the employee’s shoes. A given conduct’s lawfulness is evaluated using all relevant circumstances and can be exacerbated by individual attributes such as a history of related abuse. Both the harasser and victim may be of any gender identity and the behavior need not motivated by sexual desire. Indeed, the complaining employee need not even be the intended target of the harassing conduct; a mere witness like yourself may have standing if they personally witness conduct such that their immediate work environment is permeated by sexual harassment.

As you can see, California law does prohibit the kind of harassment your transitioning coworker has been suffering if the colleague’s insults and misuse of former name and pronouns are pervasive enough to impact the workplace atmosphere or affect the complaining employee’s job performance. Generally, the “pervasive” standard requires that the harassment not be occasional, isolated, sporadic, or trivial and to either (1) have become part of the employee’s daily or weekly work routine, (2) undermine their ability to perform their job, or (3) cause them persistent distress. In your question, you indicate that you worry your coworker might quit his job to avoid the regular distress he experiences, a situation known as constructive discharge. He may indeed have a strong claim against the harasser and possibly your employer, if they have not undertaken all legally required duties to prevent harassment and promptly correct unlawful behavior of which they should reasonably be aware. A successful case will require the assistance of an experienced employment law attorney.

In the meantime, you should certainly encourage your HR department to look into the matter and reaffirm that your employer has duly updated its employee manual, workplace rights posters and, if the company employs 50 or more employees, mandated manager training curriculum in conformance with current California law.

Today’s question comes from Jane in Portola Valley who asks, “We were bike riding in Marin and we were going to stop in Samuel P. Taylor Park to have a bite to eat and rest before continuing our ride to Point Reyes. I hit a bump in the road and was thrown from my bike. I landed on my head and suffered pretty bad cuts on my face and shoulder and broke my forearm. The bump was pretty big and wasn’t really visible to me as the sun was directly overhead. After I fell, the police came and the park ranger walked over and said that I wasn’t the only one to fall there. Do I have any legal recourse?”

Jane, your question is not an easy one to answer with so little information because so much of its legal success would depend on facts, such as whether your fall took place inside or outside of park boundaries, a fact which would determine both the relevant agency that might be responsible and the rule for evaluating its responsibility. Whether inside the park or on the highway, your injury occurred on public property and is therefore subject to the “dangerous condition of public property” doctrine, codified in the California Government Code. This doctrine addresses injuries that happen on public property including sidewalks, highways, roadways and the like, and limits the situations under which the government may be held liable for any dangerous conditions.

If you were already within the park’s boundaries, your case would depend on application of the Government Code Section 831.4. Under this rule, the government is not liable for injuries caused by the condition of an unpaved road that is not a city, county, state or federal street or highway and provides access to fishing, hunting, camping, hiking, riding, including animal and all types of vehicular riding, water sports, recreational or scenic areas. Likewise a government entity is immune for injury on any paved trail, walkway, path, or sidewalk on an easement of way which has been granted to a public entity, which easement provides access to any unimproved property, so long as the public entity shall reasonably attempt to provide adequate warnings of the existence of any condition of the paved trail, walkway, path, or sidewalk which constitutes a hazard to health or safety.

In your case, if you were within the park when you were injured, it can be argued that the trail immunity does apply. If that be the case, then a counter argument can be made that the entity had an obligation to provide warning of the condition, since the ranger was aware that others had fallen there before.

If you were not within the park, Government Code Section 835 applies. Liability depends on whether an injured party can prove four elements. First, the relevant property must have been in a dangerous condition at the time of the injury. In your case, since you came upon a bump preexisting on your path, this element appears to be satisfied.

The second and third elements overlap considerably: they both require that, in addition to proving that the dangerous condition actually caused the injury, the injured party must prove that the risk of that type of injury was reasonably foreseeable to the government before the injury occurred. In your case, the bump in the road in fact caused your fall, and it was also reasonably foreseeable to the government that a bump in the road might cause someone to fall. The very reason that a bump in the road is considered dangerous in the first place is largely due to the increased risk of road users falling!

Fourth, an injured party must show that either: (a) the dangerous condition was created by a government employee’s negligent act or omission; or (b) the relevant agency had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. This element would likely be at issue in your case.

Government Code section 835.2 defines what constitutes actual and constructive notice. Actual notice is when the entity in fact already knew of the existence of the condition and knew or should have known of its dangerous character. Constructive notice, by contrast, requires the injured party to establish that the condition had existed for such a period of time, and was of such an obvious nature, that the public entity, in the reasonable exercise of due care, should have discovered the condition and its dangerous character. This takes into consideration whether or not the entity had an inspection system which would have, or should have, identified the condition.

In your case, the park ranger admitted that he knew, or had actual notice of, the bump in the road because you were not the first victim of its dangerous character. The determinative questions, therefore, would be: (1) whose jurisdiction the bump was in and, if not the park’s, were they also aware of the prior accidents; (2) how long ago the other accidents had been and when the relevant agency was made aware of their cause; (3) the practical factors involved in making the road safe; and (4) whether the intervening time was sufficient to have taken measures to protect against the dangerous condition.

Finally, an injured party must also defend against the government’s possible counterarguments. For instance, they must prove that the condition was not merely a trivial defect, that it presents a substantial risk of harm. Courts may decide as a matter of law that a condition is trivial and, in many cases, have done so. For example, a court held that a ½ inch deviation in sidewalk panels trivial as a matter of law. However, the only guidance given to the jury in deciding whether a condition rises to the dangerous threshold is rather circular and cryptic: a substantial risk of harm is one which is more than trivial. Therefore, without additional information as the size, shape, height, etc., it is impossible for me to opine in your case whether the bump in the road would be considered trivial or not.

An injured party must also rebut a government defense that the defect was “open and obvious.“ If a dangerous condition is so significant that it would be open and obvious to a reasonably attentive user, then the government can claim that the user was negligent for not seeing and avoiding the condition. In your case, I would need more information to determine whether the “open and obvious” defense would have merit, such as the time of day when this occurred, weather conditions, shadows from trees, and other factors that would have impaired your ability to appreciate the hazard before you hit it.

We have handled hundreds of dangerous condition cases over the years involving bikes, cars, muni trains, sidewalks, escalators, stairs, highways, city streets and the like. Because of the intricacies of the statutes, these cases are quite complex and should only be handled by trial lawyers with significant experience in this area. I suggest that you get photos of the area, including ones showing dimensions with a ruler in place, as well as lighting conditions at the time of your fall, and present those to a trial lawyer who can analyze whether or not you have a case worth pursuing.

2018

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2018

Avoiding Discrimination and Harassment at Holiday Parties

Enjoy the party. Hopefully, this year Dolan Law Firm will not receive one of those unfortunate calls.

This week’s question comes from Quinton in San Francisco, who asks:

Q: “I have been reading your columns on the electric scooters being rented in San Francisco. Is there one scooter company which, from a legal perspective, you believe is better to rent from?”

To Whom It May Concern:

Based on my review the following is my educated legal opinion about the dangers and legal violations which your products/services create.