Identifying liability in an officer-involved accident

This week’s column focuses on a recent incident about which we have received a number of inquiries. On Sept. 18, a Redwood City police officer en route to a reported crime scene lost control of his patrol vehicle and struck a pedestrian standing in the median of El Camino Real, as well as two other cars approaching from the opposite direction. The pedestrian was hospitalized with critical injuries. Readers have reached out wondering who bears responsibility when an officer-involved accident results in serious injury.

In general, the California Vehicle Code (CVC) regulations apply to all drivers, whether or not they are acting in a law enforcement or other public capacity. However, an exception provided in CVC Section 21055 applies when an authorized emergency vehicle is either: (1) responding to an emergency call or fire alarm; (2) engaged in rescue operations; or (3) in immediate pursuit of an actual or suspected violator of the law. In any of these situations, emergency vehicle drivers are required to warn the public with red lights visible from the front of their vehicles and, when reasonably necessary, activation of sirens. This exception is designed to ensure emergency vehicles a clear and speedy pathway when the risks to the public from an emergency outweigh the risks to the public from the emergency vehicle’s haste.

Municipalities may also establish “general orders” governing local practices for handling emergency vehicle responses in line with CVC requirements. For instance, Redwood City Police Department’s General Order 316.4 further requires officers to “reduce speed at all street intersections to such a degree that they shall have complete control of the vehicle” and to “elect to respond to the call without the use of red lights and siren at the legal speed limit” where the officer judges that violating traffic laws would present an unreasonable risk given present road and traffic conditions.

When an officer is sued for personal injuries or property damage resulting from a vehicular accident, CVC Section 21055 may be raised as an affirmative defense, meaning an officer may avoid liability if they can prove every element of the exception. Such a legal determination depends heavily on the facts of a particular case. However, the defense will generally not apply if the officer: (1) neither received information to justify an emergency response nor reasonably determined from observation that such a response was necessary; (2) failed to warn the public by illuminating a red light visible from the front of their vehicle and, if reasonably necessary, activating a siren; (3) failed to drive with due regard for public safety given the extraordinary circumstances; or (4) exercised their emergency privileges “arbitrarily,” which courts have interpreted to mean acting either with knowledge that serious injury will probably result or with wanton or reckless disregard of the possible consequences.

In the case of the Sept. 18 crash, it appears that the officer was dispatched pursuant to a legitimate emergency, namely reports of a home invasion. However, the affirmative defense still may not apply if a court finds any of the other three conditions to exist. For example, it is not clear from available video footage whether the officer’s vehicle was operating the minimum required forward facing red light, or siren if conditions are found to warrant one. It is also unclear why the officer lost control of the vehicle and, given such a result, whether he would be found to have been driving with due regard for public safety. The narrative initially offered by the Redwood City Police Department relies on a finding of wet, slippery road conditions. However, as stated above, the Department’s own General Order requires officers to use sound judgment, including taking road conditions into account, when considering their manner of response to an emergency. The Department has turned investigation of the accident over to the California Highway Patrol.

Employers are generally liable for the negligence of employees acting within the “scope and course” of their employment. Therefore, if the officer is found to have acted negligently, the city of Redwood City can be held responsible for any injuries caused and forced to pay for legal damages. However, if a court finds the officer to have acted with knowledge or wanton and reckless disregard that serious injury will probably result, this level of culpability may be found to be outside the “scope and course” of his employment, relieving the city of employer liability.

The city may also be found liable for the legal damages involved in this accident if it is found to have resulted from a vehicle defect and a court finds the Department failed to properly maintain, inspect, or repair the patrol car. If the car is found to have been defective upon purchase, the manufacturer and dealer may also bear responsibility under a products liability theory.

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A balancing act for employers: service animals and allergies in the workplace

This week’s question comes from Brian T., who asks:

Q: I work in an office with a fairly liberal policy on pets in the workplace. While I love animals, I am unfortunately allergic to certain types of longhaired dogs and cats. A co-worker of mine, who has a physical disability, brings his service dog to work every day to help him navigate around the office. The dog is very sweet, but I often find myself having an allergic reaction when I have to interact with this co-worker or walk by his office. Although I want to be sensitive and respectful of my co-worker’s needs, I also need to be able to work without having a serious allergic reaction. What are my options?

A: Thank you for your question, Brian. You raise a number of valid concerns and, under both California and Federal law, your employer will have to negotiate them with care. First, it is important to note that it sounds like your co-worker is utilizing a service animal, rather than an emotional support animal. Under the Americans with Disabilities Act (ADA), a service animal is defined as a dog that has been individually trained to perform tasks for an individual with a disability. On the other hand, federal law defines an “emotional support animal” by exclusion: as any animal used to assist, support, or provide service to a person with disabilities, but which does not meet the stricter definition of a service animal.

Both the ADA and the California Fair Employment and Housing Act (FEHA) prohibit discrimination on the basis of disability in employment and housing matters. As part of their anti-discrimination requirements, both the FEHA and the ADA mandate that employers must extend reasonable accommodations to qualified employees with disabilities in order to allow them to perform the essential functions of their job, so long as doing so does not pose an undue hardship on the employer. Both laws regard bringing a service animal to work as a possible reasonable accommodation under appropriate circumstances.

In the case of your co-worker, it sounds like he uses a service animal because his job requires him to get up and move around the office and his own physical limitations make doing so difficult. Therefore, unless having the animal at work presents undue hardship, your employer is likely required by law to allow him to utilize a service animal at the office as a reasonable accommodation to aid in his mobility.

Adding the concern of your allergies into the mix, however, makes things more complicated.  Having a serious allergy that prevents or hinders you from performing the essential functions of your job is also a valid concern, and could potentially qualify as a disability deserving of reasonable accommodations. As such, your employer will likely have to perform a balancing act in order to make sure that all employees with disabilities are treated fairly under the law.

The law requires your employer to engage in a good faith, interactive process with you, as well as your co-worker, to arrive at a lawful solution that works for both parties. This will likely require some creativity and flexibility. The particular accommodations discussed during the interactive process will depend on the severity of your allergies, the extent of your co-worker’s need for the specific accommodation of a service animal, and the unique environment in which you both work.

One solution might involve eliminating in-person contact between you and the service animal by simply relocating your workspace to the opposite side of the office and arranging to use separate bathrooms and common spaces. If physically separating you from your co-worker would create an undue hardship, as may be the case in a small office environment, your employer should still make reasonable efforts to minimize your exposure. This could mean adjusting each of your work schedules, temporarily removing the service animal at any time when you and your coworker have to attend meetings together, providing options for one or both of you to work remotely, and/or allowing you to wear protective equipment such as an allergen mask.

If your allergies are so severe that even working in the same environment as the service animal present serious health risks for you, speak to your employer about these concerns immediately. To ensure that your legal rights are fully protected, you should contact an employment attorney, such as those at the Dolan Law Firm PC, to help you navigate the situation.

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C.R.O.W.N. Act Natural Hair Grooming Protections in the Workplace

This week’s question comes from Maya in San Francisco, who writes:

Q: Dear Chris, I interviewed for a receptionist position at a San Francisco company. The person interviewing me offered me the job, but said that I would need to conform to the company’s “grooming policy,” which states “hairstyle should reflect a business and/or professional image.” When I said that I would prefer not to cut my dreadlocks, she rescinded the job offer. I told her that I do not understand what how I wear my hair has to do with my ability to do the job and she told me that “dreadlocks are simply not professional.” Isn’t this discrimination?

A: Thank you for your question, Maya, and I’m sorry for the frustration you’ve experienced in the job market. It certainly does sound like your situation could qualify as unlawful discrimination, under not only the general anti-discrimination provisions of California’s Fair Employment and Housing Act (FEHA) but also under the newly-enacted Create a Respectful and Open Workplace for Natural Hair Act (the “C.R.O.W.N. Act”). When the C.R.O.W.N. Act was signed into law in July, California became the first state in the nation to legally protect people in workplaces, as well as K-12 public schools and charter schools, from discrimination specifically based on their natural hair.

Under FEHA, employers have long been prohibited from implementing dress or grooming policies that adversely impact one race more than another. By stating that “dreadlocks are simply not professional,” without any rational justification related to your ability to perform the job, the interviewer appeared to indicate that the company’s “grooming policy” establishes different employment standards based on race by prohibiting one of various natural and protective hair styles available to black employees. An arbitrary employment policy like this would likely be deemed contrary to FEHA, even before the C.R.O.W.N Act takes effect on Jan. 1, 2020.

However, any legal debate that might have been made previously on this issue will soon be rendered moot when the C.R.O.W.N. Act supercedes the more general existing anti-discrimination policies to expressly provide that hairstyles fall within the definition of race. The C.R.O.W.N. Act expands statutory protections by amending the FEHA and the California Education Code to define “race or ethnicity” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”

When it takes effect next year, the C.R.O.W.N. Act will prohibit employers from enforcing purportedly “race neutral” grooming policies that restrict natural hair styles, such as Afros, braids, twists, cornrows and dreadlocks, that that disproportionately impact employees of color. The C.R.O.W.N Act expressly defines “protective hairstyles” as including, but not limited to, “braids, locks, and twists” and makes clear that traits historically associated with race, such as hair texture and hairstyle, should be protected from discrimination in the workplace and in schools. The C.R.O.W.N. Act recognizes that “[p]rofessionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.”

You should note that an employment discrimination claim must be filed with the Department of Fair Employment and Housing (“DFEH”) within one year of the unlawful event or your rights to seek recovery may be barred. The DFEH’s phone number is 1-800-884-1684 and their web site is: http://www.dfeh.ca.gov/. In addition, it is always a good idea to contact a trial lawyer with knowledge of employment laws to discuss your case.

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What responsibility do schools carry for cyberbullying?

This week’s question comes from Michelle P., who writes:

Q: “My daughter is a sophomore at a high school within the San Francisco Unified School District. Like many kids her age, she has a smartphone, which helps the family stay in touch but also allows her to interact regularly online with other kids from her school, some of whom can be very nasty to her, even threatening. She doesn’t feel like she has any choice but to engage with them but this cyberbullying has made her so anxious she can’t focus on her schoolwork. Does her school or SFUSD have any responsibility to intervene when their students are harming each other online?”

A: Michelle, you are right to be concerned and in your intuition that the school should be involved. Cyberbullying has become increasingly common over the past decades and can have tragic, even deadly, consequences.

The State of California recognizes all bullying as a form of violence that involves a real or perceived imbalance of power between individuals or groups of children and results in unprovoked, intentional, and usually repeated physical, verbal, or emotional abuse. Bullying may also manifest as sexual harassment, hate violence, and other severe or pervasive behaviors that create an intimidating or hostile educational environment. California has also specifically recognized the increasing prevalence of cyberbullying, defined as repeated or recurring harm willfully inflicted through electronic media, which can be just as detrimental to students’ wellbeing as face-to-face conflict.

Amendments to California’s existing Safe Place to Learn Act and Interagency School Safety Demonstration Act became effective on Jan. 1, 2019 and required all local educational agencies to adopt procedures for preventing acts of bullying, including cyberbullying, by the end of this calendar year. In May, SFUSD complied with this requirement by adopting Board Policy 5131.2: Bullying and Administrative Policy 5131.2: Bullying. SFUSD policy specifically prohibits transmission of communications or posting of harassing messages, direct threats, or other harmful texts, sounds, or images on the Internet, social networking sites, or other digital technologies, as well as assuming another person’s identity through an electronic account in order to damage that person’s reputation. SFUSD authorizes school administrators to intervene even if the cyberbullying is conducted off campus or outside of school hours in any case where the behavior is impacting students’ learning environment.

Your daughter’s school should have notified all families of the school’s reporting and investigation process. Any student, parent, guardian, or other individual who learns of school-related discrimination, harassment, intimidation, or bullying should immediately contact the school’s principal, or any other staff member. Any school employee who learns of cyberbullying is also required to report the activity to the school principal, who must in turn notify the district compliance officer and inform the target student of their right to file a formal written complaint with the district Office of Equity. Cyberbullying victims are encouraged to save and print relevant electronic or digital messages for aid in investigation of the matter. Complainants names will be held confidential to the extent possible and district policy prohibits any form of retaliation against any individual who files such a complaint.

The school principal is first required to determine whether interim measures are necessary to address the effects of the reported bullying pending investigation and final resolution. After a thorough investigation, including interviews of the accused student and any other witnesses, the principal will determine whether the matter may be resolved through “restorative practices,” a process similar to mediation. If further action is needed, a school may discipline the offending student and, if appropriate, request any applicable social media sites to remove offensive online content and/or suspend the offender’s user privileges.

Pupils who engage in discrimination, harassment, intimidation, bullying, or retaliation in violation of law, Board Policy, or administrative regulation may be referred for counseling, behavioral intervention and education, suspension, and/or expulsion. Any employee who permits or engages in prohibited discrimination, harassment, intimidation, bullying, or retaliation shall also be subject to disciplinary action, up to and including dismissal.

If you are unhappy with SFUSD’s resolution of the matter, state law allows 15 days to appeal the district’s action to the State Superintendent of Public Instruction. After sixty days following the filing of an appeal, you may seek civil remedies through the courts, seeking damages and injunctive relief (orders from the court to stop or change certain behaviors/policies).

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Drivers, slow down for students

This week’s question comes from Becky M. in SoMa who asks:

Q: “When I was dropping my daughter off at elementary school last week, I drove up the street next to the school. It’s a narrow road with one lane in each direction. I was waiting in line for curbside drop-off when a yellow schoolbus stopped in front of us and turned on its red flashing lights. I stopped behind the bus and waited, even though I could have passed the bus in the lane for oncoming traffic. All the other cars behind me started honking and passing the bus on the left side. I was in a rush to drop off my daughter, but I waited for the lights to stop flashing before I went ahead and dropped her off. I thought I was supposed to wait behind the bus, but no one else was waiting, did the law change?”

A: Thank you for your question, Becky. The law has not changed. You did the right thing by stopping for the bus and remaining stopped until the bus turned its flashing lights off. California Vehicle Code section 22454(a) requires “[t]he driver of any vehicle, upon meeting or overtaking, from either direction, any schoolbus equipped with signs as required in this code, that is stopped for the purpose of loading or unloading any schoolchildren and displays a flashing red light signal … visible from the front or rear, shall bring the vehicle to a stop immediately before passing the schoolbus and shall not proceed past the schoolbus until the flashing red light signal … cease[s] operation.”

Simply put, this means that when the bus stops and flashes its red lights, located at the top front and back of the bus, you must bring your car to a stop, even if you are traveling in the direction opposite the bus. You must stop with enough clearance to allow for children to safety cross the street in front of the bus. You also must stay stopped until the bus turns off its red flashing lights, even if you do not see any children crossing the street. While it might seem inconvenient to stop and stay stopped for such a long time, this is an important, life-saving rule. When the bus is stopped with its red lights flashing, it means that children are either getting on or off the bus and are likely to be crossing the street. Because the bus is large and the children are small, your view of the children crossing may be obstructed.

The consequences for breaking this law can be astronomical — your careless decision could take away a precious, young life. Even if you are lucky enough not to harm a child while passing a stopped bus with flashers activated, your selfish act can earn you a $1,000 fine and a 1-year license suspension.

With school back in session for Fall, it is a good time to remind ourselves to slow down, be patient, and drive safely. Here are a few good rules of thumb to help keep school children safe:

  • School Zone Speed Limits: Drivers should always observe reduced school speed limits, typically 25 mph or even as low as 15 mph. Watch out for school crossing guards and follow their instructions.
  • Watch for Pedestrians and Bicycles: Drivers should be extra vigilant in keeping an eye out for children walking, biking, or scootering to school. Young children riding bikes or scooters can be unsteady, unpredictable, and are often inexperienced.
  • No Distractions: Keep your eyes on the road rather than on your phone or any other device. Taking your eyes off the road for just two seconds means that you may not see a child crossing in front of your car.
  • Talk to your Child: Teach your child to be safety-conscious. Remind your child to keep a proper lookout for cars in the roadway, be alert while crossing the street, and make sure that drivers see you/acknowledge your crossing. Also, remind your child to be aware of cars entering driveways or backing up.

If you were injured in an accident caused by a careless driver, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages include things like pain and suffering, physical impairment and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

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