End of Year Holiday Parties Have a Unique Potential for Harassment
Written By Christopher B. Dolan and Emile Davis
This week’s question comes from Matthew H. from San Francisco: My workplace is hosting a Holiday party and they are telling us to keep it work related and professional, if we decide to attend. I don’t plan on getting crazy, but can they tell us how to act outside of our work schedule? It seems a bit much.
Each year, the Dolan Law Firm receives multiple phone calls from people who have been the victim of harassment or discrimination at company sponsored holiday parties. The Holiday season is, once again, upon us, if everyone thinks ahead, many of the potential pitfalls can be averted and everyone can enjoy the party.
End of year Holiday parties have a unique potential for sexual harassment. Several factors combine to make sexual harassment a particular danger at these types of functions. 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 can also add to the tendency for people to stray from workplace norms. This is often exacerbated by the often-accepted use of alcohol at these events. This combination can be recipe for bad things to happen.
The good news is that employers can take steps to minimize the dangers of harassment. One thing an employer can do is include a copy of the workplace discrimination and harassment policies within any email or invitation, or a simple reminder that the policies in place at the worksite are applicable to the holiday party as well. Reminders that, although co-workers will be interacting socially, they must treat each other with the respect they have for one another in the workplace, can set clear guidelines for what is appropriate behavior. Archaic traditions that attempt to legitimize and trivialize harassment, such as kissing under the mistletoe, 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 over-drinking at a holiday party.
Making sure, prior to the event, that everyone has a safe way to get home is also a big help. It can save an employee from getting a DUI. And, importantly, it can ensure that an intoxicated worker is not coerced to accept a ride home from somebody who makes them uncomfortable or who has ill intent.
If the employer participates in 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. Joke gifts can be fun and funny, but can also cross the line into scary intentional harassment. For example, Dolan Law Firm proudly represented an African-American woman who was singled out to receive a particular gift at a holiday party- she was purposely presented a purse embroidered like a confederate flag which contained pictures of the owner of the company dressed as Donald Trump in front of a sign indicating that the south would rise again.
Another area of concern at holiday parties is religious discrimination and harassment. Not everyone celebrates Christmas. People of other faiths should not feel pressure to be involved in a religious based holiday, or to explain why they are not. We can all celebrate the end of the year, and most religions have some sort of a mid-winter holiday or day of remembrance.
When employers make the expectations clear and plans for the well-being of all the employees, it allows everyone to enjoy the Holiday party.
Each employee can also help. Everyone should have a pre-planned manner to travel home safely. 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 does not receive one of those calls.
New California Law Requires Public Schools and Colleges to Carry Free Menstrual Products
Written By Christopher B. Dolan and Katelyn P. Dembowski
Tess from Oakland asks: I saw on the news that California will now require public schools to carry menstrual products. Can you explain how they will implement this and when this will be available for students?
Dear Tess: Thank you for your question. This is incredible news in the advancement of safety and security for all those who menstruate.
On October 8, 2021, Governor Newsom signed AB-367, requiring California public schools and colleges to stock their restrooms with free menstrual products. The Menstrual Equity for All Act of 2021 (AB-367) builds off of a 2017 California law which required low-income schools in disadvantaged areas to provide students with free menstrual products. Specifically, the 2017 law required public schools from grade 6 through grade 12, that met a 40% pupil poverty threshold, to stock 50% of their restrooms with feminine hygiene products. The 2017 bill also prohibited the public schools from charging students for the menstrual products.
The Menstrual Equity for All Act of 2021 requires public schools with grades 6 through 12 to stock all school restrooms with an adequate and free supply of menstrual products in the women’s and all-gender restrooms, and at least in one men’s restroom. Schools are required to implement this for the upcoming 2022-2023 academic school year.
Additionally, the Menstrual Equity for All Act encompasses not only public middle and high schools, but all California State Universities and the community college districts within the state to implement this policy as well. The law also encourages, but does not require, the Regents of the University of California and private universities, colleges, and institutions of higher learning to also stock adequate supplies for all menstruating pupils.
Assemblywoman, Cristina Garcia, led the charge by introducing this life-changing legislation. “Our biology doesn’t always send an advanced warning when we’re about to start menstruating, which often means we need to stop whatever we’re doing and deal with a period,” she stated regarding the new legislation.” Just as toilet paper and paper towels are provided in virtually every public bathroom, so should menstrual products.”
Garcia, who crowned herself the “Period Princess,” gained inspiration for The Menstrual Equity for All Act from a 2020 bill passed in Scotland. Scotland became the first country to make period products available to anyone who needs them in all public places. The Scottish Parliament unanimously passed the bill, which is estimated to cost the country approximately $32 million annually. Worldwide, countries like Britain, Australia, Canada, and India have eliminated taxes on menstrual products and many are working towards having free products available in public places as well.
Unfortunately, access to free and sanitary menstrual products in public spaces is not the norm. According to Women’s Voices for the Earth, more than half the states still tax menstrual products as a “luxury” item. When Women’s Voices for the Earth began tracking menstrual health policies in January 2021, there were only about 20 bills across the United States. As of November 2021, there are now more than 140 bills in 37 states, including 8 bills introduced on the federal level, to advance menstrual equity by requiring free access to period products, eliminating tax, and requiring ingredient disclosures.
The Menstrual Equity for All Act is the latest step in California toward “menstrual equity” in the nation’s most populous state. California has a history of implementing laws that are later echoed in other states, and we can only hope that states will follow suit and continue to push for menstrual equity for all persons who menstruate. This year, California also eliminated a tax on menstrual products, which used to cost Californian’s more than $20 million annually.
It is extremely difficult to have access to safe and sanitary menstrual products for low-income individuals around the world. Over 1.8 billion people around the world menstruate. For millions, stigma, taboo, and a lack of access to sanitary products stop them from participating in work, school, and daily life during their periods. A study conducted earlier this year found that 1 in 4 teens who menstruate said they struggle to afford period products.
Period poverty causes many people to miss out on life and daily activities many of us take for granted. We hope this new law will help many people who menstruate feel more secure when their period comes along, and safer knowing they will have access to sanitary menstruating products.
Can I Order Alcohol to Go?
Written By Christopher B. Dolan and Megan Irish
This week’s question comes from Ramon P. from East Bay who asks: I have a favorite Mexican food place, and during the pandemic I was able to get their margaritas to go. It was a great treat amidst all the chaos that was the pandemic. Is that going to continue, and if so, now that so many people are back to work and, on the road, is it safe for us to do so?
Thank for your question, Ramon. Yes, people will still be able to order alcohol to go now and for the near future. Last month Governor Newsom extended the ability of restaurants to sell ‘to go’ alcohol, with food orders, through December 31, 2026, by signing Senate Bill 389. The bill was introduced by Napa representative, Bill Dodd and is ultimately stated in section 23401.5 of the Business and Professions Code. There are several safety mechanisms built into the law as well as an automatic deadline for the law to expire.
We all recognize that restaurants were hit hard when the pandemic shutdowns took effect. Countless small businesses were forced to figure out how to go from a thriving restaurant to a ‘to-go’ spot virtually overnight. Modifications to the rules, helped restaurants who were struggling to stay open. This ability to sell ‘to go’ drinks came from the emergency orders of the Alcoholic Beverage Control (“ABC”), which is the governing body that oversees restaurant and bar’s liquor licenses. The rule change came at the end of March, 2020, just as the pandemic was settling in on Californians. As alcohol sales can make up a quarter to a third of a restaurant’s revenue, the ability to make these sales was crucial for restaurants to make it through the pandemic.
While State Bill 389 requires a food purchase in order to sell “to go” alcohol to the customer, it allows patrons to continue to take home their favorite adult beverage with their takeout meal. Here are some important points to keep in mind:
Alcohol cannot be purchased alone. The law also requires the order to be picked up by the actual customer, and not a driver from a delivery service. As well, the restaurant selling the ‘to go’ beverages is required to have a liquor license, and the beverage must be sold in a container that is sealed. A customer must store the sealed containers in the trunk of the car, or otherwise away from the passenger compartment for the drive home. There are also size limitations on the drinks that can be sold. The cocktails cannot exceed four- and one-half ounces of liquor and wine is limited to three hundred and fifty-five milliliters. As well there is a two-beverage maximum per meal purchased.
The requirement that sales are coupled with meals means smaller establishments, think your favorite dive bar, cannot sell to go beverages if they don’t have an in-house food menu. The law has restrictions, requiring a “bona-fide” meal be purchased such that prepackaged products will not meet the requirements, and the food cannot be catered in, like with a food truck. Unfortunately, the small alcohol only spots will not be able to take advantage of this law to serve its cocktails to go. The local bars will remain limited to on premises consumption only.
While all of this is under the guise of keeping restaurants going, it also brings home a lot of safety concerns just like mentioned in your question. DUIs is the first thing that comes to mind. Distracted driving is also a concern. Will people abide by the rules to leave the alcohol in the trunk until they are safely home? If the container is sealed and transported home in the trunk, there is little concern the driver of the vehicle would become intoxicated or distracted by the beverages, but what if they do not follow the rules?
California hasn’t given up all its regulations, by any means. These containers are considered “open containers” which are regulated by the Business and Professions Code, which make it an infraction to possess or consume alcohol in public. So, it is imperative that the ‘to go’ drinks stay in the trunk until the customer is safely home. That protects everyone on the road from risks associated with drinking while driving, or distractions. Additionally, the twenty-one year minimum age requirement is still in full effect, and the purchaser must be able to show ID when they pick up their order. The 2:00 am last call is also still in effect, and no one is selling drinks between the hours of 2:00 am and 6:00 am. This law, permitting the sale of ‘to go’ drinks will automatically expire on December 31, 2026. This will give Californians plenty of time to evaluate if these rule changes are helping the restaurant industry, but also importantly, to confirm if alcohol ‘to go’ is safe for Californians.
Workers with Long COVID May Be Entitled to ADA and FEHA Job Protections
Written by Christopher B. Dolan and Mari Bandoma Callado
Sandra F. from Castro Valley writes: I work at a grocery store and contracted COVID-19 in July. I have since tested negative and have been told by my medical provider that I am outside the contagious window for spreading the virus. Unfortunately, some of my symptoms have not gone away, and have been told that I have “Long COVID”. I still have fatigue, shortness of breath, lightheadedness or dizziness when I stand, headaches, loss of taste and smell, and brain fog. My job requires me to stand and walk a lot but I am having a hard time doing that for long periods of time before feeling overly tired, having shortness of breath, or getting dizzy. I am worried that I will fall or hurt myself. I would like to ask my employer for accommodation but I am not sure how. Will I get in trouble for asking for a chair or a different position while I am recovering?
Thank you Sandra for reaching out. We are sorry to hear that you are still experiencing COVID-19 symptoms. As you mentioned, for some people, the symptoms from contracting COVID-19 do not go away and some studies indicate that 10% of COVID-19 patients may become long haulers.
Is Long COVID Classified as a Disability Under the ADA or FEHA?
The Americans with Disabilities Act (ADA) and California’s Fair Employment and Housing Act (FEHA) are laws that protect California workers from disability discrimination in the workplace. The ADA has classified Long COVID as a disability “if the person’s condition or any of its symptoms is a ‘physical or mental’ impairment that ‘substantially limits’ one or more major life activities.”
Under the FEHA, Long COVID is also classified as a disability but the FEHA requires only that a mental and physical disability “limit” a major life activity (not a substantial limit, but a limit).
In other words, having Long COVID does not automatically mean that a person has a “disability” under the ADA or the FEHA. Unfortunately, there is no bright-line test for determining whether someone is disabled for purposes of the ADA or the FEHA. It is necessary to make an individualized assessment to determine whether someone’s Long COVID condition or any of their symptoms (substantially) limits a major life activity. Major life activities include but are not limited to caring for oneself, eating, performing manual tasks, walking, standing, communicating and working. You described your symptoms as something that limits your ability to work, walking and standing. It is likely that you would be considered as a person with a disability under the ADA or the FEHA, entitling you to reasonable accommodations.
What are Reasonable Accommodations?
Both the FEHA and the ADA require most California employers to give employees with disabilities “reasonable accommodations”. Employers who are covered by the ADA or the FEHA are required to provide reasonable accommodations unless the accommodation would be too difficult for your employer to provide, or doing so would endanger the health and safety of others, or change your job in a significant way.
An accommodation is reasonable when changes are made so that the employee with a disability can perform the essential functions of the job. This can be changing job duties or work schedules, providing leave for medical care, device, or technology. Essentially, these are changes that would allow employees to do their job safely and well.
How to Request Reasonable Accommodations:
The first thing you should do is to inform your employer that you have Long COVID in writing.
Note: your employer may request medical records directly related to disability and need for accommodation to determine whether you are a person with a disability.
Once you inform your employer, they must not discriminate against you and begin engaging in a good-faith interactive process to explore potential reasonable accommodations to help you perform your job effectively and safely.
Your employer can provide many different reasonable accommodations. It is very important that you maintain communications with your employer so you can explore together the accommodations that are right for you and your job. For example, you could get access to a chair so you can sit down when you feel dizzy while performing your job or you could be temporarily reassigned to a different position or be given different tasks that would allow you to sit down more frequently. You could also request a leave of absence under the Family and Medical Leave Act or the California Family Rights Act, which would entitle you to up to twelve weeks of unpaid job-protected leave.
Retaliation is Prohibited:
Retaliation is anything that changes the terms and conditions of your employment. Examples of retaliatory conduct include but are not limited to the following:
- Increased harassment or verbal abuse for opposing unlawful conduct;
- Changing schedules to an undesirable shift;
- Assigning undesirable job duties;
- Demotion or denial of promotion;
- Relocation to an undesirable location;
- Reduction in hours or pay;
- Change in compensation plans or programs;
- Denial of training or opportunity for advancement;
- Discipline such as warnings, suspension or probation for trumped-up charges; and
An employer must not retaliate against an employee for requesting accommodations. As such, you should not “get in trouble” for requesting accommodations for your medical condition.
If you feel that you have been discriminated against because of your disability and/or medical condition, or retaliated against for standing up for your rights and/or requesting accommodations, contact the employment attorneys at the Dolan Law Firm.
The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.
Who Is Responsible For Discarded Needles In The Street?
Written By Christopher B. Dolan and Aimee E. Kirby
This week’s question comes from Nancy G. from San Francisco: Recently, I moved to San Francisco for a job opportunity. Like many people here, I sold my car and now get around by either walking, biking or taking Bart to work. While walking to and from work, I noticed many used needles on the ground. I know the City of San Francisco tries their best to provide services to those in need, I am worried about the increased number of uncapped and used needles on the ground. Although my shoes are protecting my feet, in the chance that I do not see a needle and it goes through my shoe, what are my rights or the rights of other people if we get pricked by a needle on the ground?
Thank you, Nancy, for reaching out and for your question. This issue is one that San Francisco residents and the community at large have been dealing with for a while now. San Francisco is known for our amazing people, culture, food, arts, cable cars, and bridges. But San Francisco is a major city in the world, and we have many city issues to deal with. In 2018 NBC did a report and looked at 153 blocks in San Francisco. They found discarded needles in 41 blocks and human feces on 96 of the city blocks. It appears that the problem has increased due to COVID-19. The concern with uncapped needles, as you are aware, is that they can be contaminated and can be a health hazard. The city of San Francisco and city leaders are in a constant struggle to maintain clean streets and free of discarded needles. The reality is that this is a very difficult job.
Our office has handled actions against hospitals for improper storage of needles, but your question about needles on the ground in public areas, is a very good question. The cause of action for having an unsafe premise would generally be one that would arise in Negligence. Negligence as a cause of action requires that the person sued:
- had a duty to do something,
- breached that duty by acting unreasonably,
- the Plaintiff who sued the person was injured, and
- the damages are casually related to the injury. Generally, business owners must keep the regress and ingress (exit and entrance) safe to their businesses.
Therefore, if the needle is close to any of these areas, and they were aware of this situation, you would arguably establish the first two prongs of Negligence. In much of San Francisco there are also local ordinances that make the business owners responsible for maintaining the sidewalk outside their property, which help you argue what is called negligence per se.
If your inquiry is how to hold the City of San Francisco responsible, that is a little more difficult. For a case against the City of San Francisco, the standard is different. You would have to allege that the needles make the walkway a Dangerous Condition of Public Property. For this cause of action, you have to prove the walkway was dangerous when used in a reasonable manner, that the City of San Francisco had knowledge of it, had the time and money to fix the condition, and you were harmed by the condition. Assuming you prove the needles constitute a Dangerous Condition, the City of San Francisco has a strong argument that they are doing everything possible to try to combat this problem.
A problem you have with both a cause of action against the property owners adjacent to the sidewalk and the City of San Francisco, is also what harm was suffered by you stepping on the needle. This may seem strange, because of course the emotional and physical response to stepping on a uncapped needle, not knowing what is in it, is extreme. Often times when a person is pricked accidentally, the needle is tested, the person is put on antiviral prophylactics and told to wait for the results of testing. The pain and worry someone has in this situation goes way beyond the momentary prick you feel. However, the law states that you may not recover damages, unless there was a physical harm caused by the needle. In the Macy’s California, Inc. vs. Superior Court case, a Plaintiff sought emotional distress damages for the fear she suffered after being pricked by an uncapped needle hidden in a returned jacket she bought. In finding that her case could not go forward, the court said:
The question before us is whether a routine needle stick constitutes harm for purposes of parasitic damages. We conclude it does not. In a routine needle stick, harm, if it occurs, takes place when a hazardous foreign substance, introduced to the body through the needle, causes detrimental change to the body. Macy’s California, Inc. vs. Superior Court, (1995) 41.Cal.App.4th 744.
Therefore, the courts are not ready to recognize the emotional response to this case, without an actual exposure to material within the needle that causes a detrimental change to the body. Thank you for your question. I am sure many people have thought about this when they see needles on the ground. Please continue to be safe and stay alert as you explore this wonderful city.
SENATE BILL 447: Expanding Non-Economic Damages in a Survivor Action for Decedent’s Pain and Suffering
Written By Christopher B. Dolan and Allison Stone
This week’s question comes from Kate A. from Oakland: I read that Senate Bill 447 was important to many people who may have a personal injury case. Why is Bill 447 significant and why does it matter?
Thank you for reaching out and for your question, Kate.
WHAT IS SENATE BILL 447?
Senate Bill 447 (“S.B. 447”) was just recently signed by Governor Gavin Newsom on October 1, 2021.
S.B. 447 changed California law to allow for recovery of a decedent’s non-economic damages for pain, suffering and disfigurement by a decedent’s personal representative or successor in interest after a decedent’s death.
Under California law, a personal injury action brought by someone who suffers a bodily injury can recover, among other damages, non-economic damages for their pain and suffering. By contrast, under the prior law in California, in an action brought by a decedent’s survivors for someone’s death from an injury, non-economic damages for their pain, suffering and disfigurement suffered before death was not recoverable. (California Code of Civil Procedure Section 377.34)
More specifically, California Code of Civil Procedure (“C.C.P.”) Section 377.34 previously limited recoverable damages to economic damages only if a plaintiff died before a judgment was entered. In other words, when a person dies from an injury, the decedent’s successors or heirs can file a survival lawsuit to recover damages that the decedent would have been entitled to from the time of the injury up until the time of their death. However, the damages recoverable in these cases was limited to economic monetary losses the person suffered after the injury but before their death. These economic damages that could be recovered included medical bills, lost wages and punitive or exemplary damages that the decedent would have been entitled to recover had the decedent lived. However, recoverable damages in such cases did not include damages for pre-death pain, suffering, or disfigurement.
However, S.B. 447 alters C.C.P. Section 377.34 and changes this rule. Now, it will no longer exclude non-economic damages and allows a decedent’s personal representative to recover damages for a decedent’s pain, suffering or disfigurement if the cause of action or proceeding was granted a preferential trial date before 2022, or if it was filed between January 1, 2022, and January 1, 2026.
Now that S.B. 447 has passed, C.C.P Section 377.34 includes language stating that: “in an action or proceeding by a decedent’s personal representative or successor in interest on the decedent’s cause of action, the damages recoverable may include damages for pain, suffering, or disfigurement if the action or proceeding was granted a preference pursuant to [C.C.P.] Section 36 before January 1, 2022, or was filed on or after January 1, 2022, and before January 1, 2026.”
WHY DOES S.B. 447 MATTER?
The effect of this change of law is that it adds an important category of damages that can be recovered thereby potentially increasing the amount of damages that can be rightfully awarded in survival actions.
For some background, S.B. 447 was introduced by California State Senator John Laird. Proponents of S.B. 447 supported it for multiple reasons. California was in the clear minority, as most other states in the country have allowed for recovery of non-economic damages for pain and suffering even after a plaintiff dies. In fact, California was only one of 5 states that precluded a decedent’s personal representative or successor in interest from recuperating non-economic damages. This prior legislation in California gave Defendants in lawsuits a reason and incentive to delay trials because they would not have to pay pain and suffering damages if a plaintiff in a lawsuit died before a verdict at trial could be reached. In other words, defendants would often take every opportunity to delay trials hoping that a plaintiff would die before trial. Further, supporters of S.B. 447 argued that limiting the damages was arbitrary and manifestly unjust and unfair. As such, S.B. 447 represents an important change in the California law.
HOW DOES S.B. 447 APPLY?
The new provisions of S.B. 447 will apply if: 1) the action is granted preference pursuant to C.C.P. Section 36 before January 1, 2022; or 2) the action is filed on or after January 1, 2022, and before January 1, 2026.
S.B. 447 applies to medical malpractice actions, but the MICRA cap still applies to non-economic damages for pain and suffering damages in a medical malpractice claim.
S.B. 447 does not impact elder abuse (EADACPA) cases (which permit for pre-death pain and suffering damages up to $250,000 in enhanced remedies actions). On the other hand, it does apply to other types of claims that may affect elders.
S.B. 447 applies to all other personal injury and employment cases.
HOW MIGHT S.B. 447 AFFECT ME?
If you have a case involving a plaintiff that is eligible for C.C.P. Section 36 preference, you and/or your attorney should consider applying for the preference as soon as possible including on an ex parte basis if possible, so that it is granted before January 1, 2022.
If you have a case that can wait to be filed until after January 1, 2022, you and/or your attorney should consider that option.
AN IMPORTANT NOTE ABOUT S.B. 447: A plaintiff who recovers damages for pain, suffering, or disfigurement between these new specified dates must provide the Judicial Council with a copy of the judgment, consent judgment, or court-approved settlement agreement entitling the plaintiff to the damages and a cover sheet detailing the date the action was filed, the date of the final disposition of the action, and the amount and type of damages awarded, including economic damages and damages for pain, suffering, or disfigurement. The reason for this requirement is that on or before January 1, 2025, the Judicial Council must submit a report to the legislature detailing the information received for all judgments, consent judgments, or court-approved settlement agreements obtained from January 1, 2022, to July 31, 2024.
You can find S.B. 447 here: https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220SB447
In The Zone of Danger: Witnessing a Loved One suffer Severe Injuries
Written by Christopher B. Dolan
This week’s question comes from Travis from the East Bay:
My wife of 43 years and I were crossing the street in San Francisco. She was just a few steps ahead of me when a car ran the red light and hit my wife! The vehicle struck her with such force that she became airborne before collapsing on the ground. I was stunned and horrified. She was lying there, and for a minute, I thought she might have died. She had lost consciousness and was not moving. Fortunately, she lived, but she sustained two fractured legs and a significant head injury. She had to stay in the hospital for a few weeks. I thought I had lost her. She is the love of my life, and the thought of losing her was terrifying. Watching her get hit like that was incredibly scary- I think I stopped breathing. Since then, I have become increasingly anxious and unable to sleep as the image of her getting hit is on constant replay in my mind. I’ve had to seek therapy. I know she can file a lawsuit for her injuries, but what about me?
I am so sorry this happened and that you had to witness it. It appears that you are suffering from emotional distress as a result of this incident. You certainly do have a claim for negligent infliction of emotional distress. In California, the law of Negligent Infliction of Emotional distress can flow from two different theories: Bystander Theory and Direct Victim Theory. The Bystander theory requires that the plaintiff contemporaneously observe the injury-causing event. Thing vs. Chusa (1989) 48 Cal.3d 644. The difference between the bystander and the direct victim cases is that the direct victim cases seek emotional distress damages based on the breach of the duty owed to the plaintiff that is “assumed by the Defendant or imposed on the defendant or imposed on the defendant as a matter of law that arises out of a relationship between the two.” Marlene F. v. Affiliated Psychiatric Medical Clinic, (1989) 48 Cal. 3d 583, 588, 257.
You could recover under the bystander theory. To prove negligent infliction of emotional distress as a bystander, you must show: 1) that you are closely related to the victim, 2) the defendant’s conduct negligently caused injury or death to the victim, 3) that you were present at the scene of the injury (“zone of danger”) when it occurred and were aware that the victim was being injured, and 4) as a result of the injury, you reasonably suffered severe emotional distress beyond that which would be anticipated in a disinterested witness. Dillon v. Legg (1968) 68 Cal.2d 728.
In your case, you witnessed your wife suffer life-threatening injuries as a result of the negligent driver who ran the red light. You were in the zone of danger as you were present when the collision occurred and are experiencing severe emotional distress as a result. Thus, you can recover any medical bills, bills for psychological counseling, lost wages, and pain and suffering because of the accident.
We hope you and your spouse continue to get better.
Rice v. City of Roy Update: Additional $793,000 in Attorneys’ Fees
On September 23, 2021, a Federal Jury, In Tacoma, Washington, unanimously found that City of Roy Police Officer, Christopher Johnson, violated the Fourth Amendment rights of David Rice and Seth Donahue, when he shot them as they were traveling, unarmed, in their UTV on the BNR rail tracks inside the City of Roy.
Now, the city of Roy has withdrawn its attempt to appeal and agreed to pay an additional $793,000 in attorneys fee’s and costs. Total payout will now be $4,050,000.
Congratulations to Chris Dolan, Jeremy Jessup and their legal teams for an amazing victory!
Read the full story via Seattle Times: