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.
