The Food and Drug Administration (FDA) recalled three eye drop brand linked to serious vision loss, death and serious infections. See list of brands that they are recommending you stop using: Brands to Stop Using.
For additional recalls see FDA List.
At the Dolan Law Firm, our personal injury lawyers fight for our clients. We have the experience and resources to get results in your case. Contact our office to schedule a free evaluation of your case.
This week’s question comes from Mark in Oakland, who asks: I read your article last week on Store-front crashes and was surprised by the 7-Eleven statistics of car crashes into the store, one per day! A few weeks back, when it was raining, my friend and I were inside the convenience store, and he slipped. His feet rose in the air, and he landed on his lower back. He seems to be okay. Are business owners responsible for slip-and-falls on rainy days?
Hello Mark,
Thank you for your question. With California’s unprecedented rain, your concerns about slip-and-fall as a business invitee are not without.
A “slip-and-fall” is a type of California premises liability claim that occurs when someone falls and sustains an injury due to the owner or operator’s negligence. Not all falls lead to slip-and-fall liability. Slip-and-fall accidents regularly lead to broken bones, traumatic brain injuries, sprains and strains, scars, and lacerations. Slip-and-fall accidents can even cause death in the most severe cases. Slips, trips, and falls cause over 700 fatalities and other severe injuries yearly and are responsible for over 50% of all accident-related deaths. According to the CDC, one of every five slip-and-fall accidents results in a broken bone or head injury.
There are also different considerations to make depending on what caused the slip-and-fall to occur. Common causes of slip-and-fall liability in California include:
In California, the law of premises liability places on property owners and managers a duty of care to:
The duty of care requires people who own, possess, or control property to reasonably maintain their property, inspect for and repair potentially dangerous conditions, and give adequate warning when ownership still needs to correct the dangerous condition. The general rule is that to impose liability for injury to an invitee due to a dangerous condition, the condition must have been known to the owner or occupant or have existed for such time that it was the duty of the owner or occupant to have known of it.
But who do you file a claim with when such an incident occurs? Different insurance policies are applicable depending on when and where the slip-and-fall occurred. For example, if you slipped and fell in a store or other business, you can file a claim under the company’s commercial liability insurance coverage. If you tripped and fell at a neighbor’s house, you may be able to file a claim under their homeowner’s insurance policy. If you slip-and-fall while in the course and scope of employment, you must file a worker’s compensation claim through your employer.
We all must watch where we are going. Although there may be liability on a property/business owner for slips-and-falls, that may not always be the case. Businesses often argue that a reasonable person has the wherewithal to appreciate the increased risk of slip-and-fall during rainstorms. Nevertheless, that same logic is used to show notice to the business of the need to maintain the areas that track in the most rain due to customer use.
In Scott v. Alpha Beta Co., 104 Cal. App. 3d 305, 163 Cal. Rptr. 544, 20 A.L.R.4th 511 (2d Dist. 1980), an action for damages sustained by a business invitee who, on a rainy day, slipped and fell in the grocery store immediately after stepping off of a rubber mat. The court found the grocery store 60% negligent and the injured party 40% negligent. It held that the evidence was sufficient to allow the jury to conclude that the grocery store knew of the slippery condition of its floor and had failed to take reasonable precautions. Noting that it was raining at the time of the accident and had been doing so all day and that the grocery store had approximately 2,000 customers per day, the court explained that it knew or should have known that the floor would become wet.
This case highlights the responsibility of businesses to keep patrons reasonably safe from harm but also demonstrates that courts do consider the negligence of the patron when evaluating the extent of the owner’s liability. Businesses will use many defenses to fight even the most obvious liability against them. That is why it is essential to immediately contact an attorney who has experience preserving and gathering evidence that is important to prove your claim.
The city of San Francisco added street barriers along five blocks of Capp St from 18th to 22nd to deter alleged prostitution. This action may violate local statues and city fire codes. The fire department is worried about lack of access that could delay emergency response times.
In an interview with ABC news, Chris Dolan said:
“The fire code specifies the type of access that fire trucks need to have for public safety. The vehicle code allows local governments to put limitations on traffic movement based on crime. So both of these have an effect. They need to be balanced.”
“A public process including consultation with the fire department and other safety forces,” should be held in a public hearing. Dolan said “Many of the residents may have unique needs, for example, a resident may be disabled and may need access to their garage.”
Local city and emergency department need to come together to balance the needs of the community.
See full ABC News story here:
This week’s question comes from Rebeca from San Jose, who asks: Two weeks ago, I heard a loud commotion and went outside to see that a car had crashed into the corner convenience store. It went right into the glass front of the building, and only the trunk is visible from the sidewalk. Today it is all boarded up, and the store is closed. Has this ever happened before?
Dear Rebecca,
Unfortunately, yes, these kinds of crashes happen far more frequently than you can ever imagine, often causing injuries in addition to the apparent damage to the building. Who is responsible for these damages? The driver of the car? Surely. But is the store also responsible? Often, yes. When someone is hurt in a store front crash, they may be able to bring a claim for their injuries based on negligence and premise liability against the store.
Generally, in a negligence case, the injured plaintiff must prove the defendant has a duty, the defendant breached their duty, the breach caused the plaintiff an injury, and the plaintiff has suffered damages related to that injury. Generally, in a premise liability action, the plaintiff must show that a defendant owned, leased, or controlled the location of their injury, that the defendant was negligent in the use or maintenance of the property, that the plaintiff was harmed, and that the defendant’s negligence was a substantial factor in causing the plaintiff’s harm.
From the local coffee shop to the neighborhood grocery store and everything in between, cars can drive into the store and injure pedestrians, store patrons, and employees. Often the layout of the parking spaces outside the store leads to the vehicles’ intrusion into the building. When the parking spaces are placed directly in front of the store, which is perpendicular to the store, and the driver makes an error by pressing the gas instead of the brake pedal instead of coming to stop, the vehicle accelerates toward the building. A crash is imminent If the parking lot and storefront design do not have any barriers to stop the vehicle’s entrance onto the sidewalk and into the store. The crash can be minor and cause only property damage to the building, like a few broken windows, or it can be catastrophic and cause injury or even death to the pedestrians on the walkway, the patrons, or the employees inside the store.
This kind of “storefront crash” is a known risk to stores, and there are numerous ways to protect the storefront and keep patrons and pedestrians safe. For example, owners can install bollards to prevent a car from intruding into the space. A bollard is a slim, solid pillar that is seated into the ground. They are often about four to six inches in diameter and come up to about three or four feet. They are usually yellow to increase their visibility. They do not impede the flow of foot traffic and can easily be ADA-compliant. Also, placing attractive flower boxes with appropriate underpinnings across the front of a store can offer protection without impeding on a patron’s access to the store. Either of these or one of the numerous other options would protect the sidewalk area and storefront from any vehicle trying to park in the perpendicular stall that inadvertently jumps the curb and approaches the storefront.
The frequency of these types of collisions is staggering. Recently made public statistics demonstrate that the popular convenience store 7-Eleven has 1.14 store front car crashes a day, causing some personal injury or property damage. The now public data also shows repeated hits at the same stores. Some were hit three, four or five times. There is even evidence that one store was hit thirteen times! The recently released data also shows that between 2003 and 2017, there were 6,253 storefront crashes at 7-Eleven stores across the country in fifteen years. More public data about 7-Eleven shows another 1581 storefront crashes between 1991 and 1996.
These types of crashes happen. It’s a known hazard of stores with parking stalls perpendicular in the front of the store. And the store is oftentimes in the best position to prevent the injuries and damages associated with them. Hopefully, your local store will be repaired quickly, and no one inside was hurt.
As we culminate Black History Month, we would like to honor two trailblazing black female attorneys that contributed to the history of the legal practice in the State of California:
Annie Virginia Stephens Coker was born in Oakland, California. She attended public schools in Oakland. She received her bachelor’s degree in 1924, as well as her law degree from the University of California, Berkeley, in 1929. Coker became the first black female attorney in the State of California when she passed the California State Bar in 1929. Unfortunately, the doors of most law firms in California were not open to black attorneys in the early 1930’s. As such, Coker moved to Alexandria, Virginia, where she maintained a private law practice. Coker eventually returned to California and worked for the State Office of Legislative Counsel in Sacramento.
Schiesl, M. (2015, May 06). Annie Virginia Stephens Coker (1903-1986). BlackPast.org.
Born in Palestine, Anderson, Texas. Louis was the first black woman to practice law in the state of California. According to the California State Bar, Louis was admitted to practice law in 1943. Louis made a name and a place for herself in a white man’s world as a criminal defense attorney. “She was a tigress in the courtroom,” Sherman Smith, a then retired Los Angeles judge said in November of 1990. Louis became widely known when she married famous boxer Joe Louis.
February is #BlackHistoryMonth, a time to acknowledge and celebrate the contributions and achievements of African Americans, despite the history of racism and oppression in our country, and the ongoing and urgent battle against it. The Dolan Firm is honored to spotlight and support the Charles Houston Bar Association (“CHBA”).
The CHBA was founded in 1955 and named in honor of the legendary civil rights attorney, Charles Hamilton Houston. Commonly referred to as “The Man That Killed Jim Crow”, Houston was the first black student to be elected to the editorial board of the Harvard Law review in 1919. Houston became the first general counsel for the National Association for the Advancement of Colored People (NAACP) and formulated the foundational legal arguments challenging the “separate but equal” doctrine nearly two decades before Brown v. Board of Education was decided before the Supreme Court.
In December 2022, the Dolan Law Firm was excited to attend CHBA’s 67th Annual Gala and Awards Ceremony, where our firm was honored with a Millennium Sponsor Award. Part of the Dolan Law Firm’s sponsorship funds went directly to a Diversity, Equity, and Inclusion scholarship recipient. The Dolan Law Firm is excited to play an ongoing role in helping advance the mission of CHBA. We encourage everyone in our legal community to explore the possibility of supporting this incredible organization and highlighting its many accomplishments.
This week’s question comes from Kathy J. in the Sunset District, who asks: After this year’s stormy winter, new potholes seem to be appearing daily. Over the weekend, I was driving to my friend’s house when I hit a pothole in the road. The pothole caused me to lose control of my vehicle, and I eventually crashed into a tree. The impact destroyed the front of my car and deployed my airbags. I vaguely recall the police officer and ambulance arriving. At the hospital, I was diagnosed with facial bruising, a concussion, and a broken wrist. I am unsure what my next steps are, as the accident did not involve another vehicle, and I was not at fault for crashing into the tree. However, I now have large medical bills, and my car has significant property damage. Who is responsible if a pothole leads to an injury?
Dear Kathy,
That is a great question. Potholes are more prevalent after heavy rains as the precipitation saturates the ground and causes the asphalt to break up. Government entities such as cities, counties, the State, or the Federal government own public roadways. Therefore, the first step is determining which entity owns the road. A government entity, like any other property owner, is responsible for maintaining its premises in a reasonably safe condition. It is important to note that “reasonably” does not mean in perfect condition or that maintenance needs to occur instantaneously. However, showing that the responsible government entity had notice of the pothole is essential in establishing liability.
Many cities and counties have online portals or phone numbers where residents can report dangerous roadway conditions such as potholes. For example, in San Francisco, the SF311 Mobile App can be used to submit service requests. For this reason, it is important for anyone who comes across a pothole, whether you are a driver or a pedestrian, to file a service request notifying the government entity of the roadway condition.
California Government Code §§ 830 et seq. lays out the rules for liability stemming from any “dangerous condition of public property,” defined as a condition that creates a substantial risk of injury when such property is used with due care in a reasonably foreseeable manner. Cal. Gov. Code § 830.2. Special rules apply when filing a claim against a government entity. The injured individual must file an administrative claim before filing a personal injury lawsuit against a government entity. It is important to note that there is a limited time in which you can bring an administrative claim against a government entity. Under California Government Code Section 910, you must file a claim against the government entity within six (6) months after the event or occurrence. Be sure to file the claim with the appropriate government office or agency. Further, it is equally important that you use the claim form of that government agency when filing a claim, as section 910 prescribes a list of the required information you must provide in your claim. Otherwise, the claim may be deemed invalid.
While the government entity can be held responsible for dangerous conditions on its roadways, it is critical to note that a non-trivial dangerous condition does not mean the city is liable for damages. Further, when a claimant can prove the statutory requirements, the government entity may still raise several defenses to defeat liability. It may argue that it exercised due care by posting warning signs to prevent vehicles from hitting potholes or claiming that it is “open and obvious”; therefore, no warning signs were necessary.
Claims against any government agency present their unique challenges. There are strict time limits and different procedural rules that apply to government claims. For this reason, it is important to retain a skilled trial attorney to assist you in pursuing your government claim and ensure you obtain the compensation that you deserve.
This week’s article comes from Ayden from San Francisco, who asks: During the recent atmospheric river storms, branches from my neighbor’s tree fell into my yard, causing some damage to my gutters. I don’t know what to do or how to handle this situation. Will I have to pay to repair the gutters, or does my neighbor have to pay to have them fixed for me?
Ayden,
I am sorry to hear that the storms affected you directly. After the severe storms in Northern California, many homeowners questioned who is responsible when a tree, or branches from a tree, falls into their yard. As with many things in the law, the answer to this question depends on several factors.
The first inquiry is to determine the location of the tree. Was it entirely in the neighbor’s yard, primarily in the neighbor’s yard but with branches that overhang into your yard, or was it on the property line between the two properties? Each of these presents different issues that can change the answer to who would have to pay for the damages.
If the tree was on the border of the two properties, California Civil code section 834 makes both homeowners “coterminous owners,” and the tree belongs to them in common, and both may share some responsibility. However, it is more straightforward if the tree trunk is wholly in the neighbor’s yard but has branches that overhang into an adjoining landowner’s property. There is no hard and fast rule about responsibility, but inquiries into which branches fell, or which neighbor has been responsible for upkeep would be necessary.
Generally, the tree owner is liable for damages caused by the overhanging branches. So, suppose tree branches that overhang your property, drop, or fall, causing injury to a vehicle, person, or structure- in your case, the gutters. In that case, your neighbor is likely liable to you for the damages the fallen branch caused. It is important to know that the damages recoverable are only the actual damages sustained. In your case, the cost of repair of the gutters. The mere fact that branches overhang is not actionable.
Where the tree does not have branches that generally overhang your residence, there are several paths to examine to determine if fault will lay with your neighbor and whether their insurance will pay.
Generally, homeowners’ insurance will not have to pay for what is called “acts of god.” That phrase means an accident or other natural event caused without human intervention that could not have been prevented by reasonable foresight and care. Generally, this refers to natural disasters such as hurricanes, earthquakes, floods, and severe storms. In your case, while your neighbor may be on the hook, it is entirely possible that their homeowner’s insurance would not pay because of the atmospheric river and the severity of the storms in Northern California which caused the branch to fall.
On the other hand, if the reason the branch fell was not the storm’s severity but some known problem with the tree, or failure to maintain it appropriately, then the homeowner’s insurance is more likely to cover the damage. If the tree had previously been shedding branches, but no effort was made to trim the ones remaining or ensure their health, your neighbor may be on the hook, and their insurance may cover it.
In any of these situations, contacting your insurance and a lawyer is best to determine who is liable. Another best practice is to document the situation. Take photographs of the damage and what remains of the tree. Get written estimates for the repair of the gutters. Speaking to a knowledgeable attorney and notifying your insurance will help you address the problem quickly and fairly.
This week’s question comes from Jennifer from Oakland, who asks: With new changes to the traffic laws in 2023, what do motorists, bicyclists, and pedestrians need to know to share the road safely?
Dear Jennifer,
Thank you for your question. Yes, new laws are affecting drivers, bicyclists and pedestrians in California. These changes began as of January 1, 2023. Here are some of the changes taking effect:
The OmniBike Bill (AB-1909), written by Assemblymember Laura Friedman, changes how cars and bike riders share the road. The goals and purpose of the changes were to ensure that cyclists on California streets were safer and more protected, to help cyclists and motorists safely share the road, and to reduce collisions involving bike riders and motorists. The bill makes four significant changes to the vehicle code in California.
Another important change that came into effect as of 2023 is AB-2147, also known as The Freedom to Walk Act written by Assemblymember Phil Ting (D- San Francisco). This law prohibits officers from stopping pedestrians for violations such as crossing the road outside of a crosswalk (jaywalking) unless there is immediate danger of a collision. In that case, an officer can stop and cite a pedestrian. Crossing the street outside a crosswalk is now legal, and you will not get a ticket if the road is wide open. For more information, see our blog on this specific topic.
Next, SB 1472 also known and cited as Ryan’s Law, involves speeding, reckless driving, and vehicular manslaughter. This law increases what constitutes “gross negligence” with the crime of vehicular manslaughter. Drivers involved in a fatality during sideshow activity, exhibition of speed, or speeding over 100 miles per, may now be charged with Vehicular Manslaughter with Gross Negligence. This law was enacted to ensure streets and highways are protected from reckless drivers and excessive speeding, given the increased number of fatalities and the popularity of street racing and sideshows.
Lastly, while it was already illegal to participate in races on the highway, AB 2000 now makes it illegal to participate in speed contests, exhibitions of speed, races, burnouts, or sideshow activities in locations including parking lots and off-street parking structures.
Written By Chris Dolan and Carole Okolowicz
This week’s question comes from John from San Francisco, who asks: What is the difference between having a trial versus going to mediation?
Dear John,
There are many ways to resolve a legal dispute, whether a lawsuit is filed or not. Most people have heard of a trial in front of a jury because the media has popularized it. However, most cases do not go to trial. Experts have estimated that some 98% of all legal disputes resolve before trial. I will explain these options for resolving legal disputes: settlement, mediation, arbitration, and trial.
Most cases resolve through settlement. Mediation is a method used to achieve a settlement. (More on that later.) Where criminal cases typically seek to put a person in jail, civil cases seek monetary compensation for the harm caused. Since the goal is for the suing person to get money if the person sued agrees to pay, there is no longer a need for the lawsuit. Lawyers often write a demand letter, which is a letter that lays out the known facts of the case, any evidence the plaintiff has in their possession (a police report, medical records, photos, employment records), and the legal reasons why a jury would award money should the case go to trial. Sometimes the two sides can work out a deal through informal communications like emails and phone calls. In these situations, the plaintiff will typically agree not to file a lawsuit concerning the matter and the defendant will agree to pay the agreed amount. Note that this is a voluntary settlement. Neither party is forced to pay; no party is forced to dismiss the case or agree to not sue. The parties decide to avoid litigation, or further litigation, by resolving the matter informally.
If informal settlement negotiations are not possible, the parties may seek to resolve the matter through mediation. Mediation is a means to achieve a voluntary settlement. When parties agree to mediate, they hire a neutral person to help resolve the case. At an agreed-upon time and place (or remotely), the parties go into separate rooms and the neutral mediator talks separately to both sides. Many mediators are retired judges or seasoned litigators so they will often provide insights as to how a jury might think about certain aspects of the case. The mediator’s goal is to get both sides to agree on a settlement amount. As with informal settlement negotiations, each party typically writes a brief that, like a demand letter, lays out the facts, law, and evidence.
It is a common saying that a good mediation is one in which both sides leave unhappy. The plaintiff worries they could have gotten more; the defendant worries they paid too much. But the benefits of settling at mediation are great. As with settling through informal negotiations, the parties save on continued litigation costs, including the cost of a trial which can be very expensive. There is a cost associated with litigation. The mediator charges a fee and mediations can often take a whole day of your attorney’s time. But the cost is much less than trial. Further, trials are risky, and the outcome can be hard to predict. Settlements are certain.
Arbitration is another route to settlement, but unlike the two options discussed above, where resolution is voluntary, it is typically binding. Arbitration is a private court. Like mediation, the parties must voluntarily agree to enter into arbitration; you cannot be forced into arbitration. However, embedded in fine print in many of the agreements we are asked to approve before using everyday items and services, like our cell phones, apps or software, streaming services, rideshare transportation, and medical services, is an agreement to arbitrate any legal disputes.
A judge following state or federal rules oversees your case when a lawsuit is filed. When the parties agree to arbitration, a neutral arbitrator or group of arbitrators oversees your case. The parties may agree to the rules they will follow, which often mirror state or federal rules. Arbitration can be faster, more efficient, and cheaper than court litigation and trial. As in court litigation, the parties can demand documents and information from each other through a discovery process, but it is expedited and limited. Arbitration typically ends with a hearing, like a trial, in which witnesses testify. At the end of the hearing, the arbitrator – not a judge or jury – decides. That decision is binding, which means the parties must abide by it. The parties can only dispute an arbitration award on narrow grounds; the intent is that the decision is final. Arbitration is costly but can often be less expensive than litigation and a trial, depending on the case.
A trial is often the last resort. Trials are a risk for both sides. First, they are expensive. At trial, the burden is on the plaintiff to prove their case. That means unless the defendant agrees that the plaintiff was injured, for example, the plaintiff has to prove that they was injured. That often requires getting the emergency room doctor, nurses, EMTs, orthopedic doctors, primary care doctors, and other health care providers to testify that you were injured. Your attorneys will likely have to hire experts to provide an opinion to persuade the jury. Healthcare providers’ and experts’ time can be very valuable and can get into the thousands of dollars. Your attorneys may hire someone to make trial exhibits to show the jury. Your attorneys will be working on your case night and day before and during the trial. Trials can easily cost hundreds of thousands of dollars. Trials are costly and risky.
If you prove your case, a jury may award you damages. Some juries award larger damages, and some juries award smaller damages. Some jurors do not believe in compensating injured persons for pain and suffering and may only agree to award your medical costs. Most jurors in a civil trial must agree to form a verdict.
While trials can be dramatic, they are typically not as fun as watching a trial on tv, even a real one. That is because it is your money, your health, and your life that is going to be decided. If you win, it can be vindicating as well as exhausting. If you lose, it can be defeating – and exhausting. If you are a plaintiff or defendant, you generally must be present each day of the trial. You typically will testify at trial, possibly for a day or multiple days. Trials can be any length, from days to months.
However, sometimes trial is unavoidable. If the other side has offered nothing or very little, and your attorneys believe you have a strong case, you may have no option but to go to trial.
The Dolan Law Firm is a trial firm, meaning we will use all our legal resources available and are always ready to go to trial for you.