The battle between robots and humans

This week’s question comes from Aimee F. in Seacliff, who asks,

Q: “I read in last week’s paper that Amazon and other companies are developing robots which will be delivering packages door to door. They look like big ice-chests on wheels. This makes me concerned. My elderly mother does not see well but walks alone between her house and the grocery store. I am afraid she wouldn’t see one of these robots, as it is the last thing she would expect to come across on the sidewalk. If someone gets hit or falls over because of one of these robots, who would be held responsible?”

A: Thanks for your question, Aimee. As you read, Amazon recently publicized that it would be testing ”Scout,” its delivery robot, in Snohomish County, Washington, for delivery of expedited orders (same day to two day) to its Prime members. Designed for the “last mile” of the delivery cycle, the robots will travel to residences using sidewalks. For the near future, the robots will only deliver during daylight and must be accompanied by humans who can intervene if a robot does not navigate well around pets, toys, kids, cars, pedestrians, etc.

Amazon is not the first company to venture into robot delivery. In 2014, a San Francisco company called Starship, founded by the founders of Skype, introduced its robot delivery service, which now boasts over 100,000 km of ground covered and 30,000 deliveries. Both Starship and Kiwi, a company founded in Berkeley in 2017, have launched pilot robotic delivery services to students on college campuses around the country. Marble, another San Francisco company founded in 2015, makes food deliveries for Eat24 in the Potrero and Mission Neighborhoods. Postmates has also been developing a robot, Serve, with a mission to “respect cities, meet customer demands, and help local businesses sell even more.”

In December 2017, the San Francisco Board of Supervisors passed Ordinance 244-17, amending Public Works Code Section 794. Originally, the ordinance was drafted as an outright ban on robotic delivery vehicles, also known as Automated Delivery Devices (“ADD”). The prohibition failed to secure the required number of votes, so it was replaced by a permitting process that allows testing of up to 9 ADD’s total at any one time, with no single company having more than 3 on the road. Testing has been limited to certain neighborhoods in zoning districts designated for Production, Design and Repair (“PDR”) and ADDs are restricted to traveling no more than 3 miles per hour with human accompaniment at all times.

As to your question: what does the law say about responsibility for injuries caused by ADDs? California law provides that an injured bystander like your mother may bring suit for her injuries under negligence or strict products liability claims. Strict products liability would be brought against the designer and manufacturer of the robot, as well as the permit holder, alleging the robots are defective and dangerous due to their design and/or manufacturing process. For instance, an injured party could argue that, given that ADDs are below waist-height (for the most part), a reasonable person would not expect such a novel and diminutive vehicle on the sidewalk or crossing the road, any design lacking a conspicuous marking such as a flag or some other item would cause unlawful danger to pedestrians and motorists.

An injured party could also sue under negligence law to hold an ADD’s permit holder accountable for making sure the robot functions in a reasonably safe manner. Therefore, the permit holder would be liable for any harms caused by the robot if its actions do not meet this “reasonably safe” standard. There is no developed case law so far directly involving ADDS, so the most analogous decisions would be those evaluating the behavior of pedestrians, bikes, skateboards, etc. One thing yet to be worked out, is whether the permit holder would have to provide the data collected by the robots’ myriad sensors to a party claiming injury due to the alleged negligent operation of the ADD.

While the exact nature of injuries, claims and lawsuits from this new technology is yet to be determined, odds are, unfortunately, that someone will be hurt or killed. I wrote in 2012 about the inevitability of Uber’s systems and drivers causing injury or death, a prediction that manifested tragically with the death of 7 year old Sophia Liu whose family I represented in the first wrongful death lawsuit in Uber’s history. Sophia’s family and I went to Sacramento and helped pass a bill that requires Uber to carry a million dollars in insurance. I hope that, in this case, the companies are more deliberate and resolve issues concerning liability and insurance before the inevitable moment when someone is hurt or killed.

read more

Understanding your lease agreement

This week’s question comes from a concerned parent in south Marin, who asks,

Q: “My daughter and four roommates have lived in a two-bedroom apartment in San Francisco for the past two years. When they first moved in, they agreed with the landlord that they would be billed monthly for the water bill. It did not say so in the lease, however. As the year went on, they were never billed even though they asked him repeatedly for it via email.  Now, two years later, he is demanding the racked-up $1,000+ water bill for August 2017 through July 2018 to be paid with their rent check for June 1st. Is this legal? How should they handle this situation?”
A: Dear Concerned Parent, It is difficult to answer this question without the benefit of reviewing the lease document. However, I will answer generally with my understanding drawn from seeing numerous lease agreements as both a renter and landlord.

The rental of an apartment is a contractual arrangement, comprising a landlord’s offer to lease under specific terms and a tenant’s acceptance of those terms. California Civil Code § 1941.1(a)(3) dictates that the landlord bears responsibility to render an apartment habitable by providing water facilities meeting specific regulatory criteria. Generally, a lease agreement includes provisions pertaining to payment for utilities provided, so I would first suggest that you look at the lease to see what, if anything, it says about utilities and which party bears the expense for them.

Next, you should look toward the end of the lease agreement to see if it has an “merger” or “integration” clause, which would look something like this: “This Agreement contains the entire agreement between the Parties to this Agreement and supersedes any and all prior agreements, understandings, representations, and statements between the Parties, whether oral or written, and whether by a Party or such Party’s legal counsel. The Parties are entering into this Agreement based solely on the representations and warranties herein and not based on any promises, representations, and/or warranties not found herein. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless the same is in writing.” These types of clauses are standard in most contracts, including lease agreements, and indicate the parties’ agreement that the contract’s only enforceable provisions are those set forth within the “four corners” of the document, including any addendums or modifications signed by all contracting parties.

Therefore, if your daughter’s lease agreement includes a merger clause and does not include any specific provision for water payments, she can make a strong argument that any oral agreement to pay water bills, outside the four corners of the lease, is unenforceable.

If the lease document contains no merger clause, however, the landlord could argue that an oral contract existed requiring the tenants to pay for water on a monthly basis and point to the roommates’ emails asking for the water bills to demonstrate the nature, existence, and/or terms of that contract. In this scenario, your daughter could still raise a “waiver of rights” defense to the landlord’s claim. Parties to a contract may waive certain contractual rights by not acting upon them. Here, your daughter could argue that her landlord, having not presented any monthly bills in the past two years, has waived any right to demand payment for that bill now.

Your daughter could bolster this waiver argument by citing to California Civil Code § 1954.205, Bill for water service; calculation; inclusion of other lawful charges, which sets forth the law regarding landlords billing for water services. The following relevant parts would apply here: “(a) As part of the regular bill for water service, a landlord shall only bill a tenant for the following water service: (1) A charge for volumetric usage, which may be calculated in any the following ways: (A) The amount shall be calculated by first determining the proportion of the tenant’s usage, as shown by the submeter, to the total usage as shown by the water purveyor’s billing. The dollar amount billed to the tenant for usage shall be in that same proportion to the dollar amount for usage shown by the water purveyor’s billing. . . . (a) Submeters shall be read within three days of the same point in each billing cycle. (b) Payments shall be due at the same point in each billing cycle.” If your daughter can show that her landlord failed to read the submeters (if any) regularly and provide the bill as required, this evidence would further substantiate an argument that he waived his contractual right to demand payment of the water bills.

I hope this helps you, your daughter, and her roommates. If the landlord doesn’t back down, I suggest that she consult the San Francisco Tenant’s Union for more advice at www.sftu.org.   

read more

Landowners Have an Obligation to Address ‘Blighted’ Conditions

This week’s question comes from Jim J. in the Excelsior, who asks:

Q: “My neighbor died. She was such a nice lady. I miss her and I also miss how she used to care for her yard. Her son inherited the place, he was never any good to her and was always trouble growing up. He hasn’t gotten any better with age. Since he moved in, he has been “collecting things” — mostly old cars but also tires, rims and other auto parts. He uses the garage to fix up old cars that he then sells. Most of the junk just stays there and rusts. It’s a scrap yard. Weeds are growing, and I have seen rats running in and out. It’s disgusting. What can I do about it?”

A: Dear Jim, you have a right to expect that your neighbor will keep their property reasonably clean. The conditions you referred to are commonly known as “blight,” and San Francisco has an ordinance — called the Community Preservation and Blight Reduction Act, contained within the Administrative Code — that codifies the responsibilities of a landowner to maintain their property.

The Board of Supervisors determined blighted properties are those that are in a condition of significant deterioration or disrepair, attract vagrants, gang members and other criminal elements as prime locations to conduct their illegal criminal activities, cause general deterioration and instability and substantially endanger the health and safety of residents of the blighted properties and of the surrounding neighborhoods. The Department of Public Works is empowered to issue notices of violation and take action to remedy blighted properties under the doctrine of nuisance.

The presence of any accumulation of filth, garbage, decaying animal or vegetable matter, waste paper, hay, grass, straw, weeds, vegetation overgrowth, litter, trash, cigarette or cigar butts, unsanitary debris, waste material, animal or human excrement is a nuisance prohibited under law. Likewise, “overgrown, dead or decayed trees, weeds or other vegetation, rank growth, rubbish, junk, garbage, litter, debris, flyers or circulars” are recognized as a fire hazards and conditions that promote the spread of vermin.

As to the “scrap yard,” the Administrative Code specifically identifies any property that contains, in the outdoor area, any refrigerator, washing machine, sink, stove, heater, boiler, tank or any other household equipment, machinery, furniture, or item, appliance or appliances as being blighted.

Whenever the director of DPW determines that a property is blighted, he or she may require or take any necessary abatement or other enforcement actions to cause the property blight to be abated. The director, or his or her appointee, can inspect the property and require the owner to pay for a property inspection fee of up to $250. DPW can also issue an abatement order requiring the landowner to address the issues, as soon as possible, and no later than 15 days after notice of the violation, although they can apply for an extension. A person cited also can request a hearing challenging the citation in front of an administrative law judge.

The DPW director can file a notice of abatement against the title of a delinquent property owner. If the owner fails to abate the nuisance, the director can order DPW to do so and then place a lien on the landowners’ property. A lien is a notice filed in the County Recorder’s Office against the title that indicates a debt is owed to The City for the costs associated with the abatement. Upon sale or transfer of the property, The City must be paid in order to secure clear title.

Jim, I suggest you contact DPW either by dialing 311 or by going to the sf311.org website. Search “blight” and request that they come out and inspect the property. Hopefully, they will do so, serve a citation and cause the neighbor to abate the nuisance. In case DPW fails to take action, you, as an owner affected by the blight, can request an injunction in San Francisco Superior Court.

read more

Skateboard-Friendly Zones in S.F.

This week’s question comes from Anthony T. in Bernal Heights, who asks:

Q: “I am a skateboarder, not a criminal! I use my skateboard as a way of getting around because Uber is expensive, because busses are slow and I live on a hill. It’s fun and good for the environment, right? I was skateboarding down the sidewalk on my way down Market to meet a friend to board a bit in Justin Herman Plaza. Some guard at one of the office buildings said I couldn’t board on the sidewalk or in the plaza. I told him it was a free country and he should mind his own business. He said he was going to call the cops and we saw a cruiser coming up so we split. Can I get busted for skateboarding?”

A: Anthony, I have unfortunately learned about skateboarding law through the misfortune of my clients. We have represented dozens of skateboarders who have been hit by cars, trucks, motorcycles and bicycles. Because skateboards have no lights they are especially vulnerable (and illegal) when ridden at night. Personal injuries on skateboards are often very severe, with head injuries and broken upper extremity (arms, legs, shoulders) being the most common injuries we see.

San Francisco has its own transportation Code provision governing skateboarding within The City. Under San Francisco Transportation Code Section 7.2.13, “Non-Motorized User Propelled Vehicles (NUV),” it is prohibited to ride a skateboard upon any sidewalk in any “business district” within the City. It is also unlawful to ride a skateboard on the city streets within any “business district.” The SFGOV website describes the downtown Financial District as follows: The area is bounded roughly by Market Street to the south, the San Francisco Bay to the east, Chinatown and Taylor Street to the west, and Bush Street (between Taylor and Kearny) and Washington Street (between Kearny and the Bay) to the north. There is no reference to other “business districts” on the SFGOV website, but I believe that the term might be broadly interpreted to cover commercial streets like Union, Clement, Valencia and other areas with high commercial density. This is a matter open to interpretation and potentially legal determination, but the sidewalk along Market Street to Justin Herman Plaza is very likely to be considered within a “business district.”

There are several other locations where skateboarding is prohibited by state and municipal laws. California law prohibits the riding of a skateboard inside any transit facility such as Muni Underground, Bart, CalTrain, etc. stations. San Francisco Municipal Codes further prohibit skateboarding in: any Park or Plaza within the city except where expressly permitted (Administrative Code Chapter 94); Yerba Buena Gardens and the new Transbay Rooftop Deck (Park Code Article 11); South Beach Park, Rincon Park, or any Port park located within the Mission Bay North or Mission Bay South Redevelopment Plan Areas (Port Code Article 7); the Japanese Tea Garden, the Arboretum and Conservatory Valley areas of Golden Gate Park (Park Code Article 3). Pursuant to these regulations, skateboarding is prohibited in Justin Herman Plaza, where you were planning to “board.”

Skateboarding in restricted areas may be punishable by a fine not to exceed $250 and by community service for a total time not to exceed 48 hours over a period not to exceed 30 days, during a time other than during the violator’s hours of school attendance or employment.

You are legally allowed to ride a skateboard outside of these proscribed areas, so long as you do not ride on the sidewalk between the following time periods: ½ hour after sunset to ½ hour before sunrise. When riding a skateboard during daylight hours, you must ride in the same direction as traffic and you must yield to pedestrians or bicyclists approaching from any sidewalk within a marked or unmarked crosswalk. Transportation Code Section 7.2.13(b)(3) also requires skateboarders to yield “to any bicyclist or motor vehicle approaching on the street.” Therefore, if you are riding in an area permitted for bicyclists, motor vehicles or pedestrians, the law requires you to yield to them.

While skateboarding you are always prohibited from wearing earplugs, headphones or headsets, and you cannot carry any object that impairs your vision in any direction. Pursuant to California Vehicle Code Section 21212, children under the age of 16 must wear a helmet when skateboarding or face a $25.00 fine for non-compliance.

Despite all of these restrictions, a skateboarder injured by the fault of another is not without recourse. California personal injury laws hold drivers responsible for harms caused by their negligent acts. However violation of any skateboarding regulations may be considered comparative fault in a legal proceeding, thereby reducing any amount you may be entitled to recover by your percentage of fault.

read more

Kayakers Citing Failure Of Da To Properly Charge Drunken Boater Sue For Catastrophic Injuries Caused By Propeller

FOR IMMEDIATE RELEASE

KAYAKERS CITING FAILURE OF DA TO PROPERLY CHARGE DRUNKEN BOATER SUE FOR CATASTROPHIC INJURIES CAUSED BY PROPELLER

Press Conference Friday May 10, 2019 at 9:30 a.m.
Dolan Law Firm, 1438 Market Street

On October 28, 2018, at approximately 4:00 p.m., a ski boat driven by San Mateo Attorney, Stephen Andrew Chiari, ran over 15-year-old Francesco (Chicco) Adamo as he was kayaking with his father Filippo in the Marina Lagoon in San Mateo, California. Chiari, operating a ski boat in the lagoon, was under the influence at the time of the collision and was arrested for reckless operation of a boat and operating a boat while intoxicated with injury. Before becoming a lawyer, Chiari served as a police officer for the City of Oakland for 13 years. Chiari is scheduled to be arraigned on 8:30 a.m. Monday May 13, 2019, before Judge Amarra Lee in Department 19, Courtroom L, at the San Mateo County Courthouse – Northern Branch, located at 1050 Mission Road, in South San Francisco, California. A civil lawsuit is being filed Friday May 10th alleging battery and drunken boating causing great bodily harm.

The crash resulted in the propeller inflicting life threatening wounds to Francesco’s skull, lungs, spine, chest and the base of his brain. Francesco’s father Filippo stated, “I was screaming to them to watch out, watch out, trying to alert them to my son, but they just sped into him and the next thing I knew he was in the water, face down, with blood everywhere. I thought my son was dead. When we pulled him from the water, he was lifeless and not breathing. I gave CPR and tried to care for him the best I could until the Ambulance came and took him to Stanford. I went with him, wet to the bone, praying my son wouldn’t die.” At the Stanford University Trauma Center, dozens of specialists, including trauma, orthopedic and neurosurgeons, operated feverishly to save his life. Chief of Pediatric Neurosurgery, Gerald Grant MD is quoted as saying “I felt like I was back in the military operating theater in Iraq since Chicco’s injuries were so severe.” https://www.stanfordchildrens.org/en/service/trauma/stories/francesco-adamo

After six months of no action, the San Mateo County District Attorney’s office has told Francesco’s family that they will not be charging Chiari with a felony but, instead, with two misdemeanors: operation under the influence and reckless or negligent operation of a boat. Debra Scott, Francesco’s mother stated “We have waited over 6 months for the District Attorney to act. This case has been bounced around from Assistant DA to Assistant DA as a low priority for over six months. To now learn that the DA is only charging this man with a misdemeanor is offensive and unacceptable. My son was shredded and nearly killed by this man’s boat as he sped along a recreational waterway while intoxicated and he is going to be charged with a misdemeanor! Is he getting a pass because he used to be a cop? We demand that the DA charge him with the felony of operation of a boat under the influence of alcohol causing great bodily injury.” “With boating season coming back upon us the DA needs to decisively state that drinking and boating will not be tolerated and will be prosecuted to the fullest extent.”

Francesco’s parents will describe the traumatic events of October 28, his treatment and recovery, their dissatisfaction with the DA’s handling of the case and their call for a felony charge to be prosecuted. There will also be a discussion of the civil lawsuit filed against Chiari. Copies of the suit, as well as photos of the injuries sustained by Francesco will be distributed.For further information call Chris Dolan at 415-279-2604 or by email at chris@dolanlawfirm.com.

read more

Closing Loopholes That Allow Bike, Scooter Rental Companies to Skirt Liability

Jump Electric Bike (owned by Uber) and Lyft Escooter parked side by side on the sidewalk.

This week’s column is about personal mobility devices: bikes, scooters and other transportation products available for rent through apps, and which we see littered around the Bay Area. In this column, I will answer a reader’s question and share information I have gathered while fighting to pass bills in Sacramento to require personal mobility device providers to carry insurance on the devices and prohibit contract clauses that allow these companies to escape liability for their own negligence.

Harold G. from San Francisco asks:

Q: “I was reading in The Examiner that one of Uber’s JUMP Bikes caused injury to a rider because after he applied the brakes and the bike stopped suddenly and threw him off. (See “Uber failed to tell riders about faulty bike breaks,” published April 17, 2019) The article said that Lyft’s Go Bikes also have defective brakes that have caused injury, but Lyft publicly announced the defect while Uber apparently tried to fly under the radar by removing the bikes from the streets quietly. Isn’t the company automatically responsible if its bikes fail like this and cause injury?”

A: Harold, it would indeed seem to be that simple but, alas, it is not. When you “click to accept” you are entering into a binding contract, despite the fact that most people never bother to read its lengthy provisions. Uber, Lyft and other providers have inserted “assumption of the risk” agreements and “release and waiver of liability” clauses within their “click to accept” contracts in order to deprive customers of their ordinary legal rights and allow these big corporations to effectively escape accountability for their dangerous products. In the recent cases of defective brakes, it would not surprise me in the least if Lyft and Uber claim immunity from liability by citing these clauses.

“Assumption of the risk” clauses state that a user recognizes the inherent dangers in an activity and accepts the risk of injury or death from engaging in that activity. If you have ever been skiing, you have most likely signed an assumption of the risk clause exempting the mountain from any injury you sustain while skiing, including if you ski into a tree, hidden object, other skier, etc. Many “outdoor adventure” activities like parasailing, skydiving, horseback rentals, etc., also have such clauses to relieve rental providers from liability for risks inherent to and associated with the sports. The law prohibits “assumption of the risk agreements” from exempting providers from liability for willful or grossly negligent acts.

A shameful difference in the clauses included in many new personal mobility device contracts is a further exemption from liability for injuries caused by defective products. This not only demonstrates lack of care for customers’ safety, but it also creates a “moral hazard,” giving device manufacturers and providers reduced incentive to ensure their products are safe. “Release and waiver of responsibility” clauses are similarly designed to totally exempt rental providers from any liability whatsoever from every imaginable scenario where, under general application of law, they would be subject to legal action for the harms they cause. Instead of responsibly maintaining insurance on the devices, the cost of which could be passed on as a small fee across all customers, these companies instead choose to push all medical bills, lost wages, and damages for pain, loss of function, or even death onto individual injured parties.

That’s right, these rental contracts provide that, even if a device provider are negligent (e.g. by putting a dangerous bike in the rental stream), the rider has agreed to shoulder legal responsibility for the injuries caused. Not only that, but the contracts exempt themselves from judicial review and take away a customer’s right to a public jury trial, requiring instead that the matter be handled through private arbitration, using a private judge and secret proceedings. As a result, not only does the injured party lose access to ordinary legal remedies, but the public at large is kept in the dark about the dangers of these devices and the harms they cause.

It is for this very reason that I am championing AB 1286, a bill introduced by California Assemblymember Muratsuchi and sponsored by the Consumer Attorneys of California, which would preclude these companies from including “assumption of the risk” and “release and waiver of responsibility” provisions in their “click to accept” agreements. I have now testified twice on this bill against the opposition of Lyft, Uber, the California Chamber of Commerce and the technology sector. I successfully fought for consumers’ safety when Uber and Lyft refused to take responsibility for carnage caused by drivers employed by their rideshare services; I hope I will be successful again. In the meantime, please call Muratsuchi (916) 319-2066) and state your support for AB 1286 and objection to these waivers.

read more

S.F. Allows for Flexibility in the Workplace

San Francisco is the first American city to pass a law in giving workers the right to request flexible work arrangements. (Courtesy photo)

This week’s question comes from Candice in San Leandro, who asks:

Q: I am a new mom and plan to return to work at a marketing firm in San Francisco next month. Fortunately, my mother-in-law will be able to take care of my baby most of the time, but she has to leave at 4:30 p.m. to go to work, so I will need to have a flexible schedule in order to be home by then. Do I have any right to request this kind of accommodation? Is there anything I should know about how to make the request? Thanks for your help.

A: Hi Candace, Congratulations on your new baby. There are many complicated decisions you have to make during this time of transition and I hope I am able to provide you some ease on this one.

We are fortunate in that San Francisco, which has always been on the cutting edge of employment mandates, is the first American city to pass a “right to request” law in giving workers the right to request flexible work arrangements. The San Francisco Family Friendly Workplace Ordinance (FFWO) took effect on Jan. 1, 2014 and applies to all San Francisco employers that regularly employ 20 or more people, whether or not all employees are located in San Francisco.

The ordinance provides rights and protections for qualifying employees who need flexible or predictable work arrangements in order to care for specific family members (spouse, domestic partner, child, parent, sibling, grandchild or grandparent) who are either (a) under age 18; (b) over age 65; or (c) living with a serious health condition (illness, injury, impairment, or physical or mental condition that requires either inpatient care or continuing healthcare treatment or supervision). 

To qualify, the employee must:

-Be employed within the City of San Francisco;
-Regularly work at least 8 hours per week; and
-Have worked for their employer for at least 6 months.

Assuming that you qualify under this local provision, you have the right to request a flexible or predictable work arrangement to care for your child. If you don’t qualify under the FFWO, you could still qualify for intermittent time off and/or flexible schedule under certain state laws, such as the California Family Rights Act and New Parent Leave Act.

Under the FFWO, a request must be in writing and specify the arrangement applied for, the date on which the arrangement becomes effective, the duration of the arrangement, and how the request is related to caregiving. The flexible arrangement may include modified work schedules, change in start and end times, working from home and telecommuting. An employee may make up to two requests in a 12-month period, unless the employee experiences a major life event, in which case they may make an additional request during that timeframe. You can find a sample FFWO Request form on The City and County of San Francisco Office of Labor Standards Enforcement (OLSE)’s website https://sfgov.org/olse/family-friendly-workplace-ordinance-ffwo.

An employer must arrange to meet with the employee to discuss any FFWO request within 21 days after its receipt and must then provide a formal response within 21 days after the meeting. The employer’s decision must be made in writing and, if the request is denied, the employer must both provide the employee with a “bona fide business reason” for the denial and notify the employee of the right to request reconsideration. Should the employee request reconsideration, the employer must have a second meeting with the employee and issue a final decision 21 days after that meeting. Employers are further prohibited from retaliating against employees in any way for undertaking the FFWO request process.

“Bona fide business reasons” for a flexible work arrangement may include: identifiable costs, such as productivity loss, retraining or rehiring costs, or the costs of transferring employees; detrimental impact on the employer’s ability to meet customer or client demand; inability to organize work among other employees; or insufficient work time during the employee’s proposed schedule.

So, unless your employer has a bona fide business reason for denying your request, there should be no problem arranging for the modified hours you need to care for your child. If you do run into a problem, including if your employer fails to discuss the request with you or provide a response to the request within 21 days, or if you are retaliated against for making the request, you should contact a trial attorney to take appropriate legal action on your behalf.

read more

Following chain of liability in e-scooter injuries

This week’s question comes from John T. in Portola Valley, who asks:

Q: “I was using an electric scooter when the brakes failed and I ran into a car, breaking my wrist. I didn’t do anything wrong, but now I have a lot of medical bills and I will miss at least three weeks of work (I work with my hands). I reached out to the company and they said they would “look into it,” but I have not heard anything back from them. I don’t have a lot of money so this is going to wipe out the meager savings I have. What are my rights?”

A: John, I am sorry to hear of your crash. Unfortunately, you are part of a growing number of people being hurt by these new scooters, whether while driving over storm grates and uneven roads, colliding with cars that pull out in front of them or make unsafe lane changes, or by being rear-ended. E-scooters are causing a flood of injuries to the emergency rooms throughout the state.

Your case, in which the scooter’s brakes failed, presents an issue of product liability law. Like other jurisdictions, California law provides a means of seeking accountability for injuries caused by defective products by bringing suit against product designers, manufacturers, distributors, retailers and, in this case, providers of products for general use and consumption.

A claim for product liability may arise where there is a flaw in a product’s design, a manufacturing defect, a failure to properly inspect or maintain a product, or a failure to warn of dangerous and foreseeable risks, even when caused by foreseeable misuse. In order to succeed in such a claim, the product must be in the same or similar condition as when it left the manufacturer, distributor, or retailer. If the product has been modified in a manner that may have contributed to the injury, any party “upstream” from the point when it was modified may be insulated from liability.

Since products are often designed, manufactured, distributed, and retailed by different entities, and there is a risk that any one or more of them may not be properly insured or financially stable enough to pay for a valid claim, California follows the “chain of distribution” method of financial accountability. Depending on the type of defect (design vs. manufacturing/inspection), anyone “downstream” in the chain of distribution, from the designer to the retailer, or in this case rental company, may be held financially responsible for your injuries.

California law follows what is known as the “consumer expectations test” in determining whether a product is defective. If a product fails to operate safely when used in such a manner as a consumer could reasonably expect that it should, then the design may, depending on the facts, prove to be defective. If the product leaves a factory with a safety defect deviating from the intended design and manufacturing process (in your case, if the brake cable was fastened incorrectly), then the producer may be held liable for a manufacturing defect claim. The manufacturer may also be held liable for a failure to conduct a reasonable inspection to assure that the scooter was safe and fit for its intended use.

If, on the other hand, the product, as designed and manufactured, was safe at its point of initial sale, but Bird, Skip, Scoot, Lime or another rental company failed to properly inspect and maintain the product while it was in the field, then that company may be held responsible under a negligent maintenance theory of liability. These scooters are in heavy use/rotation and are often abused. The company’s inspection and maintenance program should be carefully examined to ascertain whether their methods and practices are adequate to identify and remedy dangerous defects.

One hurdle that you may face in making a successful claim, depending on the scooter company you rent through, is that you may have signed a waiver and/or assumption of risk clause when you clicked “accept” and accepted the terms and conditions of use. Some companies have put in a complete waiver in their terms and conditions which they will claim bars any legal action against them. Others have placed a $100 limit on their accountability. Some even go so far as to include a waiver of any claims against the manufacturers. These broad waivers have yet to be challenged at the appellate courts, so it is unclear if they will be upheld. Because of the unfairness associated with these waivers, I have proposed legislation, together with the premier consumer protection association in California, The Consumer Attorneys of California, to eliminate these anti-consumer waivers.

John, I suggest that you speak with a good, well respected, trial lawyer about this case and your facts. These companies generally don’t negotiate.

read more

Bumpy Road for Pothole Liability

This week’s question comes from Jennifer in Mill Valley, who writes,

Q: After this year’s rainy winter, new potholes seem to be appearing daily. After I predictably blew a tire a few weeks ago, I thought I’d write a note to the city asking for reimbursement of the cost of replacing my tire. I just received a letter back stating that my claim, which was for less than $150, had been denied. I’m not going to pursue legal action over such a small sum, but I’m irked that the city is able to skirt responsibility for probably hundreds of similar cases, when their roads don’t seem to stand up to the weather.

A: Thank you for your question, Jennifer, and you have my sympathy in this frustrating and all-too-common situation. Potholes are indeed more prevalent after heavy rains, as water seeps through pre-existing cracks in the asphalt and settles underneath, making the ground more susceptible to erosion and sagging as vehicles travel over top. And while this seasonal occurrence seems predictable enough, a city is often not held liable for damage caused by any particular pothole.

A city, like any other property owner, is charged with maintaining their premises in a reasonably safe condition. However, reasonable does not mean perfect and maintenance is not expected to be instantaneous. For example, a deviation in a road’s level measuring under one inch will generally be deemed “trivial” as a matter of law and, therefore, not deemed to be the city’s responsibility. As such, many damages resulting from potholes may simply not fall within any property owner’s scope of liability.

As discussed in previous columns, 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. Courts have held these conditions to include premises that are “physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Cordova v. City of Los Angeles (2015). This description would seem to clearly implicate potholes that make driving on city roads dangerous.

However, the existence of a non-trivial dangerous condition itself does not mean that a city is liable for damages it causes: the “dangerous conditions of public property” doctrine further requires that the city have either (1) caused it via negligent conduct, e.g. during roadwork, or (2) were actually aware of it (actual notice), or should have been under the circumstances (constructive notice), and had sufficient time to make appropriate repairs. Cal. Gov. Code § 835. Conduct is deemed to be negligent if the actor unreasonably failed to exercise due care, determined by weighing the probability and gravity of potential injury against the practicability and cost of alternative action. Cal. Gov. Code § 835.4. A determination of constructive notice may involve analysis of the dangerous condition’s severity and visibility, as well as the frequency of traffic to the location and occurrence of any previous adverse events, among other factors. Therefore, unless the pothole was specifically and unreasonably caused by a city itself or lay conspicuous and unrepaired for an unreasonable amount of time, the city will still not be held liable for any damages due to even the worst pothole on the road.

Even if all these statutory requirements are met, a city may still raise a number of defenses to defeat liability. It may argue that it had exercised due care by blocking off the location or posting warning signs to prevent the vehicles from making contact with the pothole; alternatively, it may argue that the pothole was in fact so “open and obvious” that no such blockade or warning sign was necessary and the damage was solely attributable to the driver’s inattention to road conditions. A city may claim “design immunity”; that is, it should not be held liable for risks incidental to a previously-approved road design, where the approval was made in the discretion of an appropriate decision-making body based on substantial evidence of the design’s reasonableness. Cal. Gov. Code § 830.6.

As you can see, your frustration with the city’s response is quite likely not due to the obstinance of the city’s legal department, but rather the law itself. However, it is still very important for you to report poor road conditions! Not only will reporting increase the chance that the condition will be promptly repaired, it will also put the city on actual notice of the defect, increasing the chance that it will be held liable for future damages if appropriate repairs are not made. There is a good chance that your reporting will help prevent damage to someone else’s vehicle or even someone being seriously injured.

read more

Protecting the Elderly from Abuse and Neglect

This week’s question comes from Tara W. from Tiburon, who asks:

Q: “My grandmother is in a nursing home. She is bedbound and can’t use her legs. From my visits and conversations with her, it is clear that the nursing home personnel doesn’t get her out of bed or change her adult diaper nearly regularly enough and, as a result, she has developed two large sores on her bottom. We know it is not the best place for her, but it is all our family can afford. What rights does she have and what can I do to hold them responsible for not caring for my Grandma?

A: Dear Tara, As our society ages as a group, more and more facilities are springing up in the elder care business. Unfortunately, while many are caring and reputable, many others are poor quality and understaffed, with some resembling nothing more than warehouses for the elderly. In the context the Bay Area’s skyrocketing costs of living, many families like yours have no choice but to settle for substandard services.

California’s Elder and Dependent Adult Civil Protection Act (“EADACPA”), codified in the California Welfare and Institutions Code, reflects the state legislature’s recognition that persons age 65 and older are a disadvantaged class worthy of heightened protection from the state because their age-related physical and mental limitations diminish their ability protect their rights on their own. Cal. Welf. & Inst. Code § 15600. EADACPA protections also apply to other disabled adults between 18 and 64 whose physical or developmental disabilities restrict their ability to carry out normal activities and are therefore either dependent on others for their basic and daily needs or admitted as inpatients to 24-hour health facilities. Cal. Welf. & Inst. Code § 15610.23(a)-(b). The law seeks to protect elders and dependents from abuse and neglect by providing an array of public and private legal remedies, including recovery for a victim’s pain and suffering, attorney’s fees, litigation costs, and punitive damages. Cal. Welf. & Inst. Code § 15657. By imposing the specter of these enhanced remedies in litigation, the law seeks to simultaneously disincentivize unlawful behavior and encourage private enforcement of the laws.

EADACPA defines neglect of an elder/dependent as “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person in a like position would exercise,” which may take the form of failure to assist in personal hygiene, provide food, clothing, shelter, or medical care, or protect from health and safety hazards. Cal. Welf. & Inst. Code § 15610.57. Abuse is defined as deprivation by a care custodian of goods and services necessary to avoid physical harm or mental suffering, or as well as financial abuse, physical abuse, neglect, abandonment, isolation, abduction, or other treatment resulting in physical harm or pain or mental suffering. Cal. Welf. & Inst. Code § 15610.07.

To recover EADCPA’s enhanced remedies, including punitive damages, a plaintiff must prove by clear and convincing evidence not only that the defendant is liable for physical abuse, neglect, or financial abuse as defined by the act, but also that they are guilty of recklessness, oppression, fraud, or malice in the commission of that abuse. Beyond a purely negligent absence of care, recklessness involves a deliberate disregard of the high degree of probability that an injury will occur, rising to the level of a conscious choice of a course of action with knowledge of the serious danger to others involved in it. Oppression, fraud, and malice further require intentional, willful, or conscious wrongdoing of a despicable or injurious nature. Cal. Welf. & Inst. Code § 15657.

Tara, from what you report, your grandmother’s situation sounds like it could qualify as neglect under EADCPA. Your family’s first step should be to file an administrative complaint. The allows any person or organization, not only victims and family members, to file a complaint about a nursing home with the Licensing and Certification Division of the California Department of Public Health (DPH). The DPH’s San Francisco office is located at 150 North Hill Drive Suite 22, Brisbane, CA 94005. Their phone number is (415) 330-6353.

read more