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.

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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.

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Lactation in the workplace

Set of restroom, nursing room, lactation room placard sign.

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

Q: I am ending my maternity leave next week. I would like to send an email to my manager to ask about my employer’s policy on lactation breaks and request a private room where I can express milk for my baby. However, I am worried that I may be asking for too much since the company is small (only 25 employees in my office, but approximately 75 in the Bay Area) and I already took a lot of time off after giving birth for my recovery and for baby bonding. I do not have my own office and I do not want to pump in a bathroom stall, as I am worried that it would be unsanitary. I heard San Francisco has extra protections for nursing mothers. What are my rights?

A: Thank you for your question, Ana, and congratulations on your baby. I am glad you were able to take sufficient time after giving birth for your own recovery and for baby bonding. You are correct: San Francisco increased protections for nursing mothers and expanded the existing requirements for San Francisco employers under federal and California law beginning Jan. 1, 2018.

Under the Federal Fair Labor Standards Act (which applies to business of 50 or more employees), employers must provide reasonable break time for an employee to express breast milk for one year following the birth of a child in a private location other than a bathroom that is shielded from view and free from intrusion from co-workers and the public.

California Labor Code requires employers to provide a reasonable amount of break time to accommodate employees who want to express milk for their baby and to make reasonable efforts to provide the employee with a room, other than a toilet stall, in close proximity to the employee’s work area.

Under San Francisco’s Lactation in the Workplace Ordinance (which applies to nearly all San Francisco employers, as there are no minimum employee threshold that may exempt smaller employers from coverage) the lactation location must also:

– Be available as needed

– Be safe, clean and free of toxic hazardous materials

– Have a place to sit, a table or desk or surface on which to place a breast pump and other personal items

– Have access to electricity, a sink with running water and a refrigerator

The lactation location may be designated for other purposes, but employees must be notified that lactation use takes priority over other uses for the room.

Moreover, the employer must maintain a written lactation accommodation policy that includes a statement of the right to request a lactation accommodation and the process for requesting accommodation. It must also state that, if in response to a request for accommodation, the employer does not provide the accommodation, the employer must provide a written response that identifies the basis for denial of the request and a notice that retaliation in response to a request is prohibited.

This policy must be distributed upon hire, included in any employee policy handbook and must be provided to any employee who asks about or requests pregnancy or parental leave.

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Reporting sexual harassment in the gig economy

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars.
Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars. 

This week’s question comes from K, who asks:

Q:“I am female and I work at events that are staffed by Instawork, Wonolo and other gig agencies. We get gigs through these companies to work at various events. One of these events was being catered by a very famous gourmet company [name withheld]. The catering companies contact Instawork and Wonolo to send workers to provide bartender and waitstaff. Some of the gig workers provided by these companies are sexually harassing myself and other female workers by pawing into us. They usually walk up behind me and put their hands on the flat of my back, or down lower towards my butt. One grabbed my arm from behind. Some give you a pat on the back right where your bra is fastened. Sometimes, they brush against me in ways that are unwanted and inappropriate. This is happening not only to me, it is also happening to other women. It is sexually suggestive and doesn’t happen to the men.
I have reported this to the catering company. They say it is not their problem and that I need to contact Instawork. I have tried to make an anonymous complaint to Instawork but couldn’t get through without giving my name. I am afraid if I tell them they won’t send me to gigs anymore.
There is no clear reporting mechanism, a lack of sufficient training on harassment and discrimination, and little or no supervision by the companies who send you the jobs or the companies where you work. I have been putting up with this for years, and I am fed up. Can you write in your column what the law is so I can send it to the companies?”

A: Dear K, the emergence of the gig economy has led to an upswing of complaints such as yours. These companies believe that they owe their “gig labor force” none of the protections which cover full-time employees. Sometimes this is the result of ignorance, sometimes it is the result of the gig employers just not giving a damn about their labor force.

Sexual harassment can include verbal statements, comments, jokes, written comments, emails, “dick pics,” touching, inappropriate physical presence (sitting on a desk with crotch inches from the face, blocking freedom of movement, etc.) and other unwanted conduct. The key is that the conduct is unwanted and has its basis in sexual connotation or abuse of power.

Under California Government Code Section 12940(a) conduct arises to the level of sexual harassment “when the harassing conduct sufficiently offends, humiliates, distresses, or intrudes upon its victim, so as to disrupt the victim’s emotional tranquility in the workplace, affect the victim’s ability to perform the job as usual, or otherwise interfere with and undermine the victim’s personal sense of well-being.” It suffices to prove that a reasonable person subjected to the discriminatory conduct would find that the harassment altered working conditions so much as to make it more difficult to do the job.

Section (b) of 12940 states that even a single incident of severe harassing conduct is enough to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment. “The existence of a hostile work environment depends upon the totality of the circumstances . . . and the legal standard for sexual harassment should not vary by type of workplace.” 12940(c)&(d).

Pursuant to Section (j)(1), “harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employer . . . shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.”

A person “providing services pursuant to a contract” means a person who meets all of the following criteria: (A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance. (B) The person is customarily engaged in an independently established business. (C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the employer’s work.

Employers, gig or otherwise, can be sued for economic, non-economic, or punitive damages in the millions of dollars. It is also illegal to retaliate against anyone making a complaint. Our firm has recovered hundreds of millions in discrimination, harassment and retaliation cases.

Send both the “gig” employer and the catering company a copy of this letter and hopefully they will take appropriate action. Make a paper trial so you can prove it was delivered. If they continue to ignore your rights, contact a good trial lawyer to take action on your behalf.

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Go slow in the rain

There are two types of hydroplaning: viscous hydroplaning, associated with lower speeds on roads with little to no texture, and dynamic hydroplaning, which can cause total lack of control over steeting and braking.

This week’s question comes from Holly H. in Berkeley, who asks:

Q:“My wife was traveling on a roadway which has a 45 mile an hour limit. It had been raining very heavily for several days but the weather had cleared for at least 4 hours.  She was driving about 30 and everything was fine. As she came around a bend, there was an a huge lake of water in her lane. Her car lost traction, she couldn’t break or steer, and she crossed into the other lane colliding with another car. Thank God no one was seriously injured but someone could have been killed.  After the collision a nearby neighbor came out and said that there was a storm drain which had been backing up there all year and despite calls to the Public Works Department nothing had been done and this was the third accident there this year.  What rights do people have when the drains are not being maintained and they are harmed?”

A: Holly, according to the National Highway Traffic Safety Administration, the second greatest factor in causing collisions (2 percent) is environmental conditions such as rain, snow, etc.(The greatest factor, 94 percent, is human error.)

What you describe is the phenomena known as “hydroplaning.” On wet or flooded pavement hydrodynamic pressure increases as the speed of the vehicle increases eventually leading to the tire losing contact with the roadway.   There are two types of hydroplaning: 1) viscous hydroplaning or 2) dynamic hydroplaning. Viscous hydroplaning is a problem associated with low speed operation on pavements with little or no texture. We see this frequently in rear end collisions during or following rainy conditions. Dynamic hydroplaning occurs in situations with a more significant depth of water as a water wedge is driven between a moving tire and the pavement surface causing a complete separation of tire and roadway. What you describe is full dynamic hydroplaning, a serious life and safety hazard, causing a total lack of control over steering and braking.

Under California Law a government entity: city, county, or state, can be held liable for a dangerous condition of public property if they fail to maintain the roadways, and drainage, in a reasonably safe condition.  The condition must cause more than a trivial risk of harm of the type that was suffered and the entity needs to have actual or constructive knowledge of the condition with sufficient time to remedy it and have failed to do so.

Actual knowledge is when they know about the condition by seeing it themselves, being informed by others, or when they themselves cause the condition to exist.  Constructive notice is when the condition, and its dangerousness, should be apparent to them by a reasonable inspection system or, perhaps, in this situation if they have had to come clean this drain numerous times or they are aware of numerous accidents happening under the same conditions.

I have handled many similar cases as the one you present here. Most involve known flooding areas, improperly constructed roadways and/or blocked or broken drains.  Unfortunately, these conditions can often prove deadly.

It appears that the entity had actual notice based on the neighbor’s complaints. Additional evidence of notice can be obtained by obtaining DPW documents pertaining to the drainage at that site. 

A usual defense is that the driver was traveling too fast for the conditions (Veh. Code 22350). Given the break in the rain, your wife’s reduced speed, and the fact that the pool of water was around a corner, this defense could probably be surmounted.

My best advice to everyone, check your tread depth (it should be at least  4/32 in the front and 2/32 in the rear ), properly inflate your tires and as my daughter says “avoid the pain, go slow in the rain.”

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Who’s responsible for maintaining the Richmond-San Rafael Bridge?

This week’s question comes from Shawn J., in Novato, who writes:

Q: “I read your column every week. I was heading home from an appointment [earlier this month] in the East Bay and got stuck for hours when the Richmond Bridge was shut down because of falling concrete. While I was sitting there, I was wondering who would be responsible for any injuries caused if the concrete crashed through a windshield, or caused someone to swerve, leading to injury? Later it turned out that only a car was damaged, thank God, but the question still lingers in my mind.”

A: Shawn, first of all, thank you for being a loyal reader. It feels good to know people actually read this column! Believe it or not, sometimes it takes up to three hours to research and write as I strive to provide substantive responses with citations to California statutes and case law.

 

The Richmond-San Rafael Bridge, connecting Marin and Richmond along Highway 580, opened in 1956. It is a 5.5 mile long cantilever and truss bridge with a steel structure and a concrete deck, different from the Bay and Golden Gate Bridges, which are suspension bridges. It was originally three lanes but, in 1977 it was narrowed to two to accommodate a massive water pipe feeding water from the East Bay to Marin during a drought that left Marin with no other reliable water source. In 1978, when the pipe was removed, the third lanes were not reopened to traffic. In 2018, given a double-digit increase in traffic volume, a third lane was opened on the westbound lower-deck during rush hour. The third lane on the upper deck is slated to become a pedestrian/bike way.

As the bridge reached its originally projected useful life, a $762,000,000.00 retrofit project was completed in 2005 by Tudor Saliba, a major highway and civil engineering firm, under contract with CalTrans. The work included retrofitting and reconstruction of the decking’s concrete and expansion joints. This is the ultimate source of the concrete’s failure and Thursday was not the first time since then that concrete has fallen onto the lower deck. In early 2006, just months after the retrofit was complete, concrete chunks fell from holes in the upper deck, leading to another $25,000,000.00 in retrofit costs.

The bridge is under constant physical stress, and not only from its substantial traffic flows. The bridge connects land sitting on the Rodgers Creek Fault, running through Marin and Sonoma, with land on the Hayward Fault, which runs through the western part of Alameda, and tremors regularly test the bridge’s retrofitting, designed to withstand a 7.4 magnitude quake on the east and an 8.3 quake on the west. The bridge is also subject to high winds that put lateral stress on the structure and cause bridge closures from time to time. The most recent structural failures appear to be occurring in the expansion joints, which look like zippers connecting stretches of concrete and allow the roadway to expand and contract under various loads, temperatures, tremors, and wind conditions. CalTrans claims to have inspected the joints last August and found no problems.

Under California Code of Civil Procedure Section 337.15, which sets a ten year statute of limitations for “latent” property defects not apparent on reasonable inspection, the contractors, designers, and engineers who retrofitted the bridge in 2005 are most likely free and clear of any responsibility. However, CalTrans may be responsible under Government Code Section 830, which prohibits maintaining a “dangerous condition of public property,” defined as a non-trivial defect that creates a substantial risk to people using the property with due care. Govt. Code Section 835 provides for governmental liability if “the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred, and . . . either: (a) a negligent or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition; or (b) the public entity had actual or constructive notice of the dangerous condition a sufficient time prior to the injury to have taken measures to protect against the dangerous condition. Actual notice occurs when someone is actually aware of a defect as a result of inspection, observation, or report. Constructive notice exists when there was, or should have been, an inspection program to evaluate safety hazards (if funds and means existed for such a program) and a condition had existed long enough that a reasonable inspection should have led to the discovery of the condition and its dangerous character.

I believe a legal basis exists to hold CalTrans liable. If injury is caused in the future by falling concrete, CalTrans will most certainly be held accountable. Let’s hope it doesn’t come to that.

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Finding Liability for Falling Trees

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. Even insignificant damages will implicate a legal right of action, although the recovery of damages is generally be proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a major caveat to this general rule: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect in your jurisdiction. Additionally, even when no local ordinance exists, it would likely be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or, in the alternative, to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In the case presented here, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance. As for claiming negligence and seeking to recover non-economic losses, I would recommend speaking with an experienced trial lawyer to assist in making the case.

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Who’s Responsible for Damage after The storm?

This week’s question comes from Jannette M., who asks:

Q: “During the recent storms, I had a neighbor’s tree fall onto my roof and part of it came into the bedroom where my son was sleeping. Thank God my son suffered only minor physical injuries, which required only an ER visit and a sling, but now he is afraid to sleep alone and has been having nightmares. The tree is out by the sidewalk. I know it’s not on my property because of where it is located on his side of the fence. I also saw on the news where a woman was crushed and killed in her car by a falling tree/branch. What is the law on this kind of thing? This tree has been a sore subject between us as it has been hanging over my yard for years causing lots of leaves, branches and other junk to fall on the roof, clog the gutters, damage my roses and nearly landed on my car. I have spoken with my neighbor about this on several occasions including the last major storms several years ago, when another limb fell on the fence. He repaired the fence, but didn’t do anything to trim the tree or otherwise make it safe. The branch that fell on my house was from the same “crotch” which showed rot after the prior branch came down. The only thing that has been done to the tree is it was cut one time, about a year ago, by the city, because it was blocking a stop sign. When I confronted my neighbor, he said that he didn’t think he owed me anything saying that it’s probably a city tree and even if it wasn’t, it was an “Act of God.” I have reported it to my homeowner’s insurance which stated that it would repair the property but that my insurance did not provide compensation for the personal injuries suffered by my son. Does my son have a right to collect compensation for his physical and emotional injuries and if so, from whom?

A: Dear Jannette, what a terrible and frightening ordeal. Thank God your son was not more seriously injured or killed. I have handled several falling tree death cases in my career and in each instance they were preventable if only the ailing tree had been trimmed or cut down before a storm caused fatal consequences.

Each city has separate ordinances regarding tree maintenance along the roadway/sidewalk. If the tree is very close to the road/sidewalk, then a city ordinance may require the adjacent landowner to maintain the tree. Some trees are exclusively maintained by the city. If this occurred in San Francisco, The City may be liable for failure to maintain the tree. In 2016, the voters passed Proposition E, StreetTreeSF which amended the City Charter to transfer responsibility for the care of the City’s 124,000-plus trees and surrounding sidewalks from property owners to Public Works. The law took effect July 1, 2017 and provides for $19 million to be set-aside annually in the City’s General Fund to fund StreetTreeSF.

The City has prioritized pruning trees based on safety considerations, to correct structural flaws and to gain necessary clearances for overhead wires, traffic signs and signals, adjacent buildings and traffic flow. If you are in San Francisco, the tree trimming around the sign, if it occurred since July 1, 2017, may have been part of the StreetTreeSF priority trimming program.

For the City to remove a tree, unless it creates a dire emergency, the City follows a public notice process before the tree is cut down so citizens can voice their concerns including opposition to the removal of the tree or requesting trimming instead of removal. An individual can still prune their own tree as long as it is undertaken in accordance with the June 27, 2006 CCSF Pruning Standards.

If the City is responsible for maintaining this tree they may be held responsible for the damage caused to your son under the doctrine of Dangerous Condition of Public Property. Under this doctrine a public entity may be responsible for injuries caused by non-trivial defects in public property that create a foreseeable risk of harm, if the City knew, or should have known with reasonable diligence, about the defect with sufficient time to remedy it. Here, as the tree had been trimmed previously by the City, a suggestion of knowledge is raised as they would have been physically present, examined and evaluated the tree, and trimmed it. If the hazard/rot was in existence at that time, and the City did not remedy it, liability may attach. Additionally, if the City arborists did something in trimming the tree that increased the risk of the tree falling on to your house, such as trimming most of the weight from only the street side, they may be held liable under a simple negligence theory.

Next week, I will provide an analysis of the facts assuming the tree was on private property, away from the street right-of-way, where the examination centers on the private landowner’s responsibility.

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California starts year with laws targeting sexual harassment

Around this time every year, I write a series of articles on California’s new laws: laws which were passed through the legislature and signed by the Governor Jerry Brown last year, but did not come in to effect until Jan. 1, 2019. This week, I will focus on a bevy of new sexual harassment laws which owe their origins, in part, to the #MeToo movement. In response to the recent exposure of rampant sexual harassment in politics, the entertainment industry, and business, California has continued to demonstrate an aggressive and progressive agenda with the passage of major legislation supported by several key individual rights organizations, including the Consumer Attorneys of California and the California Employment Lawyers Association.

The first of these bills, Senate Bill 1300, sponsored by state Sen. Hanne Beth Jackson from the 19th Senate District, amended the Fair Employment and Housing Act (FEHA), the state statute already providing anti-discrimination and harassment protections for employees in the workplace. FEHA continues to hold employers, labor organizations, employment agencies, apprenticeship training programs, and other training programs leading to employment responsible for harassment of an employee or contractor by a supervisor or agent of the employer based on any protected classification, including race, sex, age, religious affiliation, disability, sexual orientation, or gender identity or expression. FEHA also continues holds employers responsible for harassment of employees based on protected classifications by any non-supervisory employee if the employer, its agents, or supervisors knew or should have known of the misconduct and failed to take immediate and appropriate corrective action.

However, up until now, FEHA has held an employer responsible for only sexual harassment, but not other forms of unlawful harassment based on other protected classifications, of employees by non-employees, again in circumstances where the employer, its agents, or supervisors knew or should have known of the conduct and failed to take immediate and appropriate corrective action. SB 1300 now extends the scope of protection from non-employee misconduct to include not only sexual harassment, but any form of unlawful harassment, i.e. based on age, race, national origin, religious affiliation, disability, sexual orientation, or gender identity or expression. The amended law further expands the pool of workers protected against non-employee harassment to interns, volunteers and contractors. An employer who fails to put a stop to such harassment that it knew of or should have known about can be sued and held liable for both financial losses and other personal harms caused to the harassed, such as anxiety, fear, and humiliation.

SB 1300 has also cracked the code of secrecy: in every case I’ve settled, whether before or after trial, in my 25 years of employment law practice, the defendant employer has demanded a “confidentiality clause” to make it a “secret settlement,” often imposing significant financial penalties for any disclosure of terms. With SB 1300 in effect, it is now illegal to condition new employment, continued employment, raises or bonuses on an employee releasing of any claim or right under FEHA, including by signing a non-disparagement agreement or other document that would deny the employee their right to disclose information about unlawful acts in the workplace.

Next, SB 224, also sponsored by state Sen. Jackson, amends the California Civil Code to expand the reach of sexual harassment claims to cover non-employment relationships. These amendments allow a plaintiff to prove a cause of action for sexual harassment against a defendant who held themself out as being able to help the plaintiff establish a business, service, or professional relationship. The class of potential defendants under SB 224 include investors, elected officials, lobbyists, directors, and producers …. can you say Harvey Weinstein?

Finally, SB 1343, introduced by state Sen. Holly Mitchell, expands anti-harassment training requirements to cover both smaller businesses and non-supervisory employees. Previously, FEHA has required employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within six months of their assumption of a supervisory position and then once every two years. Upon implementation of SB 134, all employers of five or more employees must now provide at least two hours of sexual harassment training to all supervisory employees, as well as at least one hour of sexual harassment training to all nonsupervisory employees, by Jan. 1, 2020 and then once every two years thereafter.

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Defending the right to vote

This week’s question comes from Chris F. in Bernal Heights, who writes:

Q:“I worked for a design and development firm until November 2018. I was working on a project in the Martinez/Vallejo area and we had a really tight schedule requiring lots of overtime. I wanted to vote in the election and, a week before Election Day, I told my supervisor that I wanted to come in a few hours late so I could vote. My boss, who is really conservative, told me that I couldn’t take time off, which would be a good thing since there would be one less “lefty liberal” voting in San Francisco. I went to my polling station first thing on Election Day and learned I wasn’t the only one who thought it would be a good idea to vote before work. I waited for about 20 minutes, voted, and then fought traffic to get to work. Given our overtime, had I not voted in the morning I probably wouldn’t have had a chance to vote. I got to work an hour and a half late. My boss was really pissed and yelled at me. When I said I was voting to “make America great again” he told me I was fired for being a no-show. Can he do this? I thought that I had a right to vote.”

A: Chris, it’s amazing how some people want to “make America great” by taking away voters’ rights. Your gut instinct is correct: you should not be disciplined or fired for exercising the right to vote, one of your most fundamental rights. California Elections Code § 14000 provides employees with the right to take reasonable time off to vote, without loss of pay, if a voter does not have sufficient time outside of working hours to vote in a statewide election. The law requires that the voter be allowed to take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote, limited to two hours. The allowed time off for voting must be at the beginning or end of the regular working shift, whichever maximizes time for voting and minimizes time off from the regular working shift, unless otherwise mutually agreed. Section 14000(c) states that if a worker knows, or believes, on the third working day prior to the election, that time off will be necessary to be able to vote on election day, the employee must give the employer at least two working days notice. Collective bargaining agreement provisions, such as those contained within union labor contracts, intended to waive an employee’s right to pay for time taken off to vote have been held by the courts to be against public policy, contrary to express provision of law and invalid.

Your employer should not only have known and followed this law, he was also required to provide notice to all employees of their right to take paid time off to vote. California Elections Code § 14001 requires employers to, no later than 10 days before a statewide election, “keep posted conspicuously at the place of work, if practicable, or elsewhere where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of Section 14000.”

It appears that you met the law’s requirements and, therefore, the conduct directed towards you was unlawfully retaliatory. An employer who terminates an employee for exercising their right to vote has engaged in “wrongful termination in violation of public policy.” A wrongfully terminated employee is entitled to recovery of economic damages such as lost wages and benefits, non-economic losses such as stress and emotional distress and, if the denial was the decision of an officer, director or “managing agent” of the employer, punitive damages.

Regarding your boss calling you a “lefty liberal,” indicating that he didn’t want you to vote because of your political leanings, that too is illegal. California Labor Code § 1101 states that no employer shall adopt or enforce any rule or policy forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office. Likewise, it prohibits employers from controlling or directing, or tending to control or direct the political activities or affiliations of its employees. This prohibition not only covers which political party you vote for, but also other causes related to matters of public concern. Much of the recent case law on § 1101 arises out of the history of Proposition 8 and the fight for marriage equality for the LGBTQ community. His reference to you being a “lefty” demonstrates that he took prohibited action against you based on your political leanings.

Chris, I suggest that you contact a trial lawyer with knowledge of employment laws to discuss your case.

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