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.

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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.

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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.

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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.

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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.

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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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