The Dolan Law Firm is proud to announce that our founder and chief legal counsel, Chris Dolan has been honored as a recipient of one of the Top Plaintiff Lawyers in 2022 via Daily Journal.
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Dom in San Francisco asks: Electric Scooter are everywhere. I see them on the street. I see them on the sidewalk. I see them on bike lanes. Some people ride alone, and others ride in pairs. Some people wear helmets while others don’t even bother. It all seems dangerous and arbitrary to me. What are the rules and regulations for electric scooters? Whatever they are. I have a feeling people are not following them.
Dear Dom,
Thank you for your question. With the popularity of alternative transportation, residents of San Francisco and other metropolitan areas are taking to bicycles, electric bicycles (e-bikes), and even faster growth – electric scooters (e-scooters) as their preferred mode of transportation. California has not been slow with recognizing the trend and implementing regulations to protect the public by passing legislation identifying the responsibilities of e-scooter riders and operators.
When e-scooters first hit the scene, riders, pedestrians, and motorists were confused about whether these speedy two-wheel people-movers were to be treated like bicycles or motorcycles in terms of roadway restrictions and rider safety. For example, before introducing e-scooters on city streets, California Vehicle Code section 21200–21213 concerned operation of bicycles. These sections regulated issues such as physical characteristics of bicycles, e.g., height of handlebar), safety attributes, e.g., brake requirements, lamp requirements, location of operation, e.g., bike lanes, roadway, etc., and operator safety apparel, e.g., helmets for riders under 18 years old.
The main issues that riders, motorists, and pedestrians alike want to know are:
These are all similar issues that have been previously decided by the legislature in regulating bicycles.
For bicycles, it has been well established in California that individual cities or counties control rules regarding riding bicycles on sidewalks, pursuant to CVC 21206. For example, in San Francisco, the city made it illegal to ride a bicycle on the sidewalk if you are over the age of 13. (San Francisco Transportation Code Sec. 7.2.12). The City of Los Angeles only prohibits bike-riding on a sidewalk “in a willful or wanton disregard for the safety of persons or property.” (Los Angeles Municipal Code section 56.15).
Cyclists may ride in the traffic lanes, and must obey the traffic laws; however, they must use the bicycle lane if they are moving at less than the normal speed of traffic in the same direction, according to section 21208 of the Vehicle Code. As for helmets, Vehicle Code section 21202 requires a helmet for any bicycle rider under the age of 18.
Instead of dropping e-scooters into these multiple vehicle code sections along with bicycles, the legislature has specified and codified rules relating to e-scooters in a separate Vehicle Code section 21235. According to the Vehicle Code, e-scooters may not be operated on the sidewalk except as is necessary to enter or leave adjacent property. As we can see, the legislators did not leave this decision up to the different counties, cities, or municipalities.
The code becomes tricky when regulating the speed e-scooters may operate, and which types of highways or roadways e-scooters may be operated. E-scooters are limited to a maximum speed of 15mph, no matter what type of highway it is ridden on, pursuant to Vehicle Code sections 21235(b) and 22411. Regarding traffic lanes and bike lanes, e-scooters are permitted to be ridden in bike lanes and traffic lanes on roadways with a speed limit of up to 25 mile per hour. The legislator leaves it up to local authorities to authorize the operation of an e-scooter on Class II or Class IV bikeways on highways with a speed limit of up to 35 miles per hour. This means that in no circumstances are e-scooters allowed to be operated on highways with a speed limit above 35 miles per hour.
As for helmets, riders under the age of 18 years old must wear a helmet. Moreover, unlike bicycles, riders must have a valid driver’s license or instruction permit to operate an e-scooter. Undoubtedly, riders should familiarize themselves with California Vehicle Code and their local laws regarding riding e-scooters. Moreover, even though it may not be required by law if you are an adult, riders should always practice good safety and utilize a helmet.
Laird E. in Alameda asks: “I work in construction, and I am often at the worksite for 10 – 12 hours each day and often don’t get off work until after 7:00 p.m. I am afraid that this will not give me time to vote on election day. I don’t feel comfortable mailing my ballot. I want my vote counted right there on election day. Can I use sick time to go to the polls on election day?”
Dear Laird,
Thank you for this very important question which affects many workers. I completely understand that you would prefer to place your ballot in person rather than mailing it. I have good news. The law allows workers to take time off from their position in order to vote and doing so does not require the use of accrued sick leave.
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. Specifically, the Elections Code states that, “the voter may, without loss of pay, take off enough working time that, when added to the voting time available outside of working hours, will enable the voter to vote. No more than two hours of the time taken off for voting shall be without loss of pay,” and that, “time off for voting shall be only at the beginning or end of the regular working shift, whichever allows the most free time for voting and the least time off from the regular working shift, unless otherwise mutually agreed.” Furthermore, 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, this code states that, “the employee shall give the employer at least two working days’ notice that time off for voting is desired…”
For you, if it appears that you will be at the jobsite for 12 hours on election day, and will not be off work until 7:00, as you suggested, that may not give you the opportunity to get to the polls to vote. You should notify your employer, in writing, three days prior to election day, that you will need to take time off to vote. You can work out with your employer whether it makes more sense to go to the polls when they open and then come in to work, or to leave early with enough time to get to your polling place.
Employers also need to be aware that for at least 10 days before every statewide election, every employer must keep posted a notice setting forth the provisions of California Elections Code § 14000 so that employees like you are aware of their rights. The notice must be placed 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.
Another important aspect of this code is that it would likely be unlawful for an employer to retaliate against you, or any person who made use of these provisions of the Elections Code to vote. We would argue that an employer who terminates an
employee for exercising their right to vote would have engaged in, “wrongful termination in violation of public policy,” a cause of action in a lawsuit available when someone is terminated in violation of a fundamental public policy. A wrongful termination cause of action provides for recovery of economic damages such as lost wages and benefits, non-economic losses such as anxiety, stress, emotional distress, fear and humiliation and, if the denial was the decision of an officer, director or, “managing agent,” of the employer, even punitive damages. Importantly, since you work in construction, a field with many Union employees, any collective bargaining agreement provision, which seeks to waive an employee’s right to pay for time taken off to vote, has been held by the courts to be against public policy, contrary to express provision of law and invalid.
If You’re in the Stands, Keep Your Eye on the Ball: Over the past decade, at the beginning of baseball season, I have published a column concerning who is responsible if someone gets hit with a line drive, foul ball and/or broken bat while watching a game. As a lawyer, and a big Giants fan, I like to start off the season by saying, put down your cell phone and keep your eye on the ball during play. A distraction can lead to serious and even life threatening injury.
Balls and bats leaving the playing field and entering the stands are not uncommon. In a 2014 Bloomberg News analysis of ballpark injuries, it was reported that each year in the United States roughly 1,750 spectators are injured by batted balls at major league ballparks. The study showed spectators were much more likely to be hit with an errant ball than a player was to be hit with a pitch. While most injuries are thankfully minor, there are reports of severe injuries, and even death, due the sport’s use of wooden bats and 90 mph plus fastballs.
In an article published in the Boston Globe by Catherine Cloutier on June 09, 2015, Edwin Comber, a baseball statistician, is quoted as saying that about 73% of foul balls go into the stands. A 2000 lawsuit against the Red Sox revealed that during a five-year period in the 90’s, 36 to 53 fans per year were hit by balls outside the field of play. Furthermore, there have been reports of skull fractures and even brain injuries, as a result of bats and balls entering the stands. As the fans demand to be ever closer to the action, and the field is filled with high-priced seats closer and closer to the plate and baselines, the risk of injury goes up just as fast as the price.
The issue of liability for fans’ injuries was addressed by the California Supreme Court in 1935 in the case of Quinn v. Recreation Park Ass’n, 3 Cal.2d 725, where the court held that one of the natural risks assumed by fans attending major league games is that of being struck by batted or thrown balls. The Court ruled that the franchise and/or park owner/operator is not required, nor does it undertake, to insure patrons against injury from such source. All that is required is the exercise of ordinary care to protect patrons against such injuries. Management is not obliged to make each seat safe from flying balls. The court pointed out that many patrons prefer to sit where their view is not obscured by a screen.
The duty imposed by law is performed when screened seats are provided for as many as may be reasonably expected to call for them on any ordinary occasion and if a spectator chooses to occupy an unscreened seat or is unable to buy a screened seat and chooses to occupy one that is not protected, they, “assume the risk of being struck by thrown or batted balls; and, if injured thereby, is precluded from recovering damages therefor,” as stated in Brown v. San Francisco Ball Club.
In Neinstein v Los Angeles Dodgers Inc. (1985) 185 Cal.App.3d 176, the Court of Appeals held that:
…The quality of a spectator’s experience in witnessing a baseball game depends on his or her proximity to the field of play and the clarity of the view, not to mention the price of the ticket. As we see it, to permit plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be priced out of enjoying the great American pastime. To us, neither alternative is acceptable…
Despite the Court’s unwillingness to intervene to reshape baseball through tort law, I am happy to report that all thirty teams in the MLB have decided to extend safety netting and screening all the way down the first and third baselines to the foul pole. So, if you are in the lower section, you should be better protected from line drives and broken batts. If you are in the upper decks, keep your eye on the ball because, if you are in an unprotected seat, you are legally assuming the risk of injury.
This week’s question comes from Bill S. from San Francisco who asks: I’m taking my family to Hawaii in a few weeks and just learned that a Florida judge struck down the mask mandate for airlines. I’m confused about how this will impact our trip. Does this mean that no one will have to wear masks on the airplane? How can one judge in Florida end the mask mandate for the whole country? The end of the airline mask mandate is concerning since I have one child too young to be vaccinated.
Hi Bill,
I certainly appreciate your concern and will hopefully answer your question. Before I start, I would like to give you some background on the Federal Transportation Mask Mandate. In January of 2021, after being sworn in, President Biden signed an executive order making it a violation of federal law to ride public transportation without a mask.
US health officials scheduled the mask mandate to expire on April 18, 2022. However, on April 13, 2022, they extended the federal transportation mask mandate by 15 days in order to assess the recent rise in COVID-19 cases.
On April 18, 2022, U.S. District Judge Kathryn Kimball Mizelle, a Tampa-based federal court judge, ruled that the federal transportation mask mandate was unlawful. Judge Mizelle struck down the mandate on two grounds:
First, Judge Mizelle ruled that the CDC lacked the authority to require masking on public transportation. She took a very narrow view of the Public Health Service Act, a 1944 law allowing the CDC to take certain measures to fight the spread of communicable diseases; the language of the statute refers to “sanitation” as a measure that may be required to be undertaken. Judge Mizelle took this to mean that the statute permitted the establishment of rules/regulations “that clean something, not ones that keep something clean” and mandatory masking was not a “sanitation” measure. Judge Mizelle concluded that requiring masking, regardless of infection status, was an overbroad application of the “detention” and “quarantine” protocols allowed by the Act. In other words, requiring masking of travelers who had not been determined to be infected exceeded the authority that Congress intended to be provided by the Public Health Service Act.
Second, Judge Mizelle held that the CDC’s mask mandate violated the Administrative Procedure Act, which sets administrative agencies’ procedures to set policy. Judge Mizelle stated that the CDC didn’t have a valid excuse for bypassing the masking rule’s public notice and comment requirements. The CDC did not provide an adequate explanation for why they implemented the masking requirement in the first place. Judge Mizelle referred to the fact that the pandemic was already a year old when the mandate was put in place; accordingly, the mandate was not put in place under emergency circumstances.
Of note, Judge Mizelle, a President Trump appointee, was rated by the American Bar Association as “not qualified” for appointment to the Federal bench due to lack of experience. Nonetheless, she was confirmed for life at the age of 33.
Judge Mizelle’s ruling put the authority to enact and enforce masking mandates back with individual airlines, ride-share companies, and other modes of public transportation.
Because of the ruling, the Transportation Security Administration (TSA), a federal agency, ended its enforcement of the mask mandate.
Some jurisdictions like New York and Chicago elected to keep in place mask mandates on public transit, all major airlines, Amtrak, Caltrain, SFMTA, and ride-share companies. Others have chosen to drop their mask mandates and instead recommend the use of masks while riding public transportation.
There are no longer any uniform rules surrounding masking on public transportation. It is best to have a mask should you be required to wear one.
Judge Mizelle struck down the mandate in a “nationwide” injunction (a national court order requiring an action or halting an action). However, she referred to her ruling as vacatur (eliminating an unlawful rule). The judge’s reasoning for her broad elimination of the mask mandate was that it would be too difficult to apply the injunction only to those that brought the lawsuit in the first place. A nationwide injunction applies to all jurisdictions everywhere within the United States.
The judge’s decision does not carry precedential weight. Other federal courts across the country are not obligated to follow her reasoning in handling similar future challenges to administrative regulations. However, if the ruling is appealed and upheld by the federal appellate court (which covers the Southeastern United States), it would set precedent for all other federal courts within the circuit. If the appeal reached the United States Supreme Court, a ruling upholding Judge Mizelle’s order would be binding nationwide.
On April 21, 2022, the Biden Administration asked the Department of Justice to file an appeal in the case. The appeal, if successful, would make clear that the CDC holds the power to make broad mandates in the interest of safeguarding public health. If unsuccessful, the opposite is true—a ruling that would hamper the authority of the CDC to act to protect the people from new and/or evolving public health threats.
State and local government would still maintain authority to issue rules and regulations to protect public health. However, regulations across the country would be inconsistent and piecemeal—arguably this lack of uniformity allowed the COVID-19 pandemic to claim so many US lives in the first year of the pandemic.
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The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation, and the local, state, and federal responses are regularly changing. The Dolan Law Firm makes efforts to keep the information on this page updated. However, it is necessary to confirm with publicly available federal, state, and local health organization guidance and government mandates to guarantee up-to-date information.
This week’s question comes from M. from Daly City who asks: I recently received a call from my son, saying he was involved in an “accident.” Luckily, he is fine. He went on to say that the other driver was looking down at their phone, not paying attention and rear-ended him. I always thought of “accidents” as being unavoidable; this seems like the driver could have avoided it. Was it really an accident?
Dear M.,
I am glad to read that your son is fine, and that is the most important thing. But you are correct. Over the years, we as a society seem to have found a way to excuse peoples’ negligence by classifying them as an “accident.” Using a cell phone while driving creates the potential for deaths and injuries on California and U.S. roads. The underlying thought is that “they didn’t mean for it to happen,” so it was an “accident.” As a society, we need to get away from alleviating someone’s fault by classifying their actions as a an “accident” and look more closely at the underlying conditions.
Accident has two meanings:
In the situation involving your son, people would say that the first definition would apply to the driver that caused the collision; but let’s think about that. The cause of the crash was an inattentive driver who was intentionally using their phone and not paying attention. Though they may not have intentionally struck your son’s vehicle, everything else leading up to that was intentional. Therefore, the outcome should not have been unexpected. Why would we consider this to be an accident?
Secondly, accidents are supposed to happen by chance or be random. But studies are finding this not to be the case.
In a recent interview with Marin Cogan, Jessie Singer, author of the new book There Are No Accidents, talks about the term “accident” and explains “[t]here are a lot of problems with it. Accidents are supposed to be random, right? And unpredictable. If that were true, then accidental death would be randomly distributed across the country, but it’s not. When we look at the data, we see that Black and Indigenous people and people living in poverty die by accident most often.”
The Governors Highway Safety Association proved this statement to be true. They published an Analysis of Traffic Fatalities by Race and Ethnicity in June of 2021. In that analysis, several studies were reviewed and cited to, some of which were:
They found that Blacks, Indigenous and People of Color are disproportionately represented in fatal traffic crashes. Key findings from the research indicated that:
Beyond race, socioeconomic status can influence the risk of motor vehicle crash involvement. The City of Chicago’s 2017 Vision Zero Action Plan included a reference to public health data that show traffic crashes affect Chicago communities unequally. Chicagoans who live in areas of high economic hardship have an increased risk of being in a severe crash and die in traffic crashes more often and at a higher rate than other city residents.
The key findings from the analysis of 2015-2019 FARS data:
When interpreting the disproportionate representation of race and ethnicity in motor vehicle crashes and traffic fatalities, we must recognize that ethnicity and race, to a certain degree, are intertwined with other factors that affect crash risk. Risks include as socioeconomic status and overall investments in crash prevention where people live. These investments include roadway infrastructure, traffic enforcement, community engagement and traffic safety education. None of which is random nor unexpected.
At the end of the day, as Jessie Singer has indicated, “[w]hen we say “it was an accident,” we’re saying it wasn’t my fault. It wasn’t their fault. In doing that, we’re almost always focusing on the wrong thing and setting up the same accident to happen again.”
We as a society need to start focusing on right thing; we can start by not calling everything an accident.
This week’s question comes from an anonymous writer who asks: If you are charged with a crime in California and do not understand English, you have a right to an interpreter in court. (Cal Const Art 1, Sec 14.) If you have an attorney, they may provide an interpreter; the court will provide one if you do not have an attorney. But, do you have a right to an interpreter in a non-criminal situation? For example, if a car hits and injures you, or your employer wrongfully fired you, and you have to file a lawsuit, do you have a right to an interpreter?
Dear Anonymous,
Let’s start at the beginning. One of the first decisions you make when you are injured or mistreated is whether to hire an attorney and which attorney to hire. Many California lawyers and law firm staff note if they speak languages other than English on their website. If you are unsure if the attorneys speak another language other than English, when contacting an attorney, you may want to ask a family member or friend to translate for you.
Next, during litigation, you may have to appear for a deposition as your case proceeds. A deposition is a question-and-answer session which does not happen in court but, you are still sworn in to tell the truth. You have a right to have an interpreter during your deposition, and your attorney will hire one for you. During your deposition, the lawyer for the other side asks you questions, you respond, and a court reporter types everything said, creating a record.
Last, it is very likely that you will never have to appear in court in your civil case. Most cases settle without ever going to trial. But if your case does go to trial, an interpreter must be provided for you. An interpreter must be provided for any witness “who is incapable of understanding the English language or is incapable of expressing himself or herself in the English language” in a way that can be understood by the attorneys, the court, and the jury. (Evid. Code 752(a).) This is a rule of evidence, meaning that if the witness cannot understand the questions and if the court cannot understand her answers, the witness’s testimony is not useful evidence – unless there is an interpreter.
Unlike in criminal court, a civil court will not pay for the interpreter if one is needed. (Evid Code 752(b)(2).) The cost of the interpreter is a cost of the lawsuit, just like the cost to file papers with the court and costs associated with depositions, for example. The party that loses the trial, could be you or the other side, may pay the costs. Or, you could pay it if you decide to settle out of court. You may decide it is worth it to settle for various reasons.
It is ultimately up to the court. The court may determine whether or not an interpreter is needed. Suppose you or anyone testifying in court appears to speak and understand the English language well enough to be understood. In that case, the court may determine that no interpreter is needed. However, your lawyers may decide to hire an interpreter regardless of the court’s determination. They want you to be able to provide your best testimony and fully understand what the court asks of you.
Because California is such a diverse state, there are interpreters for many different languages and dialects, including Spanish, Mandarin, Cantonese, Tagalog, Hindi, Farsi, Portuguese, even some indigenous languages. Your inability to fully understand the English language should not be a barrier to getting legal representation when you have been wronged.
This May, the Dolan Law Firm celebrates Jewish American Heritage Month. Learn more about the achievements and contributions of the Jewish community to American history, culture and society:
There has been a rise in white supremacist sentiment throughout the United States over the last few years, thus, it is not surprising that this has included a significant rise in antisemitic hate and violence. The Dolan Law Firm is committed to fighting against hate and bigotry and using the strength of our team to help build a more diverse, equitable, and inclusive society.
This week’s question comes from Anonymous who asks: As gas prices continue to soar, I am thinking of getting an e-bike to get around and commute to work. I have noticed more cyclists on the roads, many of them riding e-bikes. Some of them seem to be going faster than their pedaling indicates and as they overtake other cyclists. Some riders don’t even seem to be pedaling, yet they are moving faster than other cyclists around them. I am still on the fence on getting an e-bike since I do not know which bike to get. Do you think bicycle accidents will increase as more e-bikes join the traditional pedal bikes?
Hi Anonymous,
Thanks for your question. In the United States, AAA reported that the average national price for a gallon of regular gasoline hit $4.33, in March of 2022, which is the highest national average ever, not accounting for inflation. Similarly, in California, the highest recorded gasoline price for a gallon of regular unleaded hit $5.91 on March 29, 2022. By the time you read this, it is likely that prices will be higher. With gas prices rising, people across the state and country are turning to alternative wallet-friendly ways to get around town through carpooling, public transportation, electric vehicles, or more popular today and electric bicycles.
Electric bicycles, or e-bikes, are selling faster than expected for the first quarter of the year, above the already high expectations set by the pandemic boom. While many factors may be affecting the boom, such as eased pandemic restricts and workers returning to the office, many merchants point to fuel prices as a contributing factor.
In California, an e-bike is a conventional bicycle with operable pedals and an electric motor that does not exceed 750 watts. It must also not exceed 28 mph on leveled ground. The e-bike motor must cease to function when brakes are applied. The e-bike law prohibits users from modifying electric bicycles to change the speed limit. The law defines electric bikes into three-tier classifications: Class 1, 2, and 3.
Slow-Speed Rechargeable Bicycles Are Comparable to Regular Bikes – Class 1 and 2 e-bikes (with maximum supported speeds of 20 miles per hour) are typically allowed any place regular bicycles are permitted unless there is a posted sign that specifically bans e-bikes. The difference between Class 1 and Class 2 is that Class 2 e-bikes come with a motor controlled by a throttle, which allows the e-bike to be powered without pedaling.
The Exception of High-Speed Vehicles – Class 3 bicycles have top supported speeds of 28 miles per hour. They cannot be utilized on bike paths or trails unless it is permissible by local municipalities. (California Vehicle Code §21207.5.) These types of e-bikes could be used on bike lanes and/or detached bikeways next to a road unless otherwise regulated by local municipalities. Additionally, these also require the use of helmets and cannot be used by riders under the age of 16.
Severe injury accidents increase with higher driving speeds and more people on the road. As detailed in our previous article on March 25, 2021, “Have fun and stay safe on an electric bike,” riders can stay safe on the road by obeying all applicable traffic laws designed to keep those on the road safe. Riders should maintain a safe speed, which means not always reaching the maximum speed allowed by the particular e-bike they ride. E-bikers should always be vigilant of their surroundings, including weather conditions, road conditions, pedestrians, vehicles on the road, and other cyclists. E-bikers should err on the side of caution and wear helmets, even though that might not be required. They should consider wearing brightly colored clothing, making them more visible to others on the road. Riders should use a bell when passing other cyclists or pedestrians to ensure that their presence is known.
Riders should familiarize themselves with their e-bikes before jumping onto the road confidently. Users should take their time, perhaps practicing in an empty parking lot before venturing onto a busy road at high speed. Riders should become familiar with the different pedal-assist settings that many e-bikes have. E-bikes can accelerate rapidly, which can be dangerous for riders not used to sudden momentum changes. A lower pedal-assist setting could help users adjust to the e-bike’s increased acceleration. E-bikers should practice braking from high and low speeds, which may also be a new experience for those accustomed to traditional bicycles. And finally, if riders plan to ride where others are present don’t forget to use your helmets and have fun. For more bike safety tips see our Dolan Law Firm bike safety guide tips.