Should My Neighbor Pay for My New Gutters?

Written By Chris Dolan and Emile Davis

This week’s article comes from Ayden from San Francisco, who asks: During the recent atmospheric river storms, branches from my neighbor’s tree fell into my yard, causing some damage to my gutters. I don’t know what to do or how to handle this situation. Will I have to pay to repair the gutters, or does my neighbor have to pay to have them fixed for me?  

Ayden,

I am sorry to hear that the storms affected you directly. After the severe storms in Northern California, many homeowners questioned who is responsible when a tree, or branches from a tree, falls into their yard. As with many things in the law, the answer to this question depends on several factors.

The first inquiry is to determine the location of the tree. Was it entirely in the neighbor’s yard, primarily in the neighbor’s yard but with branches that overhang into your yard, or was it on the property line between the two properties? Each of these presents different issues that can change the answer to who would have to pay for the damages. 

If the tree was on the border of the two properties, California Civil code section 834 makes both homeowners “coterminous owners,” and the tree belongs to them in common, and both may share some responsibility. However, it is more straightforward if the tree trunk is wholly in the neighbor’s yard but has branches that overhang into an adjoining landowner’s property. There is no hard and fast rule about responsibility, but inquiries into which branches fell, or which neighbor has been responsible for upkeep would be necessary.

Generally, the tree owner is liable for damages caused by the overhanging branches. So, suppose tree branches that overhang your property, drop, or fall, causing injury to a vehicle, person, or structure- in your case, the gutters. In that case, your neighbor is likely liable to you for the damages the fallen branch caused. It is important to know that the damages recoverable are only the actual damages sustained. In your case, the cost of repair of the gutters. The mere fact that branches overhang is not actionable.

Where the tree does not have branches that generally overhang your residence, there are several paths to examine to determine if fault will lay with your neighbor and whether their insurance will pay.

Generally, homeowners’ insurance will not have to pay for what is called “acts of god.” That phrase means an accident or other natural event caused without human intervention that could not have been prevented by reasonable foresight and care. Generally, this refers to natural disasters such as hurricanes, earthquakes, floods, and severe storms. In your case, while your neighbor may be on the hook, it is entirely possible that their homeowner’s insurance would not pay because of the atmospheric river and the severity of the storms in Northern California which caused the branch to fall.

On the other hand, if the reason the branch fell was not the storm’s severity but some known problem with the tree, or failure to maintain it appropriately, then the homeowner’s insurance is more likely to cover the damage. If the tree had previously been shedding branches, but no effort was made to trim the ones remaining or ensure their health, your neighbor may be on the hook, and their insurance may cover it.

In any of these situations, contacting your insurance and a lawyer is best to determine who is liable. Another best practice is to document the situation. Take photographs of the damage and what remains of the tree. Get written estimates for the repair of the gutters. Speaking to a knowledgeable attorney and notifying your insurance will help you address the problem quickly and fairly.

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Is a Trial the Same as An Arbitration?

Written By Chris Dolan and Carole Okolowicz

This week’s question comes from John from San Francisco, who asks: What is the difference between having a trial versus going to mediation?

Dear John,

There are many ways to resolve a legal dispute, whether a lawsuit is filed or not. Most people have heard of a trial in front of a jury because the media has popularized it. However, most cases do not go to trial. Experts have estimated that some 98% of all legal disputes resolve before trial. I will explain these options for resolving legal disputes: settlement, mediation, arbitration, and trial. 

Informal Settlement Negotiations

Most cases resolve through settlement. Mediation is a method used to achieve a settlement. (More on that later.) Where criminal cases typically seek to put a person in jail, civil cases seek monetary compensation for the harm caused. Since the goal is for the suing person to get money if the person sued agrees to pay, there is no longer a need for the lawsuit. Lawyers often write a demand letter, which is a letter that lays out the known facts of the case, any evidence the plaintiff has in their possession (a police report, medical records, photos, employment records), and the legal reasons why a jury would award money should the case go to trial. Sometimes the two sides can work out a deal through informal communications like emails and phone calls. In these situations, the plaintiff will typically agree not to file a lawsuit concerning the matter and the defendant will agree to pay the agreed amount. Note that this is a voluntary settlement. Neither party is forced to pay; no party is forced to dismiss the case or agree to not sue. The parties decide to avoid litigation, or further litigation, by resolving the matter informally.

Mediation

If informal settlement negotiations are not possible, the parties may seek to resolve the matter through mediation. Mediation is a means to achieve a voluntary settlement. When parties agree to mediate, they hire a neutral person to help resolve the case. At an agreed-upon time and place (or remotely), the parties go into separate rooms and the neutral mediator talks separately to both sides. Many mediators are retired judges or seasoned litigators so they will often provide insights as to how a jury might think about certain aspects of the case. The mediator’s goal is to get both sides to agree on a settlement amount. As with informal settlement negotiations, each party typically writes a brief that, like a demand letter, lays out the facts, law, and evidence. 

It is a common saying that a good mediation is one in which both sides leave unhappy. The plaintiff worries they could have gotten more; the defendant worries they paid too much. But the benefits of settling at mediation are great. As with settling through informal negotiations, the parties save on continued litigation costs, including the cost of a trial which can be very expensive. There is a cost associated with litigation. The mediator charges a fee and mediations can often take a whole day of your attorney’s time. But the cost is much less than trial. Further, trials are risky, and the outcome can be hard to predict. Settlements are certain.

Arbitration

Arbitration is another route to settlement, but unlike the two options discussed above, where resolution is voluntary, it is typically binding. Arbitration is a private court. Like mediation, the parties must voluntarily agree to enter into arbitration; you cannot be forced into arbitration. However, embedded in fine print in many of the agreements we are asked to approve before using everyday items and services, like our cell phones, apps or software, streaming services, rideshare transportation, and medical services, is an agreement to arbitrate any legal disputes. 

A judge following state or federal rules oversees your case when a lawsuit is filed. When the parties agree to arbitration, a neutral arbitrator or group of arbitrators oversees your case. The parties may agree to the rules they will follow, which often mirror state or federal rules. Arbitration can be faster, more efficient, and cheaper than court litigation and trial. As in court litigation, the parties can demand documents and information from each other through a discovery process, but it is expedited and limited. Arbitration typically ends with a hearing, like a trial, in which witnesses testify. At the end of the hearing, the arbitrator – not a judge or jury – decides. That decision is binding, which means the parties must abide by it. The parties can only dispute an arbitration award on narrow grounds; the intent is that the decision is final. Arbitration is costly but can often be less expensive than litigation and a trial, depending on the case. 

Trial

A trial is often the last resort. Trials are a risk for both sides. First, they are expensive. At trial, the burden is on the plaintiff to prove their case. That means unless the defendant agrees that the plaintiff was injured, for example, the plaintiff has to prove that they was injured. That often requires getting the emergency room doctor, nurses, EMTs, orthopedic doctors, primary care doctors, and other health care providers to testify that you were injured. Your attorneys will likely have to hire experts to provide an opinion to persuade the jury. Healthcare providers’ and experts’ time can be very valuable and can get into the thousands of dollars. Your attorneys may hire someone to make trial exhibits to show the jury. Your attorneys will be working on your case night and day before and during the trial. Trials can easily cost hundreds of thousands of dollars. Trials are costly and risky.

If you prove your case, a jury may award you damages. Some juries award larger damages, and some juries award smaller damages. Some jurors do not believe in compensating injured persons for pain and suffering and may only agree to award your medical costs. Most jurors in a civil trial must agree to form a verdict. 

While trials can be dramatic, they are typically not as fun as watching a trial on tv, even a real one. That is because it is your money, your health, and your life that is going to be decided. If you win, it can be vindicating as well as exhausting. If you lose, it can be defeating – and exhausting. If you are a plaintiff or defendant, you generally must be present each day of the trial. You typically will testify at trial, possibly for a day or multiple days. Trials can be any length, from days to months. 

However, sometimes trial is unavoidable. If the other side has offered nothing or very little, and your attorneys believe you have a strong case, you may have no option but to go to trial. 

The Dolan Law Firm is a trial firm, meaning we will use all our legal resources available and are always ready to go to trial for you.  

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CARE Act to Provide Help To Underserved Populations

Written By Chris Dolan and Kimberly Levy

This week’s question comes from Shelly D. from San Francisco, who writes: I have lived in San Francisco all my life. I have noticed more and more people in our community are in crisis on the streets. Often with mental or substance use disorder, they are left to fend for themselves without food, warm clothing, or adequate medical care. What can California do to help our fellow Californians in need?

Dear Shelly,

Great question. A novel plan to address these issues is in the works. Earlier this year, the California State Legislature enacted SB 1338, the Community Assistance, Recovery, and Empowerment Act (CARE Act) signed into law by Governor Newsom in September 2022. The law created CARE Court, a new court-based framework established to provide care and support for Californians with untreated mental health and substance use disorders. Those disorders often lead to homelessness, incarceration, or even death without proper care and support. CARE Courts intend to provide court-ordered, community-based services for those underserved populations without infringing on people’s rights.  

What services will be provided by CARE Court?

CARE provides “trauma-informed” “clinically appropriate, community-based … services and supports that are culturally and linguistically competent.”  This support includes counseling, stabilizing medication, social services, housing assistance, and counsel for all court appearances for a diverse population with diverse needs.

Who will be eligible for CARE?

CARE focuses on assisting people with those with severe mental disorder or substance use disorder. There are strict requirements to qualify for the program.  The following criteria must be met:

  1. person must be at least 18 years of age;
  2. person must be currently experiencing severe mental illness or diagnosis of substance use disorder;
  3. person must be unstable in ongoing voluntary treatment;
  4. person either is unlikely to survive in the community without supervision and the person’s condition is substantially OR requires supports to prevent relapse or deterioration of their condition likely to result in serious harm;
  5. the CARE program would be the least restrictive method to ensure person’s recovery/stability; and
  6. it is likely the person will benefit from participation in the CARE program.

How will CARE Court work?

A referral to CARE Court starts with an individual seeking treatment or their representative filing a petition under penalty of perjury. The petition for CARE Court services will present facts demonstrating the petitioner meets the criteria for participation. The Court will review the petition, and if it appears to meet the criteria, the county will investigate and provide a report on whether CARE services are appropriate.  

The Court will dismiss the case if an individual voluntarily agrees to services. A CARE agreement will be entered into with Court follow-up. The Court will hold a hearing if the individual does not voluntarily agree to services but meets the CARE criteria. They will appoint an attorney for those who do not voluntarily agree to participate in CARE services. The Court will determine whether a CARE plan is appropriate or whether they should dismiss the case. If the Court imposes a CARE plan, they may order services and supports such as treatment, medication, housing assistance, counseling, etc.  

To remain accountable, the Court, CARE participant, counsel, and behavioral health professionals will have status hearings every 60 days for one year. After one year, a participant will be able to graduate or continue services for another year based on need.

What if CARE Court participants fail to comply with their plan?

A non-compliant participant will be subject to additional court hearings, which may result in termination from the proceedings. Still, the individual will remain eligible for some of their ordered services. The Court may also use its power to ensure an individual’s safety in the program.

What if the government does not provide the ordered services and supports?

Suppose the Court finds that a local government entity substantially failed to comply with the Court’s order for services or support. In that case, the presiding judge may issue an order imposing a fine of $1,000 per day that the government fails to comply, not to exceed $25,000. Fines will be collected into a CARE fund to pay back into the program.

When will CARE be implemented?

Pilot program CARE Courts will be established in seven counties in California by October 1, 2023. Pilot counties include San Francisco, San Diego, Orange, Riverside, Stanislaus, Tuolumne, and Glenn. The remaining 51 California counties must implement CARE Courts by December 2024.

The CARE program requires creating significant new infrastructure, and it presents a glimmer of hope that those in need of assistance will have meaningful access to supports and services. That meaningful access can put their lives on a safer, healthier trajectory.

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Concealed Weapons Permit, CCW, Debate Continues In California

Written By Chris Dolan and Matthew Gramly

This week’s question comes from Anonymous, who asks: What happened to the recent concealed carry permit legislation that was pending regarding carrying a concealed handgun?

Dear Anonymous,

Thank you for your question. As many of us know, California has some of the strictest gun control laws in the nation. That is coming to an end, given a recent U.S. Supreme Court ruling. In June of 2022 the Court issued a ruling that effectively makes California’s current law regarding who may or may not obtain a concealed weapons permit, or CCW, unconstitutional.

The Second Amendment in the Bill of Rights to the Constitution is a single sentence, reading,

“A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.” 

Twenty-seven words, three commas, shouldn’t be hard to understand. But the true meaning of the Amendment has been hotly debated and litigated for decades.  

In 2008, in an opinion authored by Justice Antonin Scalia in the case of District of Columbia v. Heller, the Court, for the first time in over 200 years, recognized a Constitutional right of a private individual to own a firearm for traditionally lawful purposes, primarily self-defense within one’s home. Justice Scalia’s opinion was the first time the Court had ever recognized the right of an individual to own a firearm unconnected to whether or not that individual served in a militia.  

This past June, a newly conservative Court issued a 6-3 opinion in the case of New York State Rifle & Pistol Association, Inc. v. Bruen wherein the Court took the Heller decision a step further, holding that private individuals have a Constitutional right to carry a handgun for self-defense outside their home.  

Why does that matter to California? In the Bruen case, New York had a “may issue” handgun permit statute, as opposed to a “shall issue” statute. Essentially, the New York statutory scheme required that an individual requesting a CCW permit demonstrate some special need above and beyond garden variety self-defense, a heightened showing of “good cause,” to get approved for a concealed carry permit. The authority to grant or deny such permit requests was typically granted to the local county Sheriff, who “may” issue a permit, or not, depending on that Sheriff’s determination of whether or not you have shown enough “good cause” to qualify for one. These kinds of statutes, some have argued, leave the right to exercise one’s Constitutional rights up to your local Sheriff and what your local Sheriff thinks of you, which hardly seems fair. California has a similar “may issue” CCW statutory setup.  For example, the County of San Francisco has issued less than 15 CCW permits in the last decade, while rural counties grant exponentially more CCW permits despite being more sparsely populated. 

The Court found the requirement of demonstrating a particular need to be an improper barrier to exercising one’s Second Amendment Rights. It determined New York’s statute to be unconstitutional, effectively determining California’s law to be unconstitutional as well.

Almost immediately State Attorney General Rob Bonta authored a replacement bill that would meet the requirements of the Supreme Court while still aiming to protect Californians from gun violence.  

The Court’s ruling in the Bruen case permitted counties and states to recognize certain sensitive gun-free zones, such as churches or schools. California’s legislators sought to exploit that loophole. They designated hospitals, schools, medical facilities of any kind, libraries, and government buildings. in creating such an expansive list of these gun free zones that effectively made it so that the only place one would be legally permitted to carry a handgun in California would be in the middle of nowhere—a thousand feet from any other person or structure. The bill failed to pass the Assembly by a single vote.

While maybe keeping with the specific language of the Bruen decision, certainly violated the spirit of the decision in such a manner that there is no possibility that it would have survived court challenges. Legislators overreached to such a degree they would have come close to effectively making the entire state a gun free zone had this bill passed. Now they must go back to the drawing board and start over, all while California’s current CCW remains unconstitutional and local authorities are unsure how to proceed.

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Freedom To Walk Act Ends Jaywalking, When It’s Safe To Cross

Written By Chris Dolan and Alexandra Cotroneo

 This week’s question comes from Betty from San Francisco, who asks: Can you explain what The Freedom To Walk Act is all about? Why is jaywalking safe and better for pedestrians? 

Hi Betty,

That is a great question, and I am sure many people are asking themselves the same thing.

This past September, Governor Gavin Newsom signed The Freedom to Walk Act, Assembly Bill 2147, sponsored by Assemblymember Phil Ting (D-San Francisco). This new law will go into effect on January 1, 2023. The Freedom to Walk Act allows pedestrians to jaywalk without the fear of ticketing. While jaywalking is still technically illegal, the Act precludes police officers from issuing tickets. Police can, however, ticket for jaywalking when it is unsafe, for instance, when there is an immediate risk of a collision with a vehicle. Hence, pedestrians must still exercise due care for their safety, and so must drivers for the safety of any pedestrians crossing a roadway.

The crime of jaywalking resulted from the automotive industry’s efforts to shift the public’s mindset on who owned the road: the automobile or the pedestrian. In the 1920s, roads were a communal space where pedestrians, carriages, vehicles, and vendors existed together. As cars became more popular and sales increased, so did pedestrian deaths. While memorializing killed pedestrians, communities blamed drivers and their automobiles. These deaths prompted a growing sentiment that vehicles should be restricted, including their speed limit. Automakers quickly changed the existing pedestrian laws while launching a media campaign to shame pedestrians who failed to use crosswalks. Thus, the term “jaywalking” came into existence. Jaywalking was a derogatory term used to reference someone from the country who was ignorant of city life. Ultimately, the public shaming campaign headed by the automobile industry succeeded: authorities criminalized jaywalking, and the onus shifted from the automobile to the pedestrian. Since then, police have not equitably enforced jaywalking laws. 

According to data collected from 2018-2020 by the California Racial and Identity Profiling Act, police disproportionately ticket Black pedestrians for jaywalking. Black pedestrians are four and a half times more likely to be stopped for jaywalking than White pedestrians. This inequitable enforcement has led to dangerous police interactions with pedestrians of color. Chinedu Okobi is one instance where the unfair and disproportionate enforcement of jaywalking resulted in tragedy. In 2018, police stopped Chinedu Okobi for jaywalking in San Mateo, California. The confrontation quickly escalated, and excessive force was used, resulting in the death of Chinedu Okobi, an unarmed black pedestrian.

With the passage of The Freedom to Walk Act, pedestrians will now have fair and equitable use of roadways. The Freedom to Walk Act will remove a pretense for over-policing pedestrians of color, eliminate the financial burden of fines and fees to those disproportionately ticketed for jaywalking, and grant rightful use of roadways to both pedestrians and motorists. 

Nonetheless, pedestrians and motorists must still use precautions and safely use the roads, even if police will no longer ticket pedestrians for jaywalking. However, you have the right to pursue pedestrian accident compensation as an injured pedestrian. Contact a personal injury lawyer who will advocate for your rights. 

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The PACT Act Expands Benefits For Veterans

Written By Chris Dolan and Megan Irish

This week’s question comes from Lino in San Francisco, who writes: I wondered, with Veterans Day last week, what is the government doing to protect those who’ve served these days. Is there anything new? I remember Joe Biden talking about making Veterans a priority, has he done so? How many veterans are there anyway?

Dear Lino,

Thanks for your question. Veteran’s Day was on Friday, November 11, this year. According to the US Census, there are approximately eighteen million veterans in the United States. President Biden has been working on Veterans benefits and has made several strides over his presidency by establishing presumptions for rare respiratory cancers, raising awareness of VA benefits related to military exposures, and increasing training for both VA and non-VA healthcare providers. Over nine million are enrolled in VA health care, under the care of some 370,000 medical professionals, in nearly 1300 health care facilities. The VA has also implemented a new network of specialized providers and a call center to improve care.

However, on August 10, 2022, President Biden signed a new law, the PACT ACT. The law expands health care and general benefits for veterans, and their surviving family members. The Act’s full name is Sergeant First Class Heath Robinson Honoring our Promise to Address Comprehensive Toxics (PACT) Act.  It is the single most significant expansion in over thirty years to help veterans.

As we can all recognize, military services may expose our service members to substances that have increased adverse health risks for them. The White House has acknowledged risks like asthma, cancer, and other conditions that can take years to manifest. Therefore, it can be difficult for service members and veterans to establish the causal connection between the disabilities they suffer and their years in service to our country.  

This new act is named after Sergeant First Class Heath Robinson. He was a combat medic who passed away from a rare lung cancer after years of service. The PACT Act improves access to health care screenings and services related to potential toxic exposures. The Act also gives post-September 11 veterans more time to seek VA health care resources, from the previous rule of five years from their date of discharge from service to ten years from their discharge. There is also an open enrollment period for veterans who otherwise do not meet these criteria. This means more veterans can enroll in care without having to demonstrate a service-connected disability.  

This difference in VA process significantly changes how the VA makes its decisions on environmental exposure claims and increases veterans’ access to the care they need. This new Act also makes law the VA’s new process for reviewing exposure and service-related injury for chronic conditions. This law is important for individuals who have a hard time showing their specific health situation, but the overall picture of the aggregate injury is clear. There is also a requirement in the Act for the VA to have external input in their review process. This increased transparency should also speed up policy decisions on exposure concerns the VA has to evaluate.   

The speed with which veterans can access their benefits is improved. PACT decreases paperwork and exams needed by veterans for twenty-three specific conditions veterans may develop before the veterans can access health care and disability compensation. There are eleven respiratory conditions, and several forms on cancer on this list, including reproductive cancers, melanoma, pancreatic cancer, kidney cancer and some brain cancers. If a veteran passes away from one of these specified conditions, his/her survivors may also be eligible to make a claim for benefits.  

Under the requirements of PACT the VA will also be required to conduct new studies to evaluate the health trends of veterans who have served in Southwest Asia in the Gulf War, and 9/11 veterans. The studies will examine the impact of toxic exposures on these veterans. The VA will be convening a new interagency group to develop plans to further research toxic exposures.

There will be increased outreach and regular screening required, which may catch issues earlier, and improve treatment options and outcomes for the veterans. PACT will also enhance the education of those working for the VA so that they are better equipped to screen veterans for toxic exposure.     

Finally, PACT invests in the VA, by authorizing thirty-one major medical health clinics and research facilities in nineteen states.  

PACT will greatly improve access and benefits available to the Veterans in their time of need.  

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Taking Time Off to Vote is a Right in California

This week’s question comes from Laird in Oakland: I work in construction, and I am often at the worksite for 10-12 hours each day. I often don’t get off work until after 7 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 job site 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.

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Public v Private Liability: Can I Sue A Government Entity?

Written By Chris Dolan

This week’s question comes from anonymous: My daughter tripped in the high school parking lot she walks through after softball practice.  It was already dark and there were no direct lights and she tumbled down a nearby ravine. Luckily, she only had some minor cuts and bruises, but I am worried that another kid will get seriously hurt. My friend got hurt in a shopping center parking lot. He sued and got a settlement. Can this be done if someone is hurt on the school grounds?  Is there anything that can be done to fix the lights, or put up a fence? 

Thank you for writing about the shared safety concerns of many parents. When a child goes to school there is an expectation that the school will have measures in place to keep all those attending the school safe. When there is a hazard such as the one you describe, it is an excellent idea to notify the school, in writing, of the problem. It may help the school make changes, and even if they don’t, it may help someone seriously injured seek justice. The reasons will become clear below.  

You mentioned your friend who was hurt in a private shopping center. This raises an important distinction in the law. There are many differences between suing a governmental entity compared to suing a private, or non-Government defendant. In general, government cases are more involved and require specialized knowledge. 

For instance, when suing a state-based governmental entity, such as a school, there is an initial requirement that a Government Claim be filed. That means that to successfully maintain a lawsuit, a person must have first explained the basis of the claim to the entity itself and given them an opportunity to respond. The time limit to file this claim is very short. In most instances the claim must be made within six months.  Generally, the claim will be denied, and then there is another 6 months to file a lawsuit.  For private entities, for this type of incident, the time to file a lawsuit is generally two years. That two-year statute of limitations is generally extended for a minor until they turn eighteen.  Unfortunately, that is not the case when suing a government. The requirement to file a timely Government Tort Claim is not, generally, extended beyond the 6 months.

The actual cause of action, the name of the basis for recovery, in a lawsuit is also different. The cause of action against a government entity is called “Dangerous Condition of Public Property,” where against a private entity, it is called “Premises Liability.” They have very similar elements which much be proven, but there are differences. Both require that the defendant own or control the property in question, and that the defect is a substantial factor in causing the harm. However, among other differences, where a public entity is concerned, it must have had to “know, or should have known” of the danger for a long enough time to have protected against it. Whereas a private business must “be negligent in the use or maintenance of the property.” In many cases, for a private business this can come down to making reasonable inspections to seek the danger and warn against it.  This is where your written complaint comes into play. If informed in writing of a defect, a public or private defendant is now on notice of the defect and can make changes, or repairs. If they do not, and someone is hurt, they now “know or should have known” or were negligent in not repairing it. 

Perhaps the biggest difference, and the most daunting to those unfamiliar, are the government immunities. Historically, people had no right to sue the government, an ancient concept called Sovereign Immunity. Over time, the government passed laws allowing lawsuits where someone is injured. However, they maintain many “immunities.” Immunities act like a get-out-of-jail-free card. If the government enjoys a particular immunity, they can force a lawsuit to be dismissed- thrown out. There are many, but the most often used is called “design immunity.” Where a government has considered a design, and it was approved at high enough levels, they are immune from lawsuits based on that design. It can be an infuriating impediment unless an attorney can show that it doesn’t apply, no longer applies, or that conditions have changed to the point it is no longer the same design. 

As you can see, this is a complex area of law with many hurdles and pitfalls. If you or someone you know is injured, make sure to speak to a knowledgeable attorney, such as The Dolan Law Firm. And write your letter explaining the dangers at your daughter’s school. 

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Who is responsible for a dog bite or dog attack?

Written By Chris Dolan and Carole Okolowicz

This week’s question come from Phill in the North Bay: I am avid hiker and enjoy being outdoors. Not sure if dogs are getting more popular in the last two years, but it appears that I see more people with dogs on the trail now. Some dogs are friendly looking. Some dogs are not so friendly looking, especially when they have the chrome prong leash and they are pulling hard on it. Can you tell me who is ultimately responsible for a dog bite or dog attack?  

Phill,

Thanks for your question. Dogs provide countless benefits to humans including companionship. But these domesticated animals can still lose control and bite or attack people. A vast majority of animal attacks in the US and California are inflicted by dog bites. The California Department of Public Health estimates there are over 5 million dog bites a year in the U.S. Children are more than twice as likely as adults to be the victim of a dog bite.

Animal attacks can be frightening and can result in serious physical and emotional injuries, including severe cuts, abrasions, puncture wounds, infection, lost eyes, permanent disfigurement, scarring and psychological trauma.

Under California law, dog and other animal owners are generally strictly liable for the injuries caused by their animal. Strict Liability means that a dog owner is liable for injuries and damages caused by their dog. The law covers anyone bitten by a dog in a public place or while lawfully in a private place, including the dog owner’s property. It does not matter whether the dog has any history of vicious behavior. If the dog bites someone, the owner is liable.

Under some circumstances, in addition to the owner of the dog, the owner of the property where the dog resides may also be responsible for your injuries, if different from the dog’s owner. If you were attacked on the owner’s property or if you know or believe that a dog escaped from an enclosed yard, for example, keep track of the property’s address.

There are some circumstances when an animal injures another party and the owners are not Strictly Liable. These cases generally involve animal attacks where there was no actual “bite.” For example, a dog may cause a collision or may chase a person riding a bike and cause them to crash. Many situations can occur where an owner has the responsibility to control their animal and they fail to do so. Under a general theory of negligence an owner or other person in control of an animal can be liable for the injuries caused by their animal.

If you have been bitten by a dog you are likely entitled to compensation for your injuries and other damages. In a civil lawsuit you can recover both economic and non-economic damages. In order to get compensation for your losses, you must demonstrate that dog bite or other animal attack caused your injuries and other damages.

Economic damages include the expenses related to any injuries caused by the animal attack. This includes:

  • Medical Expenses (past and future)
  • Lost Wages
  • Surgery
  • Wound Care
  • Lost Earning Potential
  • Physical Therapy

Non-economic damages can also include:

  • Psychological Distress / Trauma
  • Mental Anguish
  • Pain and Suffering

Contact an Animal Attack Lawyer or Dog Bite Lawyer

Following an attack or dog bite, you have the right to seek out legal help to obtain compensation. An experience attorney will help you determine what legal options you have and can assist you in obtaining compensation for your injuries.

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What Are Some of My Rights As a Pedestrian?

Written by Christopher B. Dolan

This week’s question comes from Kevin in San Francisco: I live in the City and like many people, I do not own a car. Too expensive. I tend to walk often and enjoy it. Can you talk more about pedestrian law and pedestrian safety. Seems like every day I have to make sure I do not get sidelined by an electric bike or scooter. Even when I cross the street on a crosswalk, and I have the green light, cyclists and scooter riders just speed towards me. What are my rights? Don’t I have the right of way? 

Kevin, thank you for writing us. You are right to feel concerned about the risks to your safety as a pedestrian in San Francisco. Traveling as a pedestrian has become increasingly risky in the past decade. According the National Highway Traffic Safety Administration pedestrian fatalities have increased by 46% from 2010 to 2019. 

San Francisco is more densely populated than most major U.S. cities, and has some of the highest levels of traffic in the world. On top of that, millions of people visit San Francisco every year. In a city like San Francisco, the danger to pedestrians seems to be an accepted fact of life, as it is in other major cities, yet drivers still are liable for the injuries they cause to pedestrians when they hit someone due to speeding, inattention or distraction, impaired driving, or some other factor.

In such a dense city the risks are high when traveling as a pedestrian. A moving bicycle, scooter or motor vehicle can cause catastrophic injuries and death when they collide with a pedestrian. From 2016 to 2020 there were over 4,000 pedestrian crashes in the San Francisco Area, with nearly 80 pedestrians killed and thousands more injured. 

Pedestrian crashes are much more likely to occur in inner-city neighborhoods, the Tenderloin, SOMA, Mission, and Downtown specifically. However, on a per crossing basis, individual pedestrians are at a higher risk of being struck by vehicles in the less dense, more residential areas, meaning anywhere in San Francisco there are risks of being injured as a pedestrian. 

Pedestrian crashes are often caused by negligence on part of a driver. Most pedestrian injuries and deaths occur at nighttime and drivers impaired by drugs and alcohol raises the risk of pedestrians being hit by a driver’s negligence. It is important to always assume a driver does not see you, and stay out of the way of any moving bicycles, scooters or motor vehicles. 

Another major cause of pedestrian injuries is speeding vehicles. Speeding vehicles increase the likelihood of injury and increase the severity of the injury. The body is a fragile thing and you should always be cautious when approaching a roadway as a speeding vehicle can come out of no-where and cause devastation. 

With chaotic streets, bustling traffic, and a growing population of bicycle and scooter riders, what are a pedestrians rights and how do they protect pedestrians?

CVC § 21950 is the primary Right-of-Way law in California which states that,

“The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection.”

This law requires drivers to slow down and exercise due caution to keep pedestrians safe.

Unfortunately, the law is not completely straightforward, and CVC § 21950 also states,

“No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard.”

Drivers have further duties under CVC § 22350 which is commonly known as the “basic speed law.” This section prohibits those driving motor vehicles from driving faster than what is reasonable in a given circumstance. Under California’s basic speed law a driver must drive at a safe speed that does not endanger the safety of pedestrians.

Pedestrians do not always have the right of way, and in cities like San Francisco the law sets forth specific guidelines for when a pedestrian has the right of way or not. Even though pedestrians do not always have the right-of-way, if a pedestrian violates their duties it does not mean a motorist or bicyclist is free to hit them without liability for the injuries. 

Just because a pedestrian has the right-of-way does not protect them from being injured. Drivers failing to yield to pedestrians with the right-of-way was the primary cause for more than 42 percent of pedestrian collisions from 2016 to 2020. The law will not protect you from injury from those who do not follow it. The law will only provide you with an avenue to get compensated for your injuries. 

No amount of compensation following a catastrophic injury or death will truly pay for the damage of a pedestrian accident. As a pedestrian you should keep yourself as safe as possible when traveling around the streets. You should do the following as a pedestrian to reduce your risk of injury or death:

  • Wear visible clothes, especially at night time. If it is dark bring a flashlight and reflective clothing. 

  • Use crosswalks to cross streets, but do not put your trust in having a green light. ALWAYS check for oncoming motorists, bicyclists and other riders before you cross the street.

  • Do not walk in bike lanes. Always use the sidewalks and stay away from the roadway and bike lanes.

  • Stay aware of your surroundings when traveling. This means avoiding noise canceling ear buds and other distractions. 

Your safety should be your primary concern when traveling on foot. Even the sidewalks can pose risks to pedestrians. Watch out for holes, cracks and unkept walkways. 

If you are ever injured in San Francisco you should contact an experienced personal injury attorney who is knowledgeable about pedestrian laws and will fight to recover compensation from those responsible.

Be safe out there Kevin, thank you for voicing your concerns.

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