Personal Injury

If you’re in the stands, keep your eye on the ball

This week’s question coincides with baseball season, which is the perfect time of year for me to remind readers of an important legal issue relating to their enjoyment of America’s pastime:

Q: “Who is responsible if someone gets hit with a line drive, foul ball or broken bat while watching a game?”

A: As a lawyer — and a big Giants fan — I like to start off the season by reminding people to put down your cellphone 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. Indeed, Bloomberg reported in 2014 that roughly 1,750 spectators a year are injured by batted balls at all of the major league ballparks throughout the United States. 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, thankfully, are minor, there are reports of severe injuries and even death due the use of wooden bats and presence of 90 mph fastballs.

In a 2015 Boston Globe article, baseball statistician Edwin Comber said about 73 percent of foul balls go into the stands. A 2000 lawsuit against the Boston Red Sox revealed that during a five-year period in the 1990s, 36 to 53 fans per year were hit by balls outside the field of play. Indeed, there have been reports of serious head injuries, skull fractures and even brain injuries as a result of bats and balls entering the stands.

As fans demand to be ever-closer to the action, and as high-priced seats are moved closer to the field, 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. 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 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, she/he “assumes the risk of being struck by thrown or batted balls; and, if injured thereby, is precluded from recovering damages therefore.”

In Neinstein v. Los Angeles Dodgers Inc. (1985), the Court of Appeals held “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 a plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: One, place all spectator areas behind a protective screen, thereby reducing the quality of everyone’s view and changing the very nature of the game, since players are often able to reach into the spectator area to catch foul balls; or two, continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the result that persons of meager means might be “priced out” of enjoying the great American pastime.

To me, neither alternative is acceptable. It is not the role of the courts to effect a wholesale remodeling of a revered American institution through application of the tort law. This decision was in line with one handed down in Ratcliff v. San Diego Baseball Club of Pacific Coast League (1938), in which the Court of Appeals held that a spectator who voluntarily occupies an unprotected seat assumes the risk of being struck by thrown or batted balls.

As with almost everything, there are some exceptions in this line of legal reasoning. For example, the courts have held that a franchise may be held liable for injury that occurred while a mascot distracted a fan during play, resulting in a fly ball to the face. (Lowe v. California League of Prof. Baseball (1997). No one is liable for a bat that inadvertently gets loose if the park owners have provided some areas of protected seating and have adequately screened the areas most likely to be at risk of flying balls and bats.

Just remember: The nosebleed seats may prevent you from getting a bloody nose.

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

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

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

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

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

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

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

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

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.

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.

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.

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.

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

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

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

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

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

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

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

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

Consequences of Vehicular Homicide

Jane in San Rafael asks: “I am an avid bicyclist and supporter of the Marin and San Francisco Bike Coalitions. It is frightening to ride on city streets. Last week there was a DUI-related fatality in Marin and another bike death in Windsor. What does the law do to punish people that kill bicyclists? Maybe letting readers know of the penalties might help them think twice and prevent more of these deaths.”

Jane, as a supporter of the Marin, Oakland, and San Francisco Bike Coalitions who rides with his children, I am horrified to see the increase in injury and death occurring in the cycling community. I am intimately familiar with the case in Windsor: we have been retained to represent the family of the young woman who was killed by a large truck. The Marin case, involving the drunk driver, is very tragic: people ruining their own lives by drinking is a shame, and when they kill innocent people on top of that, it’s criminal.

According to the National Highway Traffic Safety Administration, 3602 people were killed in California motor vehicle collisions in 2017. The majority of fatal collisions involve more than one vehicle and other vehicle occupants are the most likely victims of fatal collisions, followed by pedestrians, motorcyclists, and bicyclists. Thirty-one percent of these involved at least one driver with a blood alcohol level above the legal limit and 20 percent involved a driver with at least twice the legal limit. California Vehicle Code 23152 makes it unlawful for a person who is under the influence of any alcoholic beverage or drug to drive a vehicle while intoxicated, which is presumed at a blood alcohol level of 0.08 percent or greater, by weight. Commercial drivers, and drivers carrying passengers in exchange for compensation (taxis, Uber, Lyft, etc.) are presumed to be intoxicated if they have a blood alcohol level of .04 percent or greater.

Accidental deaths caused by motor vehicles generally fall under the rubric of vehicular manslaughter. California Penal Code (CPC) Section 192(c) defines vehicular manslaughter as the unlawful killing of a human being while: (1) driving a vehicle in the commission of an unlawful act (not a felony); or (2) driving a vehicle in the commission of a lawful act which might produce death in an unlawful manner. Vehicular manslaughter may be committed with or without gross negligence, defined as so slight a degree of care as to raise a presumption of a conscious indifference to the consequences. Causing death while perpetrating an accident insurance scheme, where the vehicular collision was knowingly caused for financial gain, may also be tried as either vehicular manslaughter or murder. If the driver is acting lawfully in a lawful manner, a resulting death is not considered a homicide.

According to CPC Section 193, the sentencing and punishment for vehicular manslaughter depends upon whether the offense is charged as a misdemeanor or felony. A misdemeanor vehicular manslaughter conviction is punishable by up to one year in county jail. A felony vehicular manslaughter conviction is punishable by up to six years in state prison. We recently handled a case on Highway 680 where a slow-moving construction crane, without its lights on and without warning or guides, entered the freeway from a staging area directly into 65 mile per hour traffic, causing death when another driver collided into the rear of the crane. In that case, the defendant crane driver plead no contest to vehicular manslaughter and was subject to a year of house arrest. The driver and the insurance company representing the business paid many millions to compensate the family for the loss of their husband and father.

Cases where the driver was intoxicated often command more severe penalties under CPC Section 191.5 defining “gross vehicular manslaughter while intoxicated.” Gross vehicular manslaughter while intoxicated, if committed without malice, is punishable by imprisonment in the state prison for up to four years; with malice, for up to 10 years. A person with one or more prior convictions of drunk or reckless driving who causes a fatality is subject to imprisonment in state prison for a term of 15 years to life. Gross vehicular manslaughter while intoxicated may be charged even if the driver’s blood alcohol level does not exceed the legal limit, as well as when an impaired driver is not the sole cause of death. In one case, a man with a blood alcohol level of .03 percent was traveling late at night on his way home from a concert, proceeded to fall asleep and rear-ended a car. After the initial accident, the occupants were able to get safely to the shoulder, but a truck driver, not paying attention, swerved to avoid collision with the car and killed the passenger of one of the vehicles. The impaired driver who caused the initial collision was charged with gross vehicular manslaughter while intoxicated.

Finally, if the driver’s conduct rises to a such level of wantonness as to support a finding of “implied malice,” it may be prosecuted as second degree murder. “Malice” is the mental state that distinguishes manslaughter, caused by the perpetrator’s criminal negligence, from murder, in which the perpetrator either intends to kill or acts deliberately with conscious disregard for human life despite knowledge that their conduct is dangerous. The California Supreme Court, in its seminal 1981 decision, People v. Watson, held that the statutory language crafted specifically for vehicular manslaughter does not preclude a charge of second degree murder where a perpetrator exhibited subjective appreciation of a high degree of risk to human life. In that case, the defendant had driven over 80 miles per hour in a 35 mile per hour zone with more than twice the legal blood alcohol level. When a driver willfully consumes alcohol to the point of intoxication, knowing that they will later operate a motor vehicle, they can be held to exhibit a conscious disregard for human life. The capability of the intoxicated driver to form malice in the act of reckless driving may later be evaluated with respect to a diminished capacity defense.

The vehicular homicide cases I have handled have involved people from all races and socioeconomic backgrounds. The law doesn’t discriminate between a rich guy driving a Porsche and a poor laborer driving a beat-up pickup truck. District Attorneys have little sympathy for drunks or unlawful drivers who cause harm or death. I hope that anyone reading this will refrain from driving even if they have had “only a couple of beers.” My heart and prayers go out to the families of the bicyclists who have been so senselessly killed.

Residential Pool Safety Regulations Updated

Summer is upon us and each year it’s important to revisit safety laws and best practices in regard to residential swimming pools and spas. Drowning is California’s second leading cause of death for children aged 1-4 and even nonfatal drowning injuries can result in long-term disabilities from irreversible brain damage. Since most drownings in young children occur in home swimming pools, it is especially important that owners of residential pools take proper precautions to keep unaccompanied children out and, in case a child does enter a pool unaccompanied, to prevent injury by the suction of pool pumps and filters.

Who Is Responsible If Your Hit By A Ball During A Game

It’s baseball season again and, therefore, that time of year for me to remind readers of an important legal issue relating to their enjoyment of baseball namely, “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.

Personal Injury

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Personal Injury

If you’re in the stands, keep your eye on the ball

This week’s question coincides with baseball season, which is the perfect time of year for me to remind readers of an important legal issue relating to their enjoyment of America’s pastime:

Q: “Who is responsible if someone gets hit with a line drive, foul ball or broken bat while watching a game?”

As fans demand to be ever-closer to the action, and as high-priced seats are moved closer to the field, the risk of injury goes up — just as fast as the price.

Just remember: The nosebleed seats may prevent you from getting a bloody nose.