I Was Involved in a Motorcycle Crash: What Can I Do?

Written By Chris Dolan

This week’s question comes from Rob in Foster City, who writes: I was in SoMa last weekend, and got in a motorcycle crash. Coming home late at night on my motorcycle, when a van in the left lane beside me swerved into my lane nearly hitting me. I jammed on my brakes and hit the back of the van. The driver said he had no insurance. The van he was driving belonged to the company he worked for. I broke my wrist, and my bike is a wreck. What can I do?

Thank you for your question, Rob. I started riding motorcycles as a teenager and, as a lawyer, regularly represent injured motorcyclists. One of the most common scenarios in the motorcycle crash cases I litigate is when a driver, without signaling, cuts off a motorcyclist or turns suddenly from the opposite lane in front of the motorcyclist. In both cases, the resulting collision can be fatal to the motorcyclist. I am relieved your injuries, while serious, were not life-threatening.

Here, the van driver violated California Vehicle Code Section 21658, which states,

“Whenever any roadway has been divided into two or more clearly marked lanes for traffic in one direction,” it is the rule that “(a) A vehicle shall be driven as nearly as practical entirely within a single lane and shall not be moved from the lane until such movement can be made with reasonable safety.”

I assume the damage to your motorcycle was more than $750. If that is the case, you have to report the accident to the DMV within 10 days of the accident. If you have not already filed the report, go the DMV website, search for Form SR-1, complete the form and send it in right away to the DMV.

You didn’t mention whether you have motorcycle insurance. Assuming you do, you need to ask your agent about whether your insurance policy contains uninsured and/or underinsured motorist coverage. What is uninsured and underinsured motorist coverage? Let’s start with what it isn’t.

When we think of insurance, we think of liability insurance. It protects your assets if you are at fault for an accident and you hurt someone or damage someone else’s property.

Liability insurance does not, however, protect you from damages you suffer in an accident that is someone else’s fault. That’s where uninsured and underinsured motorist coverage applies. Because many drivers in California violate the law and drive without insurance – or have a bare bones policy – California law requires insurance companies to offer consumers this coverage.

Even though the other driver did not have insurance, your insurance policy may be sufficient to cover both the financial loss you suffered – your wrecked bike and any days missed from work – as well compensate you for your broken wrist and medical expenses due to the collision.

What happens if you don’t have insurance?

I hope that is not case. But if it is, the company that owned the van may be legally responsible for your motorcycle crash injuries under the legal doctrine respondent superior, which is Latin for “let the master answer.” The doctrine is codified in California Civil Code Section 2338. It holds an employer responsible for the torts (wrongs) committed by its employees that fall within the “scope and course of their employment.”

You have to show that that the employee was negligent (acting in a manner that was unreasonable or illegal), and that the employee was also involved in the employer’s business enterprise at the time of the collision.

Here, the employee’s negligence is clear: He violated the vehicle code. Was the van driver also involved in the employee’s business? If he was delivering an item for the company or returning the van to the company parking lot after he completed his work shift, the answer is yes.

Determining if an employer is legally responsible for an employee’s negligence requires a thorough investigation of the facts. I suggest you consider contacting an experienced motorcycle crash attorney to advise you further on your legal rights and remedies.

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Motorcycle Laws in California: What Motorcycle Rules and Laws Do I Need to Know?

Written By Chris Dolan and Cioffi Remmer

This week’s question comes from Anonymous who asks: I am thinking of getting a Motorcycle. What are the rules for operating motorcycles on the road here in California?

Dear Anonymous,

Thanks so much for your question. Since the pandemic, California roadways are seemingly returning to normal (i.e., traffic).  Couple that with the end of remote learning and back-to-school, and ‘tis the season to be stuck in traffic. As motorcycles whiz by the rest of us trapped in bumper-to-bumper traffic, some see danger in the two-wheelers, while others see inspiration.   

If you’re one of the inspired, Section 12500(b) of the California Vehicle Code requires a valid driver’s license or endorsement to drive a motorcycle. Section 12804.9(b)(4) specifies that the motorcycle driver’s license (Class “M1”) may be granted by endorsement on a class A, B, or C license upon completion of an appropriate examination. 

Examination

As an initial matter, you must be 21 years of age to obtain an M1 license or endorsement in California. However, if you provide evidence of completing a “novice motorcycle safety training program,” the D.M.V. may make an exception. (Cal. Veh. Code § 12804.9(i)).

In all cases, an M1 license applicant must take an examination. The examination consists of a driver knowledge test, a motorcycle knowledge test, and a motorcycle skills test.  All these tests must be passed before California issues the M1 license or endorsement. A “Certificate of Completion of Motorcycle Training” may help you avoid taking the motorcycle skills test, but the knowledge tests will still be required. (Cal. Veh. Code § 12804.9(g)). 

Insurance

The same financial responsibility laws that apply to motor vehicles apply to motorcycles. California requires insurance to operate a motor vehicle on the roadways. Currently, the law requires a minimum of $15,000 for injury/death to one person, $30,000 for injury/death to more than one person, and $5,000 for property damage. (Cal. Veh. Code § 16020, et seq.) Failure to provide evidence of financial responsibility can result in a fine of up to $750.

Is Lane Splitting Legal in California?

YES. Lane Splitting is LEGAL in California.  Section 21658.1(a) of the Vehicle Code defines lane splitting as

“driving a motorcycle…that has two wheels in contact with the ground, between rows of stopped or moving vehicles in the same lane, including on both divided and undivided streets, roads, or highways.”

Under subsection (b), the California Highway Patrol developed educational guidelines relating to lane splitting in a manner that would ensure the safety of motorcyclists and the drivers and passengers of the surrounding vehicles. To wit, the CHP has created several guidelines, lane splitting tips for motorcyclists, and guidelines for other vehicles.  

Some of the key guidelines for motorcyclists include:

  • The danger increases as overall speed increases.
  • It is typically safer to split between the far-left lanes than between the other lanes of traffic.
  • Riding on the shoulder is ILLEGAL; it is not considered lane splitting.

Some of the key messages for drivers of other vehicles include:

  • Lane splitting by motorcyclists is legal in California.
  • Drivers in the far-left lane should move to the left of their lane to give motorcyclists ample room to pass.
  • Intentionally blocking or impeding a motorcyclist in a way that could cause harm to the rider is illegal.

Helmets

All drivers AND passengers on motorcycles must wear a safety helmet that meets specific requirements established in the vehicle code.  It is illegal to operate or ride as a passenger on a motorcycle (including a motor-driven cycle).  Cal. Veh. Code § 27803.  

The helmet MUST meet Federal Motor Vehicle Safety Standard No. 218 (codified under 49 C.F.R. Sec. 574.218). This means that the helmet must be approved by the U.S. Department of Transportation. This standard lays out specific design elements related to helmets worn to protect the user from injury. The federal standard lays out threshold expectations that must be tested using particular means and parameters to ensure uniform testing methods. Moreover, section 27802 of the Vehicle Code specifies that it is illegal to sell or use motorcycle helmets that do not meet these requirements.  

Many attempts to repeal California’s helmet laws or limit them have failed.  California stands steadfast in its commitment to motorcycle driver and passenger safety.  As a potential rider, so should you.    

For more information, guidelines, and tips, please consult the California Highway Patrol’s Website at: https://www.chp.ca.gov/programs-services/programs/california-motorcyclist-safety

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Can I Get a New Lawyer in my Personal Injury case?

Written By Christopher Dolan and Nancy Villatoro

This week’s question comes from Anonymous who asks: Can I change attorneys at any time? What are things I should consider when doing so?

Dear Anonymous:

Thank you for your question. You have the right to discharge your attorney at any time and for any reason. In certain circumstances, your first-choice attorney may not be the best fit for you and your type of claim. You may realize that you can pursue a claim on your own or that another attorney better fits your needs. Here are some things to consider as you make your decision.

Generally, if you have signed a contingency agreement, changing attorneys does not cost you more money. When hiring a personal injury attorney, you have presumably signed a contingency agreement under California law, (Cal. Bus. & Prof. Code § 6147; Fletcher v. Davis (2004), 33 Cal. 4th 61, 71.) This agreement states that your lawyer gets one-third of your verdict or settlement if any. You will reimburse your attorney for any costs incurred.  When you change lawyers, your new lawyer and your old one will share this fee. The total amount you pay for attorney fees will likely remain the same depending on your new agreement. The attorney will split the fees according to how much work was done on your claim. Additionally, changing lawyers may be in the best interest of your claim. You may find an attorney that will work harder for you and has more resources may get you a better outcome. When making the change, by law, your old attorney is required to provide you and/or your new attorney with all your records.

In other less desirable circumstances, an attorney may elect to decline or terminate their legal representation. In California, the Rules of Professional Responsibility, Rule 1.16 lists the circumstances where an attorney may withdraw from representing a client. Withdrawal most commonly occurs when:

  1. “the client by other conduct renders it unreasonably difficult for the lawyer to carry out the representation effectively;”
  2. “the client breaches a material term of an agreement with, or obligation, to the lawyer relating to the representation, and the lawyer has given the client a reasonable warning after the breach that the lawyer will withdraw unless the client fulfills the agreement or performs the obligation; or
  3. “the client knowingly and freely assents to the termination of the representation” (this one is most likely to have less contention.)

Number one and two above generally may occur after the attorney and the client have irreparable differences, the client has become unreasonably difficult, or the client refuses to cooperate during the litigation. 

An attorney that is either discharged or withdraws prematurely can prevent the former client from “settling around” their lien by filing a notice of lien in the pending action. (Valenta v. Regents of University of California (1991) 231 Cal. App. 3d 1465, 1469–1470.) However, to enforce the contractual lien, the attorney will have to seek an independent action against the former client to establish the lien’s existence, determine the amount of the lien, and enforce the lien. (Carroll v. Interstate Brands Corp. (2002) 99 Cal. App. 4th 1168, 1173. 2002.) 

If an attorney is discharged or withdraws “on the courthouse steps” and substantial representation has occurred, the court will consider this to determine the reasonable value of the attorney’s services. The court may justifiably find that the entire fee was the reasonable value of the attorney’s services. (Hood vs. Gonzalez (2019) 43 Cal.App.5th 57, citing Fracasse vs. Brent, (1972) 6 Cal.3d 784; See also Oliver v. Campbell (1954) 43 Cal.2d 298.)

Under a contingency fee agreement, when an attorney withdraws from representation based on “justifiable cause,” he or she is entitled to recover in quantum meruit. (See Rus, Miliband & Smith v. Conkle & Olesten (2003) 113 Cal.App.4th 656; See also Estate of Falco (1987) 188 Cal.App.3d 1004.) Under quantum meruit the law implies a promise to pay for services not gratuitously rendered. (See Long v. Rumsey (1938) 12 Cal. 2d 334.)  “The measure of recovery in quantum meruit is the reasonable value of the services rendered provided they were of direct benefit to the defendant [former client].”  (Palmer vs. Greg (167) 65 Cal. 2d 657, 660.) A quantum meruit recovery requires a trial court to consider several factors:

“‘[t]he nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure of the attorney’s efforts, the attorney’s skill, and learning, including his [or her] age and experience in the particular type of work demanded.” (See Mardirossian & Associates, Inc. v. Ersoff, (2007) 153 Cal.App.4th, 257,  272.)

The underlying idea behind quantum meruit is the laws distaste for unjust enrichment. If one has received a benefit which one may not justly retain, one should restore the wronged party to his or her former position by either returning the “thing or its equivalent in money.” (See 1 Witkin, Summary of Cal. Law (9th ed. 1987) Contracts, Section 91, p. 122.)  

Although changing your attorney may seem simple, do your research before retaining an attorney and seek a second opinion when needed. In some circumstances, clear communication can be your best solution. 

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School is in Session: Drivers Slow Down for Students

Written By Christopher Dolan

This week’s question comes from Becky M. in SoMa who asks: When I was dropping my daughter off at elementary school last week, I drove up the street next to the school. It’s a narrow road with one lane in each direction. I was waiting in line for curbside drop-off when a yellow school bus stopped in front of us and turned on its red flashing lights. I stopped behind the bus and waited, even though I could have passed the bus in the lane for oncoming traffic. All the other cars behind me started honking and passing the bus on the left side. I was in a rush to drop off my daughter, but I waited for the lights to stop flashing before I went ahead and dropped her off. I thought I was supposed to wait behind the bus, but no one else was waiting, did the law change?

Thank you for your question, Becky.

The law has not changed. You did the right thing by stopping for the bus and remaining stopped until the bus turned its flashing lights off. California Vehicle Code section 22454(a) requires:

“[t]he driver of any vehicle, upon meeting or overtaking, from either direction, any school bus equipped with signs as required in this code, that is stopped for the purpose of loading or unloading any schoolchildren and displays a flashing red light signal … visible from the front or rear, shall bring the vehicle to a stop immediately before passing the school bus and shall not proceed past the school bus until the flashing red light signal … cease[s] operation.”

Simply put, this means that when the bus stops and flashes its red lights, located at the top front and back of the bus, you must bring your car to a stop, even if you are traveling in the direction opposite the bus. You must stop with enough clearance to allow for children to safety cross the street in front of the bus. You also must stay stopped until the bus turns off its red flashing lights, even if you do not see any children crossing the street. While it might seem inconvenient to stop and stay stopped for such a long time, this is an important, life-saving rule. When the bus is stopped with its red lights flashing, it means that children are either getting on or off the bus and are likely to be crossing the street. Because the bus is large and the children are small, your view of the children crossing may be obstructed.

The consequences for breaking this law can be astronomical — your careless decision could take away a precious, young life. Even if you are lucky enough not to harm a child while passing a stopped bus with flashers activated, your selfish act can earn you a $1,000 fine and a 1-year license suspension.

With school back in session for Fall, it is a good time to remind ourselves to slow down, be patient, and drive safely. Here are a few good rules of thumb to help keep school children safe:

  • School Zone Speed Limits: Drivers should always observe reduced school speed limits, typically 25 mph or even as low as 15 mph. Watch out for school crossing guards and follow their instructions.
  • Watch for Pedestrians and Bicycles: Drivers should be extra vigilant in keeping an eye out for children walking, biking, or scootering to school. Young children riding bikes or scooters can be unsteady, unpredictable, and are often inexperienced.
  • No Distractions: Keep your eyes on the road rather than on your phone or any other device. Taking your eyes off the road for just two seconds means that you may not see a child crossing in front of your car.
  • Talk to your Child: Teach your child to be safety-conscious. Remind your child to keep a proper lookout for cars in the roadway, be alert while crossing the street, and make sure that drivers see you/acknowledge your crossing. Also, remind your child to be aware of cars entering driveways or backing up.

If you were injured in an accident caused by a careless driver, you have the right to seek compensation for your economic and non-economic damages. Economic damages include items such as property damage, medical bills and lost wages; non-economic damages include things like pain and suffering, physical impairment and inconvenience. It is important to retain a skilled trial attorney to ensure that you receive full and just compensation for your injuries.

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Do I Need a Lawyer Near Me if I was Involved in a Car Accident Out of State?

Written By Christopher Dolan and Jeremy Jessup

This week’s question comes from D. Conger from San Bruno who asks: While traveling in Washington, I was involved in a motor vehicle collision that resulted in injuries. The funny thing is that I found out the person who struck my vehicle was from San Jose.  I had initial treatment in Washington and more once I returned home. In addition, I have missed a substantial amount of time from work. I would like to seek compensation for this collision but don’t have the energy to try and find an attorney up there. Do I have to have an attorney from the state of Washington represent me?  

Dear D.,

I am sorry to read about your ordeal and wish you a speedy recovery. With the summer months upon us, research shows that summer travel is returning to pre-pandemic levels. The most recent data on summer travel suggests that it will be busy this year, as a recent survey from The Vacationer found that nearly 81 percent of Americans were planning to travel. According to Janeen Christoff of Travel Pulse, road trips remain one of the most popular forms of travel in a post-pandemic world. The nearly 80 percent of travelers who said they were going to take a road trip make up approximately 206 million Americans. Almost 20 percent will travel more than 500 miles from home by car. Also, nearly 7 percent say they will take road trips more than 1,000 miles from home.

With all those people on the road, collisions are bound to occur across state lines.

The simple answer to your question about whether you need local counsel, is that it depends. In most cases, while you live out of state, you may need to hire an attorney licensed in the state where the collision occurs to represent you. However, that is not always the case.  

The correct venue (the county or district where a case must be heard) is one of two places. It is where the injury-causing event occurred, in this case, the motor vehicle collision, or where the defendant resides.  If one were to elect where the defendant resides for your case, that would be Santa Clara County, here in California. In that case, you would not need to find an attorney up in the state of Washington. However, the important thing to remember is that in most cases, the laws of where the collision occurred would still apply; in this case, that would be the state of Washington. Some attorneys are comfortable dealing with the laws of other states, and some are not. 

However, let’s assume that the defendant was a resident of the state of Washington. Again, local counsel would be required, but you could still hire someone from California. In that case, the attorney, if they agreed, could seek to get “pro hoc vice” (Latin for “on this occasion”) into the State of Washington. If the court grants the motion, the California attorney, with the supervision of the local attorney, would be granted a temporary license to practice in the state of Washington, but only on your case. In most instances, the California attorney you select will already know someone in the other state, which is why they agreed to accept the case. You would not need to try and find two attorneys. 

With the advancement of technology and courts allowing for remote appearances, it is now as easy as ever for attorneys to represent clients in different states. For example, all attorneys at our firm are licensed in California. However, some are licensed in Oregon, Washington, Georgia, Arizona, Texas, and Massachusetts. We have handled all aspects of litigation in these states, including trials in some. 

Finally, an attorney in California may hold licenses in other states, allowing them to practice in multiple jurisdictions.  Essentially, this means that even though the attorney of your choice resides in one state, if they hold a license in another, they can freely practice there, as if they were local. 

Remember, no matter who you choose to represent you, be sure to document everything, lost earnings, medical treatment, and symptoms, and provide them to your attorney. As a team you will work together to get the best result.   

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Commercial Trucks on California Highways: Are Truck Drivers Specially Trained?

Written By Christopher B. Dolan

This week’s question comes from Steve, who asks: I’m originally from Southern California and now live in the Bay Area. I often visit family in Los Angeles and drive interstate 5 depending on traffic conditions, this drive can take me 7-8 hours. During my years of going and visiting my parents, I have seen several commercial truck accidents and have become concerned to the point where I try to stay far back or far ahead of any commercial truck. Some trucks can move rapidly into lanes, and I have seen some trucks swerve back and forth, almost causing a car crash. Are truck drivers specially trained? Is there a California hotline I can call to report bad truck drivers? What should I do if I am involved in a truck accident? Should I get a truck accident lawyer?

Hello Steve, thank you for your questions. You are right to feel concerned about driving around commercial trucks, and I encourage you to continue practicing the safe driving habits you describe. It is reasonable to feel the need to keep your distance from commercial trucks. In California, more than 3,000 truck accidents result in injuries every year, and approximately 300 Californians die annually in collisions with large trucks. The sheer weight and size of commercial trucks make them formidable figures on highways and the drivers in control of them should be held to a high standard to maintain safety on our roadways. 

So, what are these safety standards?

The California Department of Motor Vehicles (DMV) and the US Department of Transportation’s Federal Motor Carrier Safety Administration (FMCSA) regulate commercial trucks in California. FMCSA was established in 2000 with the primary mission of preventing commercial motor vehicle-related fatalities and injuries. The FMCA holds commercial drivers to a higher standard than ordinary drivers because of the risk of injury and death that comes with operating a large truck.

FMCSA requires any commercial truck driver to obtain a Commercial Drivers’ License (CDL) before they can operate commercial trucks on the road. To apply, CDL applicants must pass medical testing, vision testing, have their driving record checked, and complete 15 hours of behind the wheel training. To get a CDL, applicants must pass skills and knowledge tests geared to these higher standards. California DMV imposes additional requirements for applicants of a CDL in California.

How are truck drivers held accountable for failing to adhere to the higher safety standard?

It is vital for professionals and commercial truck drivers to be held accountable. Accountability occurs through the FMCSA and local authorities. Drivers with a CDL must adhere to the standards set forth by these regulators because failing to stick to these standards raises the risk of serious injury and death.

If you witness unsafe driving by a commercial vehicle, you can submit a complaint to the FMCSA Safety Violation Hotline (1-888-DOT-SAFT) (1-888-368-7238) from 5 am‒5 pm PST, Mon‒Fri. The FMCSA also has a portal for the public to report unsafe driving through the National Consumer Complaint Database. To file a complaint online, click here.

Or you can call the California Highway Patrol and file a report with them. Also, many commercial trucks will have a phone number or website on the back of their vehicle to file a complaint about their driving directly to their employer. 

What should you do if you are in a truck accident?

The first thing you should do, if possible, is getting to a safe location off the road and away from moving traffic to prevent further injury. You should call 911 as soon as possible. 

Make a report of what happened to the police. Collect the insurance information of the truck driver and other drivers involved.

Document everything at the scene of the accident. Take photos and video of the scene and any damages and injuries. Keep track of bills, costs, repairs, and medical costs. The more detailed your records are of costs, bills, repairs, etc., the better off you will be in obtaining compensation for those damages. 

Avoid discussing the accident with others, including insurance adjusters. Some insurance companies may reach out to you and ask you for a statement. You do not have to speak with the insurance company, and it is best that you leave that up to an experienced truck accident lawyer who is aware of pitfalls and can advocate for your rights.

After getting in an accident with a large truck, who’s to blame may seem straightforward. But, several different parties can be liable for a truck accident, including a negligent truck driver, a trucking company, or even a manufacturer who produced faulty parts. One of the most critical steps in obtaining compensation is to thoroughly investigate the causes of the incident to identify all responsible parties and uncover evidence of their wrongdoing.

Once insurance companies identify the at-fault parties, the work of obtaining compensation begins. Despite what insurance companies may portray, truck accident victims’ damages can go far beyond just their medical bills. Compensation is determined from economic and non-economic damages depending on the circumstances of the injuries and how it impacts the victim(s). Trucking and insurance companies have enough money to compensate you for your injuries, but they also have a big budget to spend on legal representation so they will not have to.  

When someone is seriously injured, or a loved one is killed in a truck crash it should not have to be an uphill battle to get the support needed to recover. Unfortunately, these large insurance and trucking companies have made the path to recovery a challenge. If you are ever in a truck accident, you should find a lawyer who knows how to negotiate with these companies and navigate you through the legal process to put you in the best position possible to have a healthy recovery. 

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California Laws Mandate Pool Safety for Children

Written By Christopher B. Dolan

James from Marin County asks: I just bought a house built in the 50’s. I have undertaken a significant amount of renovation both inside and outside. The home has a nice yard and a pool. The pool needs some work, and I am concerned because sections of the fence around the yard have fallen into despair. My neighbors have small kids and I want to be responsible and make the pool safe as I undertake the work. What guidelines do I have to make the pool safe?

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. 

To this end, the state of California has long set very clear requirements for pool safety, embodied in the Swimming Pool Safety Act, California Health and Safety Code (CHSC) Sections 115921 through 115829. As of January 1, 2018, the state legislature has updated these requirements in the hopes of further reducing home pool drownings. This column will spell out the differences in the updated law so that residential pool owners have the latest and most complete safety information available.

As a preliminary matter, the Swimming Pool Safety Act applies only to in-ground and aboveground structures over 18 inches deep intended for swimming or recreational bathing situated on the property of a single family home. CHSC Section 115921 provides a non-exhaustive list of regulated structures, including swimming pools, portable and nonportable hot tubs and spas, and nonportable wading pools; for the purposes of this column, I will refer to all such structures as “pools.” 

One significant impact of the new amendments to the Swimming Pool Safety Act is that it extends state pool safety requirements to single family homes in all municipalities, eliminating previous exclusions for homes within municipalities that issued their own, potentially conflicting, local swimming pool ordinances. Since the state now mandates all municipalities to participate, the amendments provide for state reimbursement of any resulting added costs incurred by local governments. It is important to note that this law still does not apply to public pools, pools at multifamily residences, or hot tubs equipped with compliant locking safety covers.

The main effect of the new amendments, however, is to double the required drowning prevention safety features needed to secure a permit to build or remodel a pool at a single family home. Since 1997, permits issued for pool construction have required residential pools to be equipped with at least one of seven drowning prevention safety features; on implementation of the new amendments, each pool construction must now include two of these enumerated safety mechanisms for extra protection in case one fails. As before, drowning prevention safety features must be inspected by a local building code official pursuant to final approval of the permitted pool construction, as well as building inspection reports conducted for real estate transfers. CHSC Section 115924 requires every pool construction contractor to inform consumers of the Act’s requirements.

CHSC Section 115922 provides an updated list of eligible drowning prevention safety features:

  1. a total pool enclosure isolating of the pool from the home;
  2. removable mesh fencing in conjunction with a self-closing, self-latching gate capable of being locked with a key;
  3. a manually or power-operated safety pool cover compliant with American Society for Testing and Materials (ASTM) Standard F1346-91;
  4. a continuous audible exit alarm on any door providing direct access to the pool;
  5. a self-closing, self-latching function with raised release mechanism on any door providing direct access to the pool;
  6. an alarm meeting ASTM Standard F2208 placed in the pool to sound upon accidental or unauthorized entrance into the water; or
  7. other protection independently verified to provide at least the same degree of protection. 

Specifications for approved fencing and gates can still be found in Section 115923; critically, enclosures must be a minimum height of 60 inches, with no more than two inches between the bottom of the enclosure and the ground, no gaps that would permit passage of a sphere of four inches, and no outside surface with features that could serve as handholds or footholds for a child of 5 years old or less to climb over. Also preserved from previous iterations of the Swimming Pool Safety Act, Section 115928 continues to require every new or remodeled pool to have at least two hydraulically balanced suction outlets per recirculation pump secured with anti-entrapment grates and separated by at least three feet that prevent a child being sucked into a vacuum that would be caused by a single drain.

Following California’s comprehensive pool safety regulations is a vital step toward preventing hundreds of unnecessary deaths and disabilities caused by accidental drowning. Here’s to a safe and happy swimming season!

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What Should I Do After Witnessing a Car Crash?

Written By Megan Irish and Christopher B. Dolan

This week’s question comes from Kevin who asks: I recently witnessed a car crash where a truck ran a red light and hit a woman in a small SUV. The truck completely ran the red and hit the woman. She had the green light, and I saw that the pedestrians walking her way had 8 seconds on their count down. I stayed at the scene and gave the injured woman my contact information, but I couldn’t stay long because I had my little boy with me and did not want to stand on the street for long. I also told her I saw that the truck ran the red and hit her, but I wondered what else I could have done to help. What do you think is helpful to do when you see a car crash?

Dear Kevin,

Thanks for staying and telling the injured person what you saw. In terms of what you can do as a witness, there are many things. First, make sure you are safe to stop at the scene of a collision. If it is not safe, you can call 911 and report the crash and provide a statement about what you saw. You can describe where you were and what you observed. Sometimes the investigating officer will call you back and conduct complete interview about the collision. They will refer to you as a witness in the traffic collision report and summarize your statement to them in the report. Be honest and as straightforward as you can be. Provide any specific details you can. However, if you can stay at a scene and speak to the people involved, that is great too.

When you observe a collision, here are a few things to look for:

Look at where pedestrians are walking, and cyclists are riding. Can you see the traffic signal light, and if so, what color is it for whose direction of travel? Are there protected turn lights for left-hand turning vehicles, and if so, what color are they? Can you see the count down for pedestrians crossing the street? if so, on what number is it? Was the driver avoiding any hazards? If so, what is it, where did it come from, and where did it go? Was the hazard also involved in the collision? Where are the involved vehicles stopped? Can you note the license plates? Are the drivers involved staying at the scene or trying to leave? Do you have a camera on you? Can you safely take some photos? Or a video?  If you can take pictures, try to capture the locations where the vehicles came to rest. Take photos of any debris that came off the cars, and any skid marks associated with the collision. Take pictures of the license plates of the vehicles involved in the crash, and the people who were driving the cars. If you have time and can capture the color of the light before it changes, that can be helpful too. Watch the traffic lights cycle through. Are there any problems with them, such as the same color showing for both directions at once? If that happens, then definitely try to get a video and bring it to the attention of the people involved in the collision, as they will need to try and get a video to provide to their insurance. Although this is a long list of things to remember to do, this information can be helpful when explaining who had the green and who had the red lights. If a person is badly injured, they may leave the scene in an ambulance, and they will not be able to relate what happened to the police. Any statements you provide can be helpful to the investigating officers and or insurance companies to understand how the collision occurred and who was at fault.

Liability

Determining who was at fault is crucial to establishing liability for a matter. Liability is the legal term for who is responsible for the collision and whose insurance company need to cover the costs of the repairs to the vehicles and the injury to the people. Liability is frequently ‘disputed,’ meaning insurance companies cannot determine who caused the collision. Therefore, they wait on making any payments until they can establish more evidence to prove one vehicle was responsible for the other. For instance, in the collision you observed, where one car ran the red light, it will be necessary for the person who had the green light to prove they had the green light to the other driver’s insurance. The parties typically dispute red light-green light cases, and an independent witness statement, such as your own, can be very helpful. The insurance companies will call you after a collision, and your statements will help the at-fault driver’s insurance take responsibility for the damages to the injured party. 

It is significant that you stayed and relayed what you observed. Your statement was likely beneficial to the drivers involved and is appreciated by those involved in a collision. 

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I Work for a Temporary Agency: Do I Have Legal Remedies If I’m Injured at Work?

Written By Christopher B. Dolan and Emile A. Davis

This week’s question comes from Mel in Oakland who asks: I worked for a temp agency and was assigned to work reception at a startup company. While I was working, the boss of the startup asked a few of us to move a large desk in the entrance way. When we were moving the desk, one of the employees lost their grip, and the desk fell directly on me, fracturing my ankle. I was the only temp and hoped to be made permanent.

Am I entitled to get worker’s compensation; can I sue them in court? Who is responsible for this- the startup or my temporary agency? I am lost, please help.

Dear Mel, 

I am sorry you suffered an injury at work and that the lack of guidance from your employers has compounded your frustration. Your question raises some interesting legal issues. The first issue is whether you would be entitled to worker’s compensation benefits. Generally, a person is entitled to worker’s compensation benefits if they are injured within the scope of or arising out of their employment. At first glance, that appears to be the case with your situation, but the employer who provides your paycheck is the temporary agency. The law has anticipated this type of situation, and there is something known as the “dual employment” or “borrowed servant” doctrine. The dual employment doctrine, at its core, recognizes that while the agency is your “employer,” the startup company is controlling the day-to-day activities of your work, and should also be recognized as your employer. The agency is considered the “general employer” and your relationship with the startup is what is known as a “special employer.”   

Whether this dual employment relationship exists is a question of fact and comes down to questions of control. The special employer must be controlling many of the aspects of the employment to be deemed responsible. They are very similar questions as determining if a person is an employee or independent contractor:

  • who determines when the workday starts and ends;
  • the ability to hire or fire;
  • the assignment of tasks and projects;
  • who is paying for the tools of the trade; and
  • similar issues of control.

In some cases, this can be a difficult analysis. However, in the standard reception position, the startup would be able to terminate your contract, ask you to answer phones in a specific way, greet people coming in, or even, move a desk. It seems, on the limited facts presented, that the startup would indeed be your special employer. That means that you would be eligible for worker’s compensation benefits since your injury arose out of and within the course of your employment.   

The best practice would be to immediately notify both the startup as well as the temporary agency of your injury and the manner it occurred. One of the two will likely provide contact information for their worker’s compensation insurance to administer your claim. The startup and the temp agency may have contractually determined who will be responsible for providing worker’s compensation benefits between themselves. Either way, you should be covered. 

The last part of your question is whether you could sue the startup company in court. Generally, where someone is entitled to worker’s compensation benefits, those are the “exclusive remedies” available. You cannot sue either employer directly in court since the exclusive remedies are within the worker’s compensation system. However, it is important to look whether a third party (someone other than your employers) contributed to the harm. A third party is not subject to the limitations of the worker’s compensation system. If a separate company was moving a new desk in and they dropped it on your foot, you would likely be entitled to worker’s compensation from your employers and have a right seek recovery from the third- party desk movers in court. Notably, that does not allow a person to seek recovery two times for the same injury. The worker’s compensation provider would have a right to recovery of what they provided (wage loss and medical bills) from any recovery in the third-party court case.

I hope that helps you understand the complexities underlying your straightforward question.  

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What Happens After I Hire an Attorney For My Car Accident?

Written By Christopher Dolan and Allison Stone

This week’s question comes from Anonymous who asks:

What should I expect once I have hired an attorney after an accident? 

Dear Anonymous, 

Thank you for your question. After you are involved in an accident and hiring an attorney, there are still a lot of unknowns and questions. What happens next?  Here is an overview of what to generally expect during this time:

Sign Initial Documents:

The first step in hiring an attorney is signing a retainer agreement along with other paperwork so your attorneys can start working on your case. This paperwork often includes signing various authorizations that allow your attorneys to get the necessary records to prove your case.

Provide Documents and Information:

In addition to signing the retainer agreement and opening documents, you will need to provide your attorney with the information and documents you have. Documents include a copy of your ID, insurance cards (automobile and health insurance), photos, and other evidence relating to the incident. It is also essential to provide the facts about how and when the incident happened, what injuries and losses you suffered, if you have missed work, or if anyone witnessed the incident. You must also provide your attorney with a complete list of all the doctors and healthcare facilities that treated you. This documentation is necessary not just at the beginning of the case but also crucial to keep attorneys updated as you continue to seek medical treatment. Your attorney can then obtain all medical records and bills. 

Attempt to Negotiate a Pre-Litigation Settlement:

Attorneys will often send the insurance company a settlement demand once they obtain documents. This demand will set forth the basis of your case, explain your injuries and damages, and provide photos, medical records, and bills. The insurance company will review the demand, typically make a counteroffer, and a negotiation process will generally follow.   

Filing a Lawsuit: 

If your attorney cannot negotiate a pre-litigation settlement, they will file a complaint, starting the litigation process. Retaining an attorney as soon as you can after an accident is very important. There is a time limit when you can file a lawsuit called a statute of limitations. This statute of limitations varies depending on the type of case. If you miss the statute of limitations, you will not be able to file a lawsuit.  

Once a complaint is filed, your attorney will find and serve the complaint on the defendant, advising them they are being sued. At this point, the defendant will hire an attorney or notify his/her/their insurance company who will represent him/her/them. The insurance company will hire a lawyer if the defendant has not already hired one.

Discovery:

This is typically the longest phase of a case and can take months, a year, or years depending on the circumstances of the case.  During discovery, each side asks the other side for all the information and evidence they have to support their claim and arguments. Your attorney will likely contact you intermittently with specific questions about the accident, your injuries, status updates, etc. During discovery, both sides will also take depositions. As an injured party or a Plaintiff, you will have a deposition, which is a time for you to answer questions by the defense attorney.  Another part of discovery in a personal injury case is a physical examination where the defense can have you examined by their medical expert. Also, during this discovery phase, your attorneys will often have various hearings with the other side and the judge to provide updates and reports as to how the case is progressing.  

Experts:

At any time during the case, your attorneys may hire various experts. Experts are needed to prove different aspects of your case, and the attorneys will hire the necessary experts for your case. Every case is different. You may have to meet with their experts. Or, experts may be involved in part of your case that does not require your involvement.  

Mediation:

Mediation is a process wherein the parties meet with a neutral third person, a mediator, who will help parties reach a settlement.  It is not an adversarial process; typically, each party is in their room or space and never speaks to or sees the other party(s).  Working with an independent person who helps to settle your case is an essential step in virtually every case.  

Trial:

During a trial, both sides have a chance to go to court and present evidence and witnesses that supports their case to a jury. In the end, either a judge or jury come to a verdict. At any time, the matter can settle, which ends the trial. Most personal injury cases settle and do not proceed to trial.  

With all of this said, it is critical to be patient and trust your attorney who is there to guide you through the process and make recommendations along the way. The most important thing is to hire a trustworthy and hardworking attorney to handle your effectively and efficiently.  

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