Personal Injury | Dolan Law Firm

Identifying liability in an officer-involved accident

This week’s column focuses on a recent incident about which we have received a number of inquiries. On Sept. 18, a Redwood City police officer en route to a reported crime scene lost control of his patrol vehicle and struck a pedestrian standing in the median of El Camino Real, as well as two other cars approaching from the opposite direction. The pedestrian was hospitalized with critical injuries. Readers have reached out wondering who bears responsibility when an officer-involved accident results in serious injury.

In general, the California Vehicle Code (CVC) regulations apply to all drivers, whether or not they are acting in a law enforcement or other public capacity. However, an exception provided in CVC Section 21055 applies when an authorized emergency vehicle is either: (1) responding to an emergency call or fire alarm; (2) engaged in rescue operations; or (3) in immediate pursuit of an actual or suspected violator of the law. In any of these situations, emergency vehicle drivers are required to warn the public with red lights visible from the front of their vehicles and, when reasonably necessary, activation of sirens. This exception is designed to ensure emergency vehicles a clear and speedy pathway when the risks to the public from an emergency outweigh the risks to the public from the emergency vehicle’s haste.

Municipalities may also establish “general orders” governing local practices for handling emergency vehicle responses in line with CVC requirements. For instance, Redwood City Police Department’s General Order 316.4 further requires officers to “reduce speed at all street intersections to such a degree that they shall have complete control of the vehicle” and to “elect to respond to the call without the use of red lights and siren at the legal speed limit” where the officer judges that violating traffic laws would present an unreasonable risk given present road and traffic conditions.

When an officer is sued for personal injuries or property damage resulting from a vehicular accident, CVC Section 21055 may be raised as an affirmative defense, meaning an officer may avoid liability if they can prove every element of the exception. Such a legal determination depends heavily on the facts of a particular case. However, the defense will generally not apply if the officer: (1) neither received information to justify an emergency response nor reasonably determined from observation that such a response was necessary; (2) failed to warn the public by illuminating a red light visible from the front of their vehicle and, if reasonably necessary, activating a siren; (3) failed to drive with due regard for public safety given the extraordinary circumstances; or (4) exercised their emergency privileges “arbitrarily,” which courts have interpreted to mean acting either with knowledge that serious injury will probably result or with wanton or reckless disregard of the possible consequences.

In the case of the Sept. 18 crash, it appears that the officer was dispatched pursuant to a legitimate emergency, namely reports of a home invasion. However, the affirmative defense still may not apply if a court finds any of the other three conditions to exist. For example, it is not clear from available video footage whether the officer’s vehicle was operating the minimum required forward facing red light, or siren if conditions are found to warrant one. It is also unclear why the officer lost control of the vehicle and, given such a result, whether he would be found to have been driving with due regard for public safety. The narrative initially offered by the Redwood City Police Department relies on a finding of wet, slippery road conditions. However, as stated above, the Department’s own General Order requires officers to use sound judgment, including taking road conditions into account, when considering their manner of response to an emergency. The Department has turned investigation of the accident over to the California Highway Patrol.

Employers are generally liable for the negligence of employees acting within the “scope and course” of their employment. Therefore, if the officer is found to have acted negligently, the city of Redwood City can be held responsible for any injuries caused and forced to pay for legal damages. However, if a court finds the officer to have acted with knowledge or wanton and reckless disregard that serious injury will probably result, this level of culpability may be found to be outside the “scope and course” of his employment, relieving the city of employer liability.

The city may also be found liable for the legal damages involved in this accident if it is found to have resulted from a vehicle defect and a court finds the Department failed to properly maintain, inspect, or repair the patrol car. If the car is found to have been defective upon purchase, the manufacturer and dealer may also bear responsibility under a products liability theory.

This week’s question comes from Becky M. in SoMa who asks:

Q: “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 schoolbus 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?”

A: 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 schoolbus 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 schoolbus and shall not proceed past the schoolbus 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.

Several Bay Area News agencies have reported that a Redwood City Police Officer hit a pedestrian and two vehicles while responding at high speed to reports of a home invasion crime. According to the reports, the incident took place at approximately 10am on Wednesday, September 18th while the officer was responding from the vicinity of James Avenue and El Camino Real to the 300 block of Poplar Avenue.

Here are two links to related news stories:

Pedestrian Seriously Injured In Redwood City Police Officer Crash

Redwood City Accident: Police officer spins out on wet road striking pedestrian, colliding with 2 other cars

This week’s question comes from Nancy L. in Pacific Heights, who asks:

Q: “I was riding my bicycle down Market Street near 5th Street when the Uber driver in front of me came to an abrupt stop. I started to slow down and veered to the left side to ride past him, when suddenly the passenger flung the back left door open. It all happened so fast. I had no way of avoiding getting hit by the door. I fell off my bike and onto the ground. I remember feeling immediate pain in my right arm, but I managed to take a picture of the Uber driver’s license plate with my cellphone. Soon after the collision, an ambulance arrived and I was transported to the hospital. After taking x-rays, the doctor told me that I had fractured my arm and I would need surgery. The medical bills keep piling up and I had to miss several days of work. I realize that this is not a typical car accident, but is there anything I can do to recover for my medical bills, lost wages, and pain and suffering?

A: Nancy, the short answer is yes, you may seek compensation for both the economic and non-economic damages you suffered as a result of this collision. While this may not seem like a typical car accident, it has become increasingly common for cyclists to get “doored” by Uber and Lyft passengers.

It is great to hear that you took down the driver’s license plate. After a car accident, it is very important to obtain the other driver’s information which includes their full name, license plate, and car insurance information. It is also important to obtain a copy of the police report and to take pictures of your injuries and the property damage.

Under California Vehicle Code (CVC) section 22517, “No person shall open the door of a vehicle on the side available to moving traffic unless it is reasonably safe to do so and can be done without interfering with the movement of such traffic, nor shall any person leave a door open on the side of a vehicle available to moving traffic for a period of time longer than necessary to load or unload passengers.” Based on CVC section 22517, drivers and passengers have a responsibility to inspect their surroundings before opening the door to determine whether it is safe to do so. In your case, the Uber driver should have found a safe location to stop rather than abruptly stopping in the middle of a busy street. Furthermore, the Uber driver should have also warned his passenger to be careful when opening the door. While some of the liability may be placed on the passenger, the main focus in these cases is on Uber/Lyft and the driver because they bear responsibility for the decision to drop-off a passenger on a street with heavy traffic. We have also handled many cases where the Uber or Lyft driver decides to park in the bike lane forcing cyclists to go around the car, which increases the risk of getting doored or struck by oncoming traffic.

If you were injured in a car accident as a result of a driver or passenger “dooring” you, you have the right to seek compensation for your economic and non-economic damages. Economic damages include compensation for discrete items such as property damage, medical bills and lost wages; non-economic damages include things that are more difficult to quantify, 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.

For everyone’s reference, the San Francisco Bicycle Coalition highly encourages drivers and passengers to use the “Dutch Reach” for opening doors: this entails using the hand farthest from the door, so that the body automatically swivels, positioning the head and shoulders towards the window, and thereby allowing them to see any oncoming bikes and cars prior to opening the door. This is an easy technique that can avoid injuries to cyclists. By taking these steps, you can help curb this unfortunate new trend.

This week’s question comes from Karen in the East Bay, who writes:

Q: “Chris, I need your advice. I took my car to a neighborhood car wash. While I was going through the wash, the car behind me accelerated and rear-ended my car. At the time, I was reaching for papers in the glove compartment. The force from the collision, while not great, was enough to shove my head into the dashboard. I ended up with a nasty gash above my eye that required stitches and may leave a permanent scar. I also suffered a neck injury, which hopefully will heal through physical therapy. I don’t know how the driver of the car behind me hit me. It might not matter. He doesn’t have car insurance. The car wash owner claims he has no responsibility because there was nothing wrong with the car wash’s machinery. My friends joke that I got into a collision inside a car wash. I am not laughing. Incredibly, I am already looking at more than $10,000 in hospital and medical bills. What should I do?”

A: Karen, I am sorry to learn of your injuries and how others have reacted. Often, an accident that can appear to some as only having caused a minor injury can actually have resulted in a significant injury.

At the outset, is there a police report? If not, go to the station nearest the car wash and have them fill one out. Insurance company that handle auto-related claims will want to see a police report.

You should reach out to the car wash’s liability insurance company. The manager should be able to give you that contact information. Since the incident occurred on their property, they most likely have medical payments coverage, which helps defray medical bills, regardless of who is at fault, for injuries suffered on the premises. There is no deductible for this coverage. Call now to get this benefit so your credit doesn’t get hurt for unpaid medical bills.

Hopefully you had auto insurance on your vehicle. Auto insurance falls into five basic categories: liability coverage, comprehensive coverage, collision coverage, uninsured/underinsured motorist coverage and medical payments coverage.

Liability insurance covers a driver who causes an accident. Comprehensive insurance covers damage or loss due to a non-accident, such as theft, falling trees and cracked windshields. Neither liability nor comprehensive coverage applies in your situation. However, the other three types of auto insurance, to the extent that your purchased them, are relevant.

Collision insurance repairs or replaces your car if it is damaged in an accident regardless of who is at fault. Your collision policy should cover the damage to your car, minus your deductible. If you get hit by an at-fault driver who has no insurance or inadequate insurance, uninsured/underinsured motorist coverage may pick up the difference to the level of your coverage. Uninsured/underinsured coverage will compensate you for past and future medical expenses, lost wages and your physical and emotional pain and suffering.

If your auto policy includes medical payments insurance, your auto carrier may help pay off some of your outstanding bills. Make sure that you confirm the limits and procedures for receiving reimbursement from your carrier.

Karen, I also suggest you consult with an experienced trial attorney to review your case. The damages you suffered may exceed the various vehicle policies particularly if you need plastic surgery to remove the scar above your eye or your neck requires injections or surgery. The culpability, if any, of the business needs to be evaluated.

Under California Civil Code, Section 1714, “Everyone is responsible, not only for the result of his or her willful acts, but also for any injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person …”

All businesses owe a duty to protect their customers from unreasonable risk of harm or injury. It’s imperative that car washes inform customers — through either clear, visible signage or an attendant — when to enter, stop and place their vehicle into either neutral or park. Believe it or not, we have handled several serious car wash injury cases involving injury to the attendant as well as those involving harm to the drivers. In the wrong combination, cars, water, soap and machinery can be deadly.

A skilled trial lawyer should put the car wash on notice that an investigation is underway and request that all video and photos taken on the date of your injury be preserved. They should also inspect the car wash and develop a clear understanding of how the collision occurred.

This doesn’t require a law degree, just the cost of a car wash. An iPhone or GoPro can record the signage and sequencing. Often, car washes video record their operations. Your attorney should evaluate whether clear warning signs were displayed at drivers’ eye level at the entrance to the car wash. Were the instructions only in English? As we live in a multi-lingual society, the issue of language should be evaluated along with whether there was an attendant stationed near the entrance of the car wash to confirm the driver saw and understood the instructions and put the car in neutral.

We have seen situations where, in a fully automated system, the light said enter before the car in front had cleared the wash. We have also seen situations where the car wash attendant, being distracted, kept waiving a car to keep proceeding forward as the car hit the one in front of it. Likewise, we have seen situations where people feel the bump of the roller and, having left the car in drive, hit the gas (thinking they were breaking) slamming into the car in front of them.

Karen, I hope that you heal quickly. In the meantime, follow the instructions above to best protect and preserve your rights.

This week’s question comes from Mayra B. in the Presidio, who asks:

Q: “I was recently rear-ended by a vehicle while I was stopped at a red traffic light. My car was wrecked and my leg was injured. I thought this would be an easy process as I didn’t do anything wrong. However, when I called my insurance company, they said my policy had lapsed. I was surprised to hear this because I always pay my car insurance on time; however I had recently moved to a new place and had not realized that I had forgotten to pay my insurance premium. After speaking to a lawyer, I found out that I could sue the other driver to get my car repaired, my hospital bills paid, and my time off work paid, but I cannot obtain compensation for my pain and suffering. How is this possible? It was not my fault.”

A: Mayra, thank you for your question. Unfortunately, the information your lawyer gave you is correct. In 1996, California voters passed the Personal Responsibility Act, known as Proposition 213, codified in the California Civil Code Sections 3333.3 & 3333.4. Prop 213 bars uninsured drivers from recovering for non-economic damages if they were not insured at the time of the collision.

California Civil Code Section 3333.4 states: “in any action to recover damages arising out of the operation or use of a motor vehicle, no person shall recover non-economic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary damages if . . . [t]he injured person was the owner of a vehicle involved in the accident and the vehicle was not insured as required by the financial responsibility laws of this state.” You may be wondering, “How could this be?”, especially for someone like yourself who only experienced a momentary lapse in insurance coverage. The answer is that Proposition 213 was framed as a law intended to punish drunk drivers and fleeing felons from obtaining compensation for pain and suffering. However, many voters did not realize that the proposition also sandwiched uninsured drivers between the drunk drivers and fleeing felons.

As a result of Prop 213, California law now restricts damages for injured car owners and drivers in three situations: 1) where the driver themselves is convicted of DUI; 2) where the driver owns the vehicle and does not have the state minimum liability insurance at the time of the accident; and 3) when injury is sustained while committing a crime or fleeing from a crime which they are later convicted of as a felony.

Under Prop 213, an uninsured driver can still obtain compensation for special damages. Special damages are items that are quantifiable such as property damage, medical bills, and loss of earnings. However, the law restricts the uninsured driver from obtaining compensation for non-economic damages such as pain and suffering, physical impairment, disfigurement, inconvenience, and emotional distress.

There are some exceptions to the restrictions Prop 213 imposed. For example, a car owner or driver who does not have insurance coverage may recover for their non-economic damages if he/she was operating their employer’s uninsured vehicle, since the responsibility to insure the vehicle falls on the employer, not the employee driver. Another exception allows noneconomic damages when the accident occurs on private property, because state law only requires drivers to have auto liability insurance to drive on public roadways, not on private property. Prop 213 restrictions will also not apply if a driver borrows a vehicle that does not have insurance coverage, but the driver did have insurance coverage on another car. Lastly, Prop 213 does not apply to a passenger who was injured while riding in an uninsured vehicle. Unfortunately, there is no exception for drivers who were uninsured due to an unintentional lapse in insurance, no matter how brief.

Due to the complexity of this law, it is important you contact a qualified trial lawyer to review the situation to see if one of the other exceptions applies to you.

If you were injured in an accident as a result of someone’s negligence, you still have the right to seek compensation for your economic damages such as your property damage, medical bills and lost wages, even if Prop 213 applies to your case. However the best practice is to make sure that you have insurance on your vehicle. Having vehicle insurance will protect you in the event that you harm someone else in a vehicle accident, but it will also allow you to be fully compensated if you are injured by another driver.

This week’s question comes from Danny T., who asks:

Q: “I work in construction and a lot of times I work outside in the heat and cold. Other times, when I am in the shack doing paperwork, they keep it way too hot, like 80 degrees. Are there rules about this that I should know — like, can they make me work in the rain, or send me home with no pay if it is too wet to work?”

A: Thanks for your question, Danny. It is important to know your rights in the workplace. You didn’t mention whether you were a member of a union but, if you are, the first place to look for answers would be your Collective Bargaining Agreement. If that doesn’t specify relevant terms, or if you are not a union member, then regulations administered by the California Occupational Safety and Health Administration (Cal/OSHA) and federal Occupational Safety and Health Administration would govern your situation.

I will address two issues you raise here: (1) Rules for working outside during weather events; and (2) Temperature requirements in indoor areas.

Working outside, as you know, creates a number of issues related to a worker’s health, safety and comfort, especially when workers are exposed to heat, cold, rain or snow. Heat illness can be deadly. In 2005, California became the first state to adopt a heat illness prevention standard to protect outdoor workers. Under California Code of Regulations, Title 8, Section 3395, employers are required to provide employees who work outdoors with free and reasonably cool water, a place of shade, cool-down rest breaks, and training on how to recognize and prevent heat illness. When the heat is more extreme, over 95 degrees, employers must implement special High-Heat procedures to monitor workers.

Cold weather can also present serious dangers to outside workers. Cal/OSHA recognizes and warns of the dangers cold-stress presents, particularly hypothermia, frostbite and trench-foot. However, unlike heat, there are no specific standards or requirements employers must follow at either the state or federal level. However, under the General Duty Clause, Section 5(a)(1) of the federal Occupational Safety and Health Act, employers are required to provide their employees with a place of employment that “is free from recognizable hazards that are causing or likely to cause death or serious harm to employees.” California also has a catch-all standard, California Code of Regulations, Title 8, Section 3203, that requires most employers to establish and implement an effective Injury and Illness Prevention Program (“IIPP”).

These general standards are also applicable to rain and snow. An employer can require that people work outside in the rain, but if the weather conditions make the outdoor worksite too dangerous, the employer has a responsibility to cease the work. If the cancellation occurs part way through the work day, you may be entitled to “reporting time pay,” or compensation for 50 percent of the time you had been scheduled to work. This requirement is subject to exceptions for utility failures and “acts of God,” such as earthquakes. Unfortunately, if work is cancelled prior to the start of the work day, there is no obligation to pay affected workers.

There is also no current mandated standard for indoor workplace temperature at either the state or federal level. The United States Department of Labor does, however, make a recommendation in its technical manual: employers should maintain indoor temperature in the range of 68-76° F, with humidity in the range of 20 percent — 60 percent. The Cal/OSHA appeals board has also upheld citations against warehouse operators whose prevention program failed to address indoor temperature regulation, leading to employee injury. (National Distribution Center, Cal/OSHA App. 12-R6D2-0391, 12-R6D2-0378, Decision After Reconsideration (Oct. 5, 2015)).

The concern over the lack of specific rules for indoor workers is increasing. In 2016, then Gov. Brown signed a bill directing Cal/OSHA to draft and propose standards for indoor worksites “that minimizes heat-related illness and injury among workers working in indoor places of employment.” A draft standard was circulated to Advisory Committees in October of last year that proposed requiring employers, when indoor workplaces rise above 82 degrees, to provide cool-down places, make policies requiring or providing appropriate clothing, and implement training and a heat-illness plan. However, this standard has not yet been enacted.

If you are ever asked to work in an environment that is unsafe, it is a good idea to document your opposition in writing to your employer and Cal/OSHA. The law protects workers who oppose unsafe working conditions: California Labor Code 6310 makes it unlawful for an employer to retaliate against a worker who makes this type of complaint. If you do suffer retaliation for opposing an unsafe work environment, immediately reach out to a quality employment lawyer, such as those at Dolan Law Firm, PC.

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.

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