Football Players Are Not the Only Ones That Can Get Hurt

Written By Chris Dolan and Megan Irish

This week’s question comes from a Football fan Trace from Marin County, CA, who asks: My husband and I are ready to watch football. During this season we spend time with family and friends rooting for our NFL teams, our grandkids flag teams and our local high school football team.  Yes, we like football. We’ve got tickets for a game at Levi Stadium ( Seahawks v. 49ers ) and cannot wait for November. We are really looking forward to the game at Levi! With all the excitement in the stands and crowds, what happens if one of us gets hurt at a game? I know I get excited, but I have seen people really get into it and maybe over do it. 

Dear Trace,

It’s that time of year again when we all break out the chips and dip and coolers with all the great snacks, don the jerseys of our favorite players, and tune in for some football. It’s great that you two will go out to support your grandkids with their sports teams! Be sure to put on those school colors. Whether watching live at a stadium after a tailgate lunch, at a sports bar, or from your friend’s couch, it’s a time to cheer for your team! Regardless of where you guys are watching, fans can suffer personal injuries at a game. So, if one of you gets hurt, consider the following:

  • Were you watching the game at a stadium?  If so, who owns the stadium and surrounding land? Sometimes, a governmental entity owns, manages, or controls the local stadium.  If so, you may have a short statute of limitations to bring a claim since it is only six months. 
  • Also, if your stadium or field belonged to the government, did the injury occur because of a dangerous condition on the public property, or did some third party’s actions cause the injury?

To succeed against the government in a personal injury claim from a game time event, you must show a dangerous condition on public property. To prove a dangerous condition, you must show that: 

  • The governmental entity owned and/or controlled the property, 
  • That the property was dangerous at the time of the injury, 
  • That the dangerous condition created a foreseeable risk of the kind of injury that occurred,
  • Either an employee’s conduct created the condition, or the entity knew or should have known about the dangerous conditions and had the opportunity to correct them but failed to do so. You were harmed, and the condition was a substantial factor in causing your harm.  

If you witness an injury, snap some photos of the area where it occurred, as it may be important evidence of the condition of the area. If you are the injured party, ask a friend, family member, or witness to take photographs and share them with you.   

If you were at a sports bar or a friend’s house, you likely have a longer statute of limitations of two years, but you will still need to submit a claim with the proper insurance company promptly. To bring a claim against a sports bar and/or a friend’s homeowners’ policy, it is called a premises liability claim and would require you to show that: 

  • The defendant owned, leased, occupied, or controlled the property, 
  • That the defendant was negligent in the use of the property or its maintenance, 
  • That you were harmed and 
  • That the defendant’s negligence was a substantial factor in causing your harm.  

Regardless, if you or someone you know is injured at a game, seek the appropriate medical care to get better.  

Another concern with the return of football is the increase of people who will drink and drive. According to the statistics the California Department of Motor Vehicles kept, there are over 1,000 DUI-involved fatalities each year in California. There are over 100,000 arrests each year for driving under the influence. With football games being a natural and regular place to partake in alcohol, have a designated driver or alternative way to get home instead of drinking and driving.  

Nonetheless, sharing the fall season with family and friends and a camaraderie for the game is great. Chips, dips, chicken wings, and sweets, and whether you put on red, gold, silver, black, or local high school colors, be safe, cheer loudly, and enjoy the game. 

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Who Is Responsible for Railroad Tracks In the City?

Written By: Chris Dolan and Megan Irish

This week’s question comes from Renee from Atlanta, Georgia writes: After living in San Francisco for a few years and appreciating the city’s charm, I went on a bike ride with my husband. We were meandering, exploring the area by bike after having a lovely picnic. While we were riding, I looked at a butcher shop on the road beside me, and when I got to the corner, I noted the street signs so I could come back later and shop. Unfortunately, this simple distraction meant I rode a few inches outside of the bike lane, and when I did, my bike tire slipped into an abandoned railroad track in the roadway. I attempted to steer out, only to find myself and my bike toppling over. I stretched out my arm to break my fall, which was a terrible idea. Instead of breaking my fall, I broke my humerus head in three places. After searching for the right surgeon, they repaired my injury with a plate and nine screws. It took me a year of intense physical therapy to regain about ninety percent of my mobility. Lesson learned. Do not steer out of the tracks but instead stop. Is there anything we can do to make the roads safer for cyclists? How can we improve awareness for cyclists about how dangerous the tracks are for them? The groove is just the size to trap a bicycle tire and cause others to fall, just like I did. I wish there were something I could do, now that I have moved back to Georgia, to help keep San Franciscans safe while they enjoy the city on a bicycle. I want to spread my message to “Just Stop” so that folks can carefully stop riding and then remove their bicycle tire from the track groove and go on their way safely, thereby avoiding the dangers of the tracks on the roadway.

Dear Renee, 

Thank you for your note, and you are entirely correct; railroad tracks can be dangerous to bicycle riders. However, these are challenging cases to prevail on. If the tracks belong to the city, the city may have immunity from liability. According to the Government Code, section 830.6,

“Neither a public entity nor a public employee is liable … for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval ….” 

This protection for the city is called ‘design immunity.’ It means if the city properly approves the placement of the tracks, even if they are dangerous, an injured person may be unable to recover from the governmental entity. When tracks are in the roadway, the city or other entity would argue that anyone can see them as an open and obvious hazard. Unfortunately, just as in your case, looking about for directions, street names, or watching for other vehicle hazards means you are not always looking down for the small groove and may get your tires caught up in them. However, depending on the circumstances, an injured party may be able to argue that the dangerous condition constituted a trap under Government Code section 830.8 which states:

Neither a public entity nor a public employee is liable under this chapter for an injury caused by the failure to provide traffic or warning signals, signs, markings or devices described in the Vehicle Code. Nothing in this section exonerates a public entity or public employee from liability for injury proximately caused by such failure if a signal, sign, marking, or device (other than one described in Section 830.4) was necessary to warn of a dangerous condition that endangered the safe movement of traffic and which would not be reasonably apparent to, and would not have been anticipated by, a person exercising due care. 

Generally, suppose a person using the roadway, with due care, would not have appreciated the dangerous condition. In that case, they may be able to argue that the condition constituted a trap and hold the entity liable for the dangerous condition. If the tracks are owned by a private railroad, the individual company may be responsible for the injury. Thank you for being so interested in keeping all riders safe and aware of the dangers the tracks may present for cyclists.  

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Megan Irish is an associate attorney in our Oakland, CA, office. We serve clients throughout the San Francisco Bay Area and California from our offices in San Francisco, Oakland, and Los Angeles. Email questions and topics for future articles to: help@dolanlawfirm.com. Each situation is different, and this column does not constitute legal advice. We recommend consulting with an experienced trial attorney to understand your rights fully.
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Slip and Fall Injuries Can Be Serious and Complex

Written By Chris Dolan and Cristina Garcia

This week’s question comes from Rosa L. in the Mission District, who asks: Last weekend I was grocery shopping when suddenly I felt my left leg slip from under me. The next thing I knew, I was on the ground. Almost immediately, I felt a sharp, throbbing pain in my leg. I attempted to stand up but realized something was seriously wrong with my leg. I’m not sure who called the ambulance, but eventually, the paramedics placed me on a gurney and transported me to the hospital. At the hospital, I underwent X-rays and was informed that I had broken my leg and would require surgery. Thankfully, while waiting for the paramedics, one of the shoppers introduced herself and gave me her phone number. Later, she sent me photos of the spilled liquid and the aisle where I fell. I know that after a car accident, typically, the people involved exchange phone numbers, and there is a police report. However, I have never slipped and fell at a store before and do not know what to do next.  

Dear Rosa, 

I am sorry that you are dealing with this situation. After a slip and fall, some steps are important to take if you seek compensation for your injury:

  1. First, call the store and ask an employee to create an incident report. Also, provide them with the facts of the incident and specify the location in the store where you fell. Understandably, you may not be able to go into the store to submit an incident report due to your injury.
  2. Second, it is essential to preserve as much evidence as possible. Most grocery stores have video surveillance throughout the store. You should call the store manager and ask that they preserve all surveillance video from the incident date, as many places delete their surveillance video or record over old videos after a few days.

Slip and fall cases are complex and can be challenging when the injured person does not have evidence of a slippery substance on the ground or cannot identify the substance that caused them to slip and fall. It is great that one of the shoppers who witnessed the incident took photos of the liquid on the floor. The photos will assist you in proving that there were no warning signs alerting shoppers that the floor was wet.  

Once you file a personal injury claim, the defendant will likely ask for an opportunity to inspect your shoes and clothing from the date of the incident. The reason for doing this is that the grocery store will likely try to argue that your shoe caused your slip-and-fall. For example, the grocery store may contend that the sole of your shoe was worn down. Therefore, you most likely slipped due to the lack of traction in your shoes. Although your instinct may be to get rid of the shoes or clothes you were wearing on the date of the incident, it is important that you keep those items. 

 

Another step that you can take to preserve evidence is taking photographs of your injuries. This may be difficult to do yourself while you are at the hospital. However, you can ask friends and family to photograph your leg’s bruising and swelling. Once you are discharged, you will also want to keep a copy of your discharge papers, as they will briefly describe your injuries. During your recovery period, you should also keep a copy of receipts for the expenses you have incurred due to the incident. Those expenses can include medication and other medical devices such as crutches. 

Slip and fall cases are complex cases. Therefore, we recommend that you retain an experienced attorney to assist you in navigating the process and obtaining the compensation you deserve. 

 

For more information on Dolan Law Firm, you can go to dolanlawfirm.com.

 

To read more articles on our blog, visit us at dolanlawfirm.com/blog.

 

Christopher B. Dolan is the owner of the Dolan Law Firm. Cristina Garcia is a senior associate attorney in our Redondo Beach office. We serve clients throughout the San Francisco Bay Area andCalifornia from our offices in San Francisco, Oakland, and Los Angeles. Email questions and topics for future articles to: help@dolanlawfirm.com. Each situation is different, and this

column does not constitute legal advice. We recommend consulting with an experienced trial attorney to understand your rights fully.

 

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Swimming Pool Safety Act: Making Pools Safe for Children

Written By: Chris 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 non-portable hot tubs and spas, and non-portable 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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Are You Assuming All The Risks In a Serious Ski Accident?

Written By Chris Dolan and Jeremy Jessup

This week’s question comes from Jayson from Redwood City, CA who asks: With all the heavy rain and snow we have experienced in California, the ski resorts will be open into the summer months and potentially see a record number of attendees. Given that so many people will converge on these resorts, especially after school lets out, what duties do they have to ensure that everyone is safe from a serious ski accident?

Dear Jayson,

This is an excellent question. Ski resorts in California are a popular destination for winter sports enthusiasts. With the increasing popularity of skiing and snowboarding, the legal liabilities of ski resorts in California have become a significant concern for resort operators and visitors alike. However, there are a few ways that a ski resort can avoid liabilities in California due to skiing accidents. 

Negligence

The most basic claim against ski resorts is an injury caused by their negligence.  Negligence is the most common legal theory under which ski resorts may be held liable for injuries sustained by skiers. Negligence occurs when a ski resort fails to exercise reasonable care, resulting in injury or harm to a skier. In California, ski resorts owe a duty of care to skiers who use their facilities. This duty requires ski resorts to maintain their premises in a reasonably safe, inspect it for hazards, warn skiers of potential risks, and take reasonable steps to prevent accidents. If a ski resort breaches this duty of care and a skier injures themself due to their negligence, the resort may be held liable for damages.

A liability waiver is a legal document that releases the ski resort from liability for injuries sustained by skiers. However, to avoid liability under a negligence claim, most ski resorts have you waive your rights to assert a claim for their negligence. This waiver process usually occurs when you purchase your lift ticket.  In California, liability waivers are generally enforceable, provided they are clear, conspicuous, and specific. Liability waivers are not absolute protections for ski resorts. If a skier injures themself due to the ski resort’s gross negligence, a liability waiver may not be enforceable, and the resort may still be held liable for damages.

Gross Negligence

Gross negligence is a legal concept that applies in California and other states to hold individuals or organizations liable for their extreme or reckless conduct that leads to harm or injury to others. Under California law, gross negligence is a higher degree of negligence than ordinary negligence, a failure to exercise reasonable care. Under California law, gross negligence is “the want of even scant care or an extreme departure from the ordinary standard of conduct.” This means that a ski resort’s conduct must be significantly more egregious than mere negligence to be considered gross negligence. A finding of gross negligence can have significant legal consequences. For example, if a ski resort is found to have acted with gross negligence in maintaining its facilities, it may be subject to the unenforceability of its liability waiver.

It is important to note that the standard for proving gross negligence is high, and not all reckless or dangerous conduct will rise to the level of gross negligence. 

Assumption of the Risk

California courts have long held that skiing is an inherently dangerous activity. By purchasing a lift ticket and skiing at a resort, a rider impliedly and expressly assumes the risks of the sport. Assumption of risk is another legal theory that limits ski resort liability. In California, riders assume the inherent risks of skiing and snowboarding, such as falling, colliding with other skiers, and encountering natural hazards like rocks and trees. However, ski resorts can still be liable for all injuries sustained by skiers. If a skier is injured due to a hazard that is not inherent to the sport of skiing or due to the ski resort’s gross negligence, the resort may be held liable despite the skier’s assumption of risk.

Assumption of the risk by the skier or rider does not absolve the ski resort from liability; ski resorts may be held liable where they create or increase the risk of unsafe, atypical conditions (i.e., gross negligence). In addition, ski resorts in California must also comply with state and federal laws governing the operation of ski resorts. For example, ski resorts must maintain safe skiing conditions, post warning signs, and develop and implement safety plans. Additionally, ski resorts must comply with the Americans with Disabilities Act (ADA), which requires that ski resorts make reasonable accommodations for individuals with disabilities.

In addition to the legal liabilities discussed above, ski resorts in California may also face liability for accidents involving ski lifts and other equipment. Resorts must inspect and maintain ski lifts to ensure their safety. They may be held liable for injuries sustained by skiers due to a malfunctioning or poorly maintained ski lift. Ski resorts must also ensure that the equipment they rent, such as skis and snowboards, are safe for use by skiers.

To limit their legal liability, ski resorts in California should take steps to ensure they maintain their facilities in reasonably safe condition. They should train their employees to operate ski lifts and other equipment properly and adequately inspect and maintain them. Also, take steps such as identifying and addressing hazards, posting warning signs, and developing and implementing safety plans.

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Are You Assuming All The Risks In a Serious Ski Accident?

Written By Chris Dolan and Jeremy Jessup

This week’s question comes from Jayson from Redwood City, CA who asks: With all the heavy rain and snow we have experienced in California, the ski resorts will be open into the summer months and potentially see a record number of attendees. Given that so many people will converge on these resorts, especially after school lets out, what duties do they have to ensure that everyone is safe from a serious ski accident?

Dear Jayson,

This is an excellent question. Ski resorts in California are a popular destination for winter sports enthusiasts. With the increasing popularity of skiing and snowboarding, the legal liabilities of ski resorts in California have become a significant concern for resort operators and visitors alike. However, there are a few ways that a ski resort can avoid liabilities in California due to skiing accidents. 

Negligence

The most basic claim against ski resorts is an injury caused by their negligence. Negligence is the most common legal theory under which ski resorts may be held liable for injuries sustained by skiers. Negligence occurs when a ski resort fails to exercise reasonable care, resulting in injury or harm to a skier. In California, ski resorts owe a duty of care to skiers who use their facilities. This duty requires ski resorts to maintain their premises in a reasonably safe, inspect it for hazards, warn skiers of potential risks, and take reasonable steps to prevent accidents. If a ski resort breaches this duty of care and a skier injures themself due to their negligence, the resort may be held liable for damages.

A liability waiver is a legal document that releases the ski resort from liability for injuries sustained by skiers. However, to avoid liability under a negligence claim, most ski resorts have you waive your rights to assert a claim for their negligence. This waiver process usually occurs when you purchase your lift ticket.  In California, liability waivers are generally enforceable, provided they are clear, conspicuous, and specific. Liability waivers are not absolute protections for ski resorts. If a skier injures themself due to the ski resort’s gross negligence, a liability waiver may not be enforceable, and the resort may still be held liable for damages.

Gross Negligence

Gross negligence is a legal concept that applies in California and other states to hold individuals or organizations liable for their extreme or reckless conduct that leads to harm or injury to others. Under California law, gross negligence is a higher degree of negligence than ordinary negligence, a failure to exercise reasonable care. Under California law, gross negligence is “the want of even scant care or an extreme departure from the ordinary standard of conduct.” This means that a ski resort’s conduct must be significantly more egregious than mere negligence to be considered gross negligence. A finding of gross negligence can have significant legal consequences. For example, if a ski resort is found to have acted with gross negligence in maintaining its facilities, it may be subject to the unenforceability of its liability waiver.

It is important to note that the standard for proving gross negligence is high, and not all reckless or dangerous conduct will rise to the level of gross negligence. 

Assumption of the Risk

California courts have long held that skiing is an inherently dangerous activity. By purchasing a lift ticket and skiing at a resort, a rider impliedly and expressly assumes the risks of the sport. Assumption of risk is another legal theory that limits ski resort liability. In California, riders assume the inherent risks of skiing and snowboarding, such as falling, colliding with other skiers, and encountering natural hazards like rocks and trees. However, ski resorts can still be liable for all injuries sustained by skiers. If a skier is injured due to a hazard that is not inherent to the sport of skiing or due to the ski resort’s gross negligence, the resort may be held liable despite the skier’s assumption of risk.

Assumption of the risk by the skier or rider does not absolve the ski resort from liability; ski resorts may be held liable where they create or increase the risk of unsafe, atypical conditions (i.e., gross negligence). In addition, ski resorts in California must also comply with state and federal laws governing the operation of ski resorts. For example, ski resorts must maintain safe skiing conditions, post warning signs, and develop and implement safety plans. Additionally, ski resorts must comply with the Americans with Disabilities Act (ADA), which requires that ski resorts make reasonable accommodations for individuals with disabilities.

In addition to the legal liabilities discussed above, ski resorts in California may also face liability for accidents involving ski lifts and other equipment. Resorts must inspect and maintain ski lifts to ensure their safety. They may be held liable for injuries sustained by skiers due to a malfunctioning or poorly maintained ski lift. Ski resorts must also ensure that the equipment they rent, such as skis and snowboards, are safe for use by skiers.

To limit their legal liability, ski resorts in California should take steps to ensure they maintain their facilities in reasonably safe condition. They should train their employees to operate ski lifts and other equipment properly and adequately inspect and maintain them. Also, take steps such as identifying and addressing hazards, posting warning signs, and developing and implementing safety plans. 

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Cars Crash into Convenient Stores, Too Often.

Written By Chris Dolan and Megan Irish

This week’s question comes from Rebeca from San Jose, who asks: Two weeks ago, I heard a loud commotion and went outside to see that a car had crashed into the corner convenience store. It went right into the glass front of the building, and only the trunk is visible from the sidewalk.  Today it is all boarded up, and the store is closed. Has this ever happened before?

Dear Rebecca,

Unfortunately, yes, these kinds of crashes happen far more frequently than you can ever imagine, often causing injuries in addition to the apparent damage to the building. Who is responsible for these damages? The driver of the car? Surely. But is the store also responsible?  Often, yes. When someone is hurt in a store front crash, they may be able to bring a claim for their injuries based on negligence and premise liability against the store.

Generally, in a negligence case, the injured plaintiff must prove the defendant has a duty, the defendant breached their duty, the breach caused the plaintiff an injury, and the plaintiff has suffered damages related to that injury. Generally, in a premise liability action, the plaintiff must show that a defendant owned, leased, or controlled the location of their injury, that the defendant was negligent in the use or maintenance of the property, that the plaintiff was harmed, and that the defendant’s negligence was a substantial factor in causing the plaintiff’s harm.  

From the local coffee shop to the neighborhood grocery store and everything in between, cars can drive into the store and injure pedestrians, store patrons, and employees. Often the layout of the parking spaces outside the store leads to the vehicles’ intrusion into the building. When the parking spaces are placed directly in front of the store, which is perpendicular to the store, and the driver makes an error by pressing the gas instead of the brake pedal instead of coming to stop, the vehicle accelerates toward the building. A crash is imminent If the parking lot and storefront design do not have any barriers to stop the vehicle’s entrance onto the sidewalk and into the store. The crash can be minor and cause only property damage to the building, like a few broken windows, or it can be catastrophic and cause injury or even death to the pedestrians on the walkway, the patrons, or the employees inside the store.  

This kind of “storefront crash” is a known risk to stores, and there are numerous ways to protect the storefront and keep patrons and pedestrians safe. For example, owners can install bollards to prevent a car from intruding into the space. A bollard is a slim, solid pillar that is seated into the ground. They are often about four to six inches in diameter and come up to about three or four feet. They are usually yellow to increase their visibility. They do not impede the flow of foot traffic and can easily be ADA-compliant. Also, placing attractive flower boxes with appropriate underpinnings across the front of a store can offer protection without impeding on a patron’s access to the store. Either of these or one of the numerous other options would protect the sidewalk area and storefront from any vehicle trying to park in the perpendicular stall that inadvertently jumps the curb and approaches the storefront.  

The frequency of these types of collisions is staggering. Recently made public statistics demonstrate that the popular convenience store 7-Eleven has 1.14 store front car crashes a day, causing some personal injury or property damage. The now public data also shows repeated hits at the same stores. Some were hit three, four or five times. There is even evidence that one store was hit thirteen times! The recently released data also shows that between 2003 and 2017, there were 6,253 storefront crashes at 7-Eleven stores across the country in fifteen years.  More public data about 7-Eleven shows another 1581 storefront crashes between 1991 and 1996.  

These types of crashes happen. It’s a known hazard of stores with parking stalls perpendicular in the front of the store. And the store is oftentimes in the best position to prevent the injuries and damages associated with them. Hopefully, your local store will be repaired quickly, and no one inside was hurt.

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Who is Liable When Potholes Cause Accidents?

Written By Chris Dolan and Cristina Garcia

This week’s question comes from Kathy J. in the Sunset District, who asks: After this year’s stormy winter, new potholes seem to be appearing daily. Over the weekend, I was driving to my friend’s house when I hit a pothole in the road. The pothole caused me to lose control of my vehicle, and I eventually crashed into a tree. The impact destroyed the front of my car and deployed my airbags. I vaguely recall the police officer and ambulance arriving. At the hospital, I was diagnosed with facial bruising, a concussion, and a broken wrist. I am unsure what my next steps are, as the accident did not involve another vehicle, and I was not at fault for crashing into the tree. However, I now have large medical bills, and my car has significant property damage. Who is responsible if a pothole leads to an injury?    

Dear Kathy,

That is a great question. Potholes are more prevalent after heavy rains as the precipitation saturates the ground and causes the asphalt to break up. Government entities such as cities, counties, the State, or the Federal government own public roadways.  Therefore, the first step is determining which entity owns the road. A government entity, like any other property owner, is responsible for maintaining its premises in a reasonably safe condition. It is important to note that “reasonably” does not mean in perfect condition or that maintenance needs to occur instantaneously. However, showing that the responsible government entity had notice of the pothole is essential in establishing liability. 

Many cities and counties have online portals or phone numbers where residents can report dangerous roadway conditions such as potholes. For example, in San Francisco, the SF311 Mobile App can be used to submit service requests. For this reason, it is important for anyone who comes across a pothole, whether you are a driver or a pedestrian, to file a service request notifying the government entity of the roadway condition.

California Government Code §§ 830 et seq. lays out the rules for liability stemming from any “dangerous condition of public property,” defined as a condition that creates a substantial risk of injury when such property is used with due care in a reasonably foreseeable manner. Cal. Gov. Code § 830.2. Special rules apply when filing a claim against a government entity. The injured individual must file an administrative claim before filing a personal injury lawsuit against a government entity. It is important to note that there is a limited time in which you can bring an administrative claim against a government entity. Under California Government Code Section 910, you must file a claim against the government entity within six (6) months after the event or occurrence. Be sure to file the claim with the appropriate government office or agency. Further, it is equally important that you use the claim form of that government agency when filing a claim, as section 910 prescribes a list of the required information you must provide in your claim. Otherwise, the claim may be deemed invalid.   

While the government entity can be held responsible for dangerous conditions on its roadways, it is critical to note that a non-trivial dangerous condition does not mean the city is liable for damages. Further, when a claimant can prove the statutory requirements, the government entity may still raise several defenses to defeat liability. It may argue that it exercised due care by posting warning signs to prevent vehicles from hitting potholes or claiming that it is “open and obvious”; therefore, no warning signs were necessary. 

Claims against any government agency present their unique challenges. There are strict time limits and different procedural rules that apply to government claims. For this reason, it is important to retain a skilled trial attorney to assist you in pursuing your government claim and ensure you obtain the compensation that you deserve. 

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Is a Trial the Same as An Arbitration?

Written By Chris Dolan and Carole Okolowicz

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

Dear John,

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

Informal Settlement Negotiations

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

Mediation

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

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

Arbitration

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

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

Trial

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

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

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

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

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

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

Written By Chris Dolan

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

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

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

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

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

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

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

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