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

Written By Christopher Dolan and Allison Stone

This week’s question comes from Anonymous who asks:

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

Dear Anonymous, 

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

Sign Initial Documents:

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

Provide Documents and Information:

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

Attempt to Negotiate a Pre-Litigation Settlement:

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

Filing a Lawsuit: 

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

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

Discovery:

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

Experts:

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

Mediation:

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

Trial:

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

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

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Can Employers be sued for Workplace Injuries?

Written By: Christopher Dolan and Aimee Kirby

This week’s question comes from Victoria, who asks: My son, who is 24 years old, recently took a job at a manufacturing facility. They have a cleaning crew at night to make sure everything is clean for the next day. My son befriended one of the young female workers of the cleaning crew, as he sees her every day. While his friend was working, she suffered an amputation of her pinky finger on her left hand. My son told me that the company routinely leaves the equipment on so that their workers can start working the minute they hit the yard and don’t have to lose time starting everything up again. My son feels terrible for his friend. and wants to know if she can sue his company despite the worker’s compensation that his friend might get from her cleaning job.  

Hi Victoria,

I am sorry your son’s recent work experience. Workplace safety is generally, on a state level in California, overseen and regulated by Cal-Osha. Cal-Osha most likely inspected the yard after this severe accident. Cal-Osha probably sent an inspector out to determine if any workplace safety violations contributed to the incident, loss of her finger. Cal-Osha will then give the company a chance to respond to any proposed violation and issue a citation if they don’t find the explanation voids the citation. An easy way to think of a Cal-Osha violation is to compare it to a ticket issued by the police for violating a safety vehicle code section. These tickets can range thousands of dollars if the violation is serious. 

That company’s Workers Compensation policy will cover your son’s friend as an employee of the cleaning crew. Workers Compensation Insurance covers injuries on the job and is considered no-fault insurance. No-fault insurance would mean insurance that covers medical expenses and loss of earnings, past and future, even if your son’s friend was responsible for her injury. 

If I understand what you son is asking, it is if, on top of the Worker’s Compensation benefits, anyone at his company can be responsible for their negligent actions regarding leaving on the equipment to save time. 

The question seems straightforward, but the law behind it is very complex. In the Seabright vs. US Airways case, the Supreme Court held that contractors that subcontract for work could delegate all duties to maintain a safe work environment of their facility to the subcontractor. Seabright clarified issues that conflicted with the various appellate courts in California regarding this issue. While it doesn’t make much sense that your son’s employer could delegate safety concerns to the cleaning crew that they knew existed and they created, that is essentially the holding in Seabright. The court’s rationale in Seabright was that the subcontractor was in the best place to take measures in their work to make the condition safe. What is remarkable is that often the subcontractor can’t force the contractor to do something. Still, the court indicated that they must not take the job, if the subcontractor can’t make the job site safe and that if an injury happens, the subcontractor always has the Workers Compensation policy of their employer to fall back on. 

The “Privette Doctrine” has governed the extent of liability that general contractors and property owners have for worksite injuries suffered by a subcontractor’s employees. In Privette v. Superior Court (1993) 5 Cal.4th 689, the California Supreme Court held that “Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work.” 

There are some exceptions to the Privette doctrine that was discussed in the Seabright case. One exception is if the subcontractor is, really, an employee of the contractor. Another exception is if the company your son works for maintained control of the premises and deliberately acted to increase the dangers to his friend. Lastly, an exception exists if there was a mandatory duty imposed on the company that the Privette Doctrine cannot eliminate. 

Lastly, a theory called Federal Preemption is an even more complicated part of this analysis. It stands for the concept that if there is a law in conflict with any federal law, that federal law will always win over state law. Because of all the twists and turns in this particular law, your son’s friend should speak to an experienced attorney on these issues to see if she can sue your son’s employer for their separate negligence. 

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Injured at a Baseball Game: Who is at fault?

Written By: Christopher B. Dolan

If You’re in the Stands, Keep Your Eye on the Ball: Over the past decade, at the beginning of baseball season, I have published a column concerning who is responsible if someone gets hit with a line drive, foul ball and/or broken bat while watching a game. As a lawyer, and a big Giants fan, I like to start off the season by saying, put down your cell phone and keep your eye on the ball during play. A distraction can lead to serious and even life threatening injury.

Balls and bats leaving the playing field and entering the stands are not uncommon. In a 2014 Bloomberg News analysis of ballpark injuries, it was reported that each year in the United States roughly 1,750 spectators are injured by batted balls at major league ballparks. 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 are thankfully minor, there are reports of severe injuries, and even death, due the sport’s use of wooden bats and 90 mph plus fastballs.

In an article published in the Boston Globe by Catherine Cloutier on June 09, 2015, Edwin Comber, a baseball statistician, is quoted as saying that about 73% of foul balls go into the stands. A 2000 lawsuit against the Red Sox revealed that during a five-year period in the 90’s, 36 to 53 fans per year were hit by balls outside the field of play. Furthermore, there have been reports of skull fractures and even brain injuries, as a result of bats and balls entering the stands. As the fans demand to be ever closer to the action, and the field is filled with high-priced seats closer and closer to the plate and baselines, 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, 3 Cal.2d 725, where 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 that 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, they, “assume the risk of being struck by thrown or batted balls; and, if injured thereby, is precluded from recovering damages therefor,” as stated in Brown v. San Francisco Ball Club.

In Neinstein v Los Angeles Dodgers Inc. (1985) 185 Cal.App.3d 176, the Court of Appeals held that:

…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 plaintiff to recover under the circumstances here would force baseball stadium owners to do one of two things: place all spectator areas behind a protective screen thereby reducing the quality of everyone’s view, and since players are often able to reach into the spectator area to catch foul balls, changing the very nature of the game itself; or continue the status quo and increase the price of tickets to cover the cost of compensating injured persons with the attendant result that persons of meager means might be priced out of enjoying the great American pastime. To us, neither alternative is acceptable…

Despite the Court’s unwillingness to intervene to reshape baseball through tort law, I am happy to report that all thirty teams in the MLB have decided to extend safety netting and screening all the way down the first and third baselines to the foul pole. So, if you are in the lower section, you should be better protected from line drives and broken batts. If you are in the upper decks, keep your eye on the ball because, if you are in an unprotected seat, you are legally assuming the risk of injury.

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Chris Dolan Awarded California Lawyer CLAY Award

Thank you, California Lawyer, for this honor. On December 2, 2016, there was a music and art event in an old warehouse in Oakland. This “artist colony” was an unpermitted space where people were living, and “happenings” took place. About 50-60 people were present when, at around 11:20 p.m., a fire broke out. The building, filled with pianos, wood carvings, tapestries and other combustibles rapidly fed the hungry fire and 36 bright, young, promising free spirited souls were overcome with toxic smoke, couldn’t find their way out through the unlit and unmarked exits, and died in what has become known as the “Ghostship fire.”

Many of the finest lawyers throughout California, who were approached for representation, said there was no way to hold the City of Oakland and PG&E accountable, and turned these cases down. We were undeterred and willing to take on the fight even if they said we couldn’t win. These 36 young adults at the threshold of their lives, along with their grieving families, called out for justice and accountability and we took that call.

This case required all my life experience, education, and decades of “figuring it out.” As a young man, I worked dirty, hot, tiring jobs in construction to fund my studies. As a young lawyer, I renovated two old San Francisco buildings including our Market Street headquarters, learning about electrical systems, transformers, voltage drop, metering, and building/electric  codes involved in old buildings. So much of what I bring to the table is practical knowledge. Mary Alexander and I literally dug through the rubble and I used “old school” methods to understand and map out the faulty electrical services. Using my Georgetown Law degree, I “went into the rabbit hole” for 2 solid weeks and researched the s#!t out of the Oakland Municipal Code, State Fire Code, and CPUC regulations to develop the Complaint against the City and PG&E with Bob Bale. Tom Brandi and Brian Malloy used their decades of public entity law knowledge to doggedly drive the case against the City with several arduous, but successful, trips to the court of appeals.

Mary, Bob, Brendan Way, and I relentlessly pursued PG&E through multiple depositions, and a mountain of documents. Eventually, we found a few key documents, with a few critical sentences, to support our allegations that PG&E had violated the CPUC regulations and knew that multiple businesses were drawing too much power through one meter, making the piecework, often un-permitted, electrical system a tragedy waiting to happen.
I was able to focus our energies, using my practical knowledge, to pull these facts from the ashes and build a case with these great lawyers, and many others, including Bobby Thompson, Sophia Acherman, Jennifer Fiore, and Sandra Ribera-Speed. The Executive Committee, Mary, Tom, Bob, Bobby, and I, never considered defeat an option and, in the end, we honored these 36 beautiful lives, and their families, through accountability. We did what they said couldn’t be done. As Margaret Mead said, ‘Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.

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Bumpy Road for Pothole Liability

This week’s question comes from Jennifer in Mill Valley, who writes,

Q: After this year’s rainy winter, new potholes seem to be appearing daily. After I predictably blew a tire a few weeks ago, I thought I’d write a note to the city asking for reimbursement of the cost of replacing my tire. I just received a letter back stating that my claim, which was for less than $150, had been denied. I’m not going to pursue legal action over such a small sum, but I’m irked that the city is able to skirt responsibility for probably hundreds of similar cases, when their roads don’t seem to stand up to the weather.

A: Thank you for your question, Jennifer, and you have my sympathy in this frustrating and all-too-common situation. Potholes are indeed more prevalent after heavy rains, as water seeps through pre-existing cracks in the asphalt and settles underneath, making the ground more susceptible to erosion and sagging as vehicles travel over top. And while this seasonal occurrence seems predictable enough, a city is often not held liable for damage caused by any particular pothole.

A city, like any other property owner, is charged with maintaining their premises in a reasonably safe condition. However, reasonable does not mean perfect and maintenance is not expected to be instantaneous. For example, a deviation in a road’s level measuring under one inch will generally be deemed “trivial” as a matter of law and, therefore, not deemed to be the city’s responsibility. As such, many damages resulting from potholes may simply not fall within any property owner’s scope of liability.

As discussed in previous columns, California Government Code §§ 830 et seq. lays out the rules for liability stemming from any “dangerous condition of public property,” defined as a condition that creates a substantial risk of injury when such property is used with due care in a reasonably foreseeable manner. Cal. Gov. Code § 830.2. Courts have held these conditions to include premises that are “physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself.” Cordova v. City of Los Angeles (2015). This description would seem to clearly implicate potholes that make driving on city roads dangerous.

However, the existence of a non-trivial dangerous condition itself does not mean that a city is liable for damages it causes: the “dangerous conditions of public property” doctrine further requires that the city have either (1) caused it via negligent conduct, e.g. during roadwork, or (2) were actually aware of it (actual notice), or should have been under the circumstances (constructive notice), and had sufficient time to make appropriate repairs. Cal. Gov. Code § 835. Conduct is deemed to be negligent if the actor unreasonably failed to exercise due care, determined by weighing the probability and gravity of potential injury against the practicability and cost of alternative action. Cal. Gov. Code § 835.4. A determination of constructive notice may involve analysis of the dangerous condition’s severity and visibility, as well as the frequency of traffic to the location and occurrence of any previous adverse events, among other factors. Therefore, unless the pothole was specifically and unreasonably caused by a city itself or lay conspicuous and unrepaired for an unreasonable amount of time, the city will still not be held liable for any damages due to even the worst pothole on the road.

Even if all these statutory requirements are met, a city may still raise a number of defenses to defeat liability. It may argue that it had exercised due care by blocking off the location or posting warning signs to prevent the vehicles from making contact with the pothole; alternatively, it may argue that the pothole was in fact so “open and obvious” that no such blockade or warning sign was necessary and the damage was solely attributable to the driver’s inattention to road conditions. A city may claim “design immunity”; that is, it should not be held liable for risks incidental to a previously-approved road design, where the approval was made in the discretion of an appropriate decision-making body based on substantial evidence of the design’s reasonableness. Cal. Gov. Code § 830.6.

As you can see, your frustration with the city’s response is quite likely not due to the obstinance of the city’s legal department, but rather the law itself. However, it is still very important for you to report poor road conditions! Not only will reporting increase the chance that the condition will be promptly repaired, it will also put the city on actual notice of the defect, increasing the chance that it will be held liable for future damages if appropriate repairs are not made. There is a good chance that your reporting will help prevent damage to someone else’s vehicle or even someone being seriously injured.

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Who’s responsible for maintaining the Richmond-San Rafael Bridge?

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

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

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

 

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

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

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

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

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

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Finding Liability for Falling Trees

Recently, I addressed a question posed by a reader who asked who is responsible for damage caused by a tree branch falling from an adjacent yard and crashing through the roof of their house, narrowly missing their child. The article addressed the answer to that question with the assumption that it was a tree owned or maintained by a municipality. This week, I will address trees owned by individual, non-governmental owners.

The reader’s inquiry involved a neighbor’s tree overhanging their property. State law provides that the owner of a tree whose branches overhang an adjoining landowner’s property is liable for damages caused by the overhanging branches. Therefore, if your neighbor’s tree drops a branch and causes injury to a vehicle, person, or structure, they are liable to you for the damages caused.

In general, you are legally allowed to take it upon yourself to cut off any tree branch that overhangs your property from the point where it crosses the boundary. Courts have ruled that shade and debris cast by a neighboring branch, blocking light, clogging gutters, deteriorating a roof, etc., can constitute a nuisance, thereby making the tree owner liable for any and all damages caused. Even insignificant damages will implicate a legal right of action, although the recovery of damages is generally be proportional to the extent of the injuries. Indeed, in the 1952 case of Grandona v. Lovdal, the Supreme Court of California ruled and reasoned as follows: “Trees whose branches extend over the land of another are not nuisances, except to the extent to which the branches overhang the adjoining land. To that extent they are nuisances, and the person over whose land they extend may cut them off, or have his action for damages and an abatement of the nuisance against the owner or occupant of the land on which they grow; but he may not cut down the tree, neither can he cut the branches thereof beyond the extent to which they overhang his soil.”

However, there is a major caveat to this general rule: some jurisdictions, like Sausalito, have specific tree ordinances that may prohibit this kind of self-help. Before altering a tree, it is advisable to look into any such tree ordinance in effect in your jurisdiction. Additionally, even when no local ordinance exists, it would likely be beneficial to first talk to your neighbors before altering a tree rooted on their property; people can get very wound up over trees and it’s never wise to create unnecessarily hostile relationships with your neighbors.

If you have suffered harm from your neighbor’s trees but the neighbor will not consent to altering the tree, you can file an “action for abatement” requesting the court to order your neighbor to remove the trees or, in the alternative, to allow you to cut the branches back to your neighbor’s property line. In Bonde v. Bishop, again in 1952, the California Court of Appeals reasoned with respect to an action by a tree owner against his neighbor who cut back the branches: “The finding that the tree in question was a constant menace to the property of the defendants is sustained by the testimony to the effect that in the past large branches had fallen on the roof and porch of defendants’ house, one of such branches tearing a hole in the roof; that the leaves filled the gutters, and littered the porch and lawn. Clearly, under the testimony appearing in the record here and the findings of the trial court, this tree was ‘an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property.’”

In the case presented here, where a tree with previous, known rot damage fell on a house and punched through the roof into a child’s bedroom, there is likely have a strong case for holding your neighbor liable for negligence as well. Actions in negligence hold property owners responsible for failing to take reasonable care to prevent foreseeable damage to others as a result of dangerous conditions on their property. If one is successful in proving that a neighbor negligently maintained their property, one would have the right to recover both economic losses (property damage, cost for clean-up, medical expenses, etc) and non-economic damages such as pain, disfigurement, emotional distress, anxiety, and, in the child’s case, treatment for what sounds like Post Traumatic Stress Disorder.

Homeowner’s insurance covers economic losses caused by falling trees, so you should open a claim with them. They will later seek reimbursement from the neighbor’s insurance. As for claiming negligence and seeking to recover non-economic losses, I would recommend speaking with an experienced trial lawyer to assist in making the case.

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Who’s Responsible for Damage after The storm?

This week’s question comes from Jannette M., who asks:

Q: “During the recent storms, I had a neighbor’s tree fall onto my roof and part of it came into the bedroom where my son was sleeping. Thank God my son suffered only minor physical injuries, which required only an ER visit and a sling, but now he is afraid to sleep alone and has been having nightmares. The tree is out by the sidewalk. I know it’s not on my property because of where it is located on his side of the fence. I also saw on the news where a woman was crushed and killed in her car by a falling tree/branch. What is the law on this kind of thing? This tree has been a sore subject between us as it has been hanging over my yard for years causing lots of leaves, branches and other junk to fall on the roof, clog the gutters, damage my roses and nearly landed on my car. I have spoken with my neighbor about this on several occasions including the last major storms several years ago, when another limb fell on the fence. He repaired the fence, but didn’t do anything to trim the tree or otherwise make it safe. The branch that fell on my house was from the same “crotch” which showed rot after the prior branch came down. The only thing that has been done to the tree is it was cut one time, about a year ago, by the city, because it was blocking a stop sign. When I confronted my neighbor, he said that he didn’t think he owed me anything saying that it’s probably a city tree and even if it wasn’t, it was an “Act of God.” I have reported it to my homeowner’s insurance which stated that it would repair the property but that my insurance did not provide compensation for the personal injuries suffered by my son. Does my son have a right to collect compensation for his physical and emotional injuries and if so, from whom?

A: Dear Jannette, what a terrible and frightening ordeal. Thank God your son was not more seriously injured or killed. I have handled several falling tree death cases in my career and in each instance they were preventable if only the ailing tree had been trimmed or cut down before a storm caused fatal consequences.

Each city has separate ordinances regarding tree maintenance along the roadway/sidewalk. If the tree is very close to the road/sidewalk, then a city ordinance may require the adjacent landowner to maintain the tree. Some trees are exclusively maintained by the city. If this occurred in San Francisco, The City may be liable for failure to maintain the tree. In 2016, the voters passed Proposition E, StreetTreeSF which amended the City Charter to transfer responsibility for the care of the City’s 124,000-plus trees and surrounding sidewalks from property owners to Public Works. The law took effect July 1, 2017 and provides for $19 million to be set-aside annually in the City’s General Fund to fund StreetTreeSF.

The City has prioritized pruning trees based on safety considerations, to correct structural flaws and to gain necessary clearances for overhead wires, traffic signs and signals, adjacent buildings and traffic flow. If you are in San Francisco, the tree trimming around the sign, if it occurred since July 1, 2017, may have been part of the StreetTreeSF priority trimming program.

For the City to remove a tree, unless it creates a dire emergency, the City follows a public notice process before the tree is cut down so citizens can voice their concerns including opposition to the removal of the tree or requesting trimming instead of removal. An individual can still prune their own tree as long as it is undertaken in accordance with the June 27, 2006 CCSF Pruning Standards.

If the City is responsible for maintaining this tree they may be held responsible for the damage caused to your son under the doctrine of Dangerous Condition of Public Property. Under this doctrine a public entity may be responsible for injuries caused by non-trivial defects in public property that create a foreseeable risk of harm, if the City knew, or should have known with reasonable diligence, about the defect with sufficient time to remedy it. Here, as the tree had been trimmed previously by the City, a suggestion of knowledge is raised as they would have been physically present, examined and evaluated the tree, and trimmed it. If the hazard/rot was in existence at that time, and the City did not remedy it, liability may attach. Additionally, if the City arborists did something in trimming the tree that increased the risk of the tree falling on to your house, such as trimming most of the weight from only the street side, they may be held liable under a simple negligence theory.

Next week, I will provide an analysis of the facts assuming the tree was on private property, away from the street right-of-way, where the examination centers on the private landowner’s responsibility.

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