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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Are My Therapy Records Protected in a Lawsuit?

Written By Christopher Dolan and Emile Davis

This week’s question comes from an anonymous writer who asks: I was recently in a bad car accident. I was in the hospital and required surgery to put some screws and a plate in my shin. I am in therapy for some very private and personal issues arising from an abusive relationship. I don’t want to share that information with anyone, but, I have also been talking to my therapist about the difficulties in recovering from the accident and being so limited with my leg while I heal. It wasn’t my fault, but I am scared to bring a lawsuit.

Is there anything I can do to get compensated but not let the driver who hit me or the insurance companies know my personal business from my therapist even though I talked to her about the accident?

Dear Anonymous, 

You have raised an interesting dilemma that affects many people who file a lawsuit and are in litigation. What you describe is at the heart of many privacy laws in California- the conflict between a litigant’s privacy and the need for information to get to the truth of a matter. 

We need to start at the most basic level to understand how this conflict plays. First, every person has a privacy right to their medical records. The California constitution expressly provides that all people have an “inalienable” right to privacy. This clause has created a zone of privacy that protects against unwarranted compelled disclosure of certain private information, including medical records.

However, this privacy right is not absolute. As your question understands, certain medical privacy rights are waived by bringing a lawsuit. Clearly, in evaluating a leg injury like the one you have suffered, prior injuries to that leg would help inform a clear understanding of the damage this accident caused. Defendants sometimes litigate and argue that all privacy in medical records is waived by bringing a lawsuit. Courts have held the line well, limiting physical records to the body parts in question in the litigation or if the body parts are directly implicated.

Mental health records follow a similar analysis, but there is a more transparent and absolute way to protect therapy records from being disclosed. Part of the damages a Plaintiff in a civil lawsuit arising from an auto accident generally includes what is referred to as non-economic damages: pain and suffering, emotional distress, fear, and anxiety.

Since the non-economic damages are likely discussed in therapy records, as it is in your case where you have explained the difficulties of the recovery process with your therapist, they would be directly relevant to the litigation. However, the law has developed a mechanism to allow protections and allow the maintenance a litigant’s privacy.

The Plaintiff can make an election between what is known as a “garden variety” claim for emotional distress damages or what is called a “special claim”.

When making a “garden variety” claim, the Plaintiff indicates that “no claim is being made for mental and emotional distress over and above that usually associated with the physical injuries claimed.”  If the emotional distress suffered is of the type expected from the physical injuries, a Plaintiff’s therapy records would not likely be at issue and could be kept from disclosure.

A special claim is the opposite. It is where the emotional injuries exceed what would be expected from the physical injuries. An example would be when someone had a severe emotional reaction and sought psychological treatment to deal with the emotional injures from the accident. 

With the bit of information, we have from your question, it seems that a garden variety claim would accomplish your goals of moving forward with a lawsuit while, at the same time, likely keeping your therapy records private. Please understand that there is no half-measure; if some of the records from a therapist are disclosed to prove how difficult your recovery has been, that will often open up the rest of the therapy records.

If you choose to move forward with a lawsuit, make sure to find an attorney who is knowledgeable about these things and can advise you regarding these important issues. 

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What Should I Do If I am Involved in an Accident?

Written By Christopher B. Dolan and Allison Stone

This week’s question comes from Remi P.  from the Bay Area: During my commute to work I sometimes see people involved in car accidents. I hope it’s never me, but how should I prepare myself if I’m ever involved in a car accident?

Thank you for your question and reaching out, Remi. Being involved in an accident can be scary, stressful, and overwhelming. It is important to do your best to stay calm and remember the following tips:

Make sure you are safe:

The priority is always your safety. Only exit your vehicle if is it is safe to do so. If you are in the middle of a lane or intersection, turn on your hazard lights to alert other drivers to slow down.

Call the police: 

Regardless of whether it is a major or minor accident, report it and have the accident documented and a report created. 

The police will come to the scene to help make sure the parties exchange information and will make an official report. Even if you think the accident is minor, reporting the accident to the police ensures a record is created, which often provides key evidence in a personal injury claim.

Keep in mind that in some areas and instances, officers may not respond to a minor collision. In the situation where an officer does come to the scene, usually the officer will provide you with an information card which contains what you will need to obtain the report.  But regardless, always make sure to get the officer’s name, badge number and contact information including what department s/he works for (police department, sheriff’s department, etc.), and if there is a report number. 

Obtain contact information from all drivers:

Get all identifying information, including names, addresses, telephone numbers, email addresses, driver’s license numbers and insurance information for any driver involved in the collision. If the collision involves multiple vehicles, obtain all the above information from each driver.

In addition, get all the vehicle information including the year, make and model, color, license plate number and vehicle identification number (VIN) for each vehicle involved. Get the driver’s insurance company’s name, the insurance policy number and the insurance company’s phone number. 

Ask for physical copies of the driver’s registration and VIN number to ensure accuracy. You can simply take photos of the documents with your phone to make the process of collecting this information easier. If the driver’s name does not match up with the vehicle’s registration or insurance, ask the driver what their relationship is to the vehicle’s owner.

Obtain contact information for all passengers and witnesses:

Be sure to get all identifying information, including names, addresses, phone numbers and email addresses of any witnesses, as well as other passengers in any vehicles involved in the collision. These individuals will often have important information that you are not aware of. See if any witnesses will provide you with details about what they saw and heard before they leave the scene.

Take photos to document the scene: 

Use your cell phone camera to take pictures and video of the scene. This includes taking multiple photos of your vehicle, the other vehicle(s), the scene, any traffic lights or street signs, visual obstacles, skid marks, broken glass, and other items on the roadway. Do your best to photograph everything from multiple angles. Get photos that show the position of the vehicles relative to each other and relative to the street/freeway. This is necessary so a person who was not at the scene can look at the photos and understand what occurred, and how the vehicles came to their point of rest, and re-create the collision if need be. Also, photograph any visible physical injuries such as bruising, cuts, abrasions, bleeding, etc.  

Avoid discussing fault:

Regardless of how the accident happened, you should refrain from apologizing or admitting fault for the collision. The insurance company and/or lawyers will collect multiple statements and documents before they come to a determination of fault. Do not to argue with the other driver. Simply limit communication to exchanging information.  

Seek medical attention if needed:

If you were badly injured, call 911 immediately. If someone is taking you to the emergency room before police or paramedics arrive, leave your contact information with someone at the scene.

When the paramedics arrive, let them examine you. 

Remember, due to shock and adrenaline, you may not realize you have been injured. It is human nature to say, “I’m ok” or “I’m fine,” but your injuries may not reveal symptoms immediately and injuries can take several days to present themselves. To avoid having your words used against you later, you can say, “I’m shaken up, I do not know if I am injured and will be seeking medical care and treatment if necessary” or something to that effect.  

If you do not go straight to the emergency room from the scene, see your own doctor as soon as possible because you may have injuries that become apparent later.  

Your health is paramount. Sometimes injuries from accidents can last a lifetime. Your health and medical care should be your priority regardless of who is at fault in an accident. 

Document medical and accident-related details:

Keep track of your medical appointments (doctors’ names, their specialty, and visit dates) and medications. Also keep a record of days missed days from work.

Report the Accident to the California Department of Motor Vehicles:

California law requires traffic accident on a California street/highway or private property be reported to the Department of Motor Vehicles using the SR-1 Traffic Accident Report form within 10 days if there was an injury, death, or property damage more than $1,000. 

If you were in an accident, do not hesitate to contact us for a free consultation at dolanlawfirm.com

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Be Smart and Stay Aware, Even When Impaired

Written By Christopher Dolan and Vanessa Deniston

This week’s question comes from Emily from the Bay Area:Recently, I took a rideshare home from a holiday party I attended in the city. During the party, I had several drinks and by the time I was ready to leave, I was not in a state to drive myself. I called a rideshare vehicle to take me home. During the ride, the driver asked me several personal questions that made me feel uncomfortable, specifically what kind of guys I was attracted to and if I had roommates or lived alone. When I first approached the car, the driver even encouraged me to sit in the front seat next to him, which I found odd.  Luckily, I was not so drunk that I could not perceived these red flags. I ended up calling my friend who kept me company on the phone all the way home. Hypothetically, had the driver pulled over and tried to attack me, what legal recourse would I have and against whom?

We are so glad you arrived home safely, Emily. We hear this type of story frequently. It’s much more common than you would think. Rideshare services, like Uber and Lyft, can offer drunk partygoers a safer alternative to getting behind the wheel intoxicated, but all riders should still exercise caution, especially women riding alone. While most rideshare companies subject their drivers to criminal background checks, the system isn’t fail-proof as evidenced by the over 4,000 reported incidences of sexual assault to Lyft between 2017-2019 and nearly 6,000 reported to Uber within a similar timeframe. 

The great majority of rideshare assault cases in California involve intoxicated female passengers riding alone with a male driver. Indeed, in such a circumstance the likelihood of an assault greatly increases. An intoxicated female passenger will not be as alert as she otherwise might be if she is sober, missing red flags. She is more likely to engage in seemingly friendly banter with the driver and divulge personal details she may not otherwise volunteer. She is also unlikely to have awareness of where she is and may not notice if the driver has deviated from the designated route to her ultimate destination. If the driver makes advances on her, she is unable to give consent and may have an impaired memory regarding what occurred and when. She is also likely to struggle with providing an accurate description of her perpetrator. It is important that all women and solo passengers traveling in a rideshare vehicle be aware of common troubling signs. 

To address your question directly, Emily, if you are assaulted by a rideshare driver, you are likely to have claims both against the driver and the rideshare company the driver contracts with. In some isolated incidences, you may also have a claim against third parties, if that third party requested the ride on your behalf and you are an intoxicated minor.  If you are assaulted during a ridesharing ride, or you believe you may have been assaulted, it should be reported immediately to both the police and the rideshare company. Take immediate action to preserve any receipts for your ride and take screenshots of any information within the app that may identify the date and time of the ride, the identity of the driver, the driver’s license plate number, and the route taken by the driver to your final destination. This information will significantly narrow down the pool of perpetrators and allow the police and the rideshare company to identify him more easily. Preserve all clothing you were wearing on the date of the assault and visit the ER to have a rape kit evaluation performed. 

To the extent possible, avoiding such circumstances entirely is the key objective. There are several steps you can take to thwart or seriously deter opportunistic predators in such circumstances and you utilized some of them.  Above all else, trust your instincts. If the behavior of the driver feels suspect or off to you, do not get in the car. Simply call another ride.  If the driver exhibits concerning behaviors during the ride, cease further engagement with the driver and involve a third party. Call a friend to keep you company on the phone during the ride home or text someone you have regular contact with, reporting your whereabouts, when you should be home and the behaviors you perceive to be troubling. If the driver offers you food or drink after exhibiting troubling behaviors, politely decline.  Many rideshare apps have integrated a section within their apps where you can report safety concerns. Understand, this is not, nor should it be, a substitute for calling 911. If the driver inadvertently cancels the ride and pulls over in an unfamiliar area, call the police immediately. 

If you believe you may have been the victim of an assault, report it to the police immediately and contact an attorney to advise you of your rights. Your action may well prevent further assaults from occurring if the perpetrator is identified and suspended from the rideshare platform.

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In The Zone of Danger: Witnessing a Loved One suffer Severe Injuries

Written by Christopher B. Dolan 

This week’s question comes from Travis from the East Bay: 

My wife of 43 years and I were crossing the street in San Francisco. She was just a few steps ahead of me when a car ran the red light and hit my wife! The vehicle struck her with such force that she became airborne before collapsing on the ground. I was stunned and horrified. She was lying there, and for a minute, I thought she might have died. She had lost consciousness and was not moving. Fortunately, she lived, but she sustained two fractured legs and a significant head injury. She had to stay in the hospital for a few weeks. I thought I had lost her. She is the love of my life, and the thought of losing her was terrifying. Watching her get hit like that was incredibly scary- I think I stopped breathing. Since then, I have become increasingly anxious and unable to sleep as the image of her getting hit is on constant replay in my mind. I’ve had to seek therapy. I know she can file a lawsuit for her injuries, but what about me?

I am so sorry this happened and that you had to witness it. It appears that you are suffering from emotional distress as a result of this incident. You certainly do have a claim for negligent infliction of emotional distress. In California, the law of Negligent Infliction of Emotional distress can flow from two different theories: Bystander Theory and Direct Victim Theory. The Bystander theory requires that the plaintiff contemporaneously observe the injury-causing event. Thing vs. Chusa (1989) 48 Cal.3d 644. The difference between the bystander and the direct victim cases is that the direct victim cases seek emotional distress damages based on the breach of the duty owed to the plaintiff that is “assumed by the Defendant or imposed on the defendant or imposed on the defendant as a matter of law that arises out of a relationship between the two.”  Marlene F. v. Affiliated Psychiatric Medical Clinic, (1989) 48 Cal. 3d 583, 588, 257.

You could recover under the bystander theory. To prove negligent infliction of emotional distress as a bystander, you must show: 1) that you are closely related to the victim, 2) the defendant’s conduct negligently caused injury or death to the victim, 3) that you were present at the scene of the injury (“zone of danger”) when it occurred and were aware that the victim was being injured, and 4) as a result of the injury, you reasonably suffered severe emotional distress beyond that which would be anticipated in a disinterested witness.  Dillon v. Legg (1968) 68 Cal.2d 728. 

In your case, you witnessed your wife suffer life-threatening injuries as a result of the negligent driver who ran the red light. You were in the zone of danger as you were present when the collision occurred and are experiencing severe emotional distress as a result. Thus, you can recover any medical bills, bills for psychological counseling, lost wages, and pain and suffering because of the accident. 

We hope you and your spouse continue to get better. 

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Ruling Finds Proposition 22 Unconstitutional

Written By Christopher B. Dolan and Matthew D. Gramly

 

This week’s question comes from Josh D. from Marin County:

With our current 24-hour news cycle it’s hard to keep up with all the important issues in our daily lives. It seems like Proposition 22 was an initiative constantly discussed 5 years ago that went away. Did Proposition 22 ever take effect?

Thanks for reaching out Josh. Many people may have forgotten about Proposition 22. On August 20, 2021, Alameda County Superior Court Judge Frank Roesch ruled Proposition 22 to be unconstitutional. Recall that Proposition 22, a ballot initiative passed by California voters in 2019 permitted many gig economy companies such as Uber, Lyft and Door Dash to classify their drivers as independent contractors instead of employees of those companies. These companies and others poured over $200 million into the campaign to pass Proposition 22. The benefit to these companies in classifying their drivers as independent contractors (not employees of the companies) is that these companies can then evade almost every regulation in place governing how companies treat their employees as well as virtually every cost associated with having employees such as health insurance benefits, minimum wage laws, safety regulations, workers compensation insurance, etc. As it relates to drivers, these companies would be excused from paying employees mileage, reimbursing them for the cost of gasoline and vehicle maintenance. The cost savings to these companies would have been in the billions of dollars annually. The downside of course, is that the drivers would have to pay for their own health insurance coverage, for example, and would have almost none of the benefits that most full-time employees receive. The cost savings to the companies gets shifted almost entirely to the drivers as an expense to them.

Proposition 22 was far reaching and expansive in its language and in the sheer number of components it included. For instance, it also contained language that would prohibit drivers from forming a union. For that reason, as well, Judge Roesch wrote, Proposition 22 violated the Constitutional requirement that ballot initiatives be limited to a single subject. Relative to this component prohibiting unionization, Judge Roesch wrote that this prohibition,

“appears to only protect the economic interests of the network companies in having a divided, un-unionized workforce, which is not a stated legal goal of the legislation.” 

Judge Roesch is saying that the drafters of Proposition 22 overreached both on process and in substance.  

Proposition 22 itself was created as a ballot initiative by these companies as a direct response to Assembly Bill 5, a law passed by the California State Legislature and signed by Governor Gavin Newsom. AB 5 would have required these types of companies to classify their drivers as employees and conferring upon those employees such benefits as minimum wage protections, workers compensation insurance, overtime pay, etc. Much of the basis for Judge Roesch’s ruling in finding Proposition 22 to be unconstitutional rests largely on the idea that in California, in accordance with the California State Constitution, only the State Legislature can, for example, regulate compensation for workers’ injuries. That goal cannot be accomplished through a ballot initiative process because the Constitution grants that right exclusively to the Legislature. In essence Judge Roesch said that Proposition 22 took that power away from the Legislature, thereby violating the State Constitution. In his ruling, Judge Roesch did say that the voters of California do have the power to make such a change to the State Constitution, but “If the people wish to use their (ballot) initiative power to restrict or qualify a plenary and unlimited power granted to the Legislature, they must do so by (a ballot) initiative constitutional amendment, not by (a ballot) initiative statute.” Voters would have to amend the Constitution first, amending it to permit, in effect, the passage of legislation through ballot initiatives. Neither the voters nor the Legislature have thus far amended the State Constitution in such a manner. The State Legislature had followed the Constitution in properly passing AB 5 through the legislative process as dictated by the Constitution. The backers and authors of Proposition 22 had not, thereby violating the State Constitution.

A spokesperson for ride sharing company Uber said that the company will file an appeal of Judge Roesch’s ruling imminently. Uber has since filed their appeal and requested a stay on Judge Roesch’s ruling until their appeal is complete. That means that while Uber’s appeal is pending, Judge Roesch’s order does not yet take effect, thereby leaving Proposition 22 in effect unless and until the appellate court hears the case and issues a ruling. So, for now, at least, these companies do not yet have to classify their drivers as employees and can continue to classify them as independent contractors, saving companies like Uber, Lyft and Door Dash billions of dollars in costs in the meantime, to the detriment of their drivers.

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Reckless Driving during COVID-19

Written By: Christopher B. Dolan and Megan Irish

Kara from San Francisco writes:
I’m so frustrated by the attitudes of drivers on the road these days, what are people thinking? It seems like people are zooming past, zigzagging in and out of the lanes, and just going too fast. Don’t people know it’s dangerous to drive like that?

Dear Kara: You are right and the statistics are supporting your observations. People are driving faster and more erratically. Following several years of declining fatalities, the pandemic has killed in more ways than just the virus. When people were ordered to stay at home and shelter in place, many did.

Overall, the National Safety Council’s numbers are on target to show that 13% less miles were driven in 2020 as compared to 2019; that is clear evidence of many Californians’ abiding by the stay-at-home orders. Nonetheless, despite fewer miles driven, more people died in car crashes in 2020 than in 2019.

How is this possible? The simple answer is speeding.

Nationally there were 42,060 traffic collision deaths in 2020 as compared to 39,107 in 2019. Only nine states had fewer deaths in 2020 than in 2019. Of the over 42,000 deaths in the United States, 3,723 of these deaths occurred on California roadways. Many of these lives were lost due to reckless driving and speeding.

The National Safety Council tracks collisions on a national level and breaks down the collisions by state. The California Highway Patrol, Office of Traffic Safety, also tracks traffic collisions within California and analyzes how and why collisions occurred.

Unfortunately, with fewer cars on the roadway, it seems some drivers saw the less crowded roadway as an invitation to speed. Many of those who decided to drive recklessly caused severe collisions with fatalities to themselves and/or others.

Law enforcement made efforts to ticket bad actors, and anecdotally police have related that they stopped more speeders and issued more speeding tickets in 2020 than in years past, but they were unable to stop everyone. For a “standard” speeding ticket, drivers can get a point on their driver’s license and often they can go to traffic school.

But, when a driver is more than a few miles over the speed limit, or has other aggravating factors such as alcohol and driving under the influence, a driver’s actions can be considered “reckless.” California Vehicle Code Section 23103 defines reckless driving as “a person who drives a vehicle upon a highway in a willful or wanton disregard for the safety of persons or property.”

There are severe consequences for reckless driving that will impact a person’s life and finances. For instance, a driver can be sentenced to serve between five and 90 days in county jail. The fines can be up to $1,000 (CVC 23103(c)), and a conviction would also get them two points on their DMV record.

A reckless driving conviction will also drive up drivers’ insurance premiums and their car can be impounded. Retrieving an impounded car is expensive, as some impound yards charge as much as a $125 for the tow, a hundred or more in “release fees” and daily storage fees on top of that. Additionally, a driver’s license can be revoked by the DMV for up to six months, which would interfere with a person’s commute to work, and obligations to family members. Choosing to violate the suspended license would have a whole host of other severe consequences.

The reckless driving charge can be charged as a felony if it causes bodily injury. In addition to the monetary consequence of fines, court fees and increased insurance premiums, such a conviction can lead to anywhere from 16 months to three years in prison. Even if a driver only gets set with a misdemeanor, it will show up on background checks, and can deter a future employer from selecting them for a new job. Reckless driving can have severe and lasting consequences for a driver.

Separate and apart from reckless driving, there is “excessive speeding” which is driving at over 100 mph. Excessive speed can be an infraction under CVC 22348(b) and carries fines up to up to $500. If a driver is going over 30 mph above the freeway speed, or 20 mph on a roadway it can also be a criminal offense. Excessive speeding fines range from $900 for first time offenders to $4,190 for repeat offenders.

A driver’s license can be revoked from 30 days for a first-time offense, or up to a year for repeat offenders. As well, there can be two points added to a driver’s record with the Department of Motor Vehicles and increased insurance premiums.

With all of this one would think that responsible driving should be the rule, not the exception, and yet it often is not. Be safe out there.

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Are Uber drivers employees?

Today’s question comes from Jennifer T. in Diamond Heights who asks:

Q: “I drive for Uber, Lyft, and DoorDash. I have filed my taxes as an independent contractor as that’s what I was told to do by these companies. I heard that there is a new law which will provide me with protections that usually have only been provided to employees. What am I, an independent contractor or employee? What new protections do I have now?”

A: The new law that you have heard about, AB 5, amends Labor Code Section 3351, adds a new Labor Code Section 2750.3, and amends sections 606.5 and 621 of the Unemployment Insurance Code, to ensure the workers who are currently exploited by being misclassified as independent contractors are instead recognized as employees who have basic rights and protections. The legislative history produced during its enactment declared that when workers are unfairly misclassified as independent contractors: (1) these workers are harmed by the loss of significant workplace protections such as they deserve under the law, including a minimum wage, workers’ compensation if they are injured on the job, unemployment insurance, paid sick leave, and paid family leave; (2) it is unfair to other employers who must compete with companies that misclassify; and (3) there is harm to the state of California in the form of lost revenue from these companies avoiding obligations such as payroll taxes and premiums required under workers’ compensation, Social Security, unemployment, and disability insurance programs.

The new Labor Code Section 2750.3(a)(1) remedies these injustices by providing that a person providing labor or services for remuneration (money) shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that all of the following conditions are satisfied: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the work, both under the terms of the contract for the performance of the work and in fact; (B) the person performs work that is outside the usual course of the hiring entity’s business; (C) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

The amended Labor Code Section 3351 provides that the law applies to every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and specifically includes: non-resident immigrants and those without proper documentation; minors; elected and appointed paid public officers; incarcerated persons engaged in vocational rehabilitation for pay; truck drivers; and tutors. The law also exempts a long list of occupations including, but not limited to: physicians and surgeons; dentists; podiatrists; psychologists; veterinarians; licensed lawyers, architects, engineers, private investigators, accountants, barbers, estheticians, and cosmetologists; registered security brokers and advisors; real estate salespeople; live-in nannies; direct sales people; and commercial fisherman. The law also does not apply to any workers who can negotiate for their rate of pay, control their hours, and market themselves to multiple businesses, such as: travel agents; outsourced marketing consultants; HR administrators; graphic artists; design professionals; grant writers; fine artists; tax preparers; some still photographers; photojournalists; freelance writers who only do occasional work; repossession agents; and construction trucking service providers.

You, as a Lyft, Uber, and DoorDash driver, are squarely protected under this law and must now receive the benefits other employees would receive, including earning at least the minimum wage. In its perpetual refusal to follow the law, Uber has indicated that it will not comply with AB 5 and filed a federal lawsuit at the end of last year claiming the law to be unconstitutional. Notably, it did not file in a California State Court, which it predicts would be a futile exercise because AB 5 was based on a groundbreaking California Supreme Court decision, Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”), which established the new test for determining whether a particular set of job circumstances make someone an employee or independent contractor. Uber hopes the conservative U.S. Supreme Court will be more receptive to their pleas. Fortunately, this will likely be an uphill battle as the Supreme Court has routinely upheld a state’s rights to legislate its own citizens’ working conditions.

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Closing Loopholes That Allow Bike, Scooter Rental Companies to Skirt Liability

Jump Electric Bike (owned by Uber) and Lyft Escooter parked side by side on the sidewalk.

This week’s column is about personal mobility devices: bikes, scooters and other transportation products available for rent through apps, and which we see littered around the Bay Area. In this column, I will answer a reader’s question and share information I have gathered while fighting to pass bills in Sacramento to require personal mobility device providers to carry insurance on the devices and prohibit contract clauses that allow these companies to escape liability for their own negligence.

Harold G. from San Francisco asks:

Q: “I was reading in The Examiner that one of Uber’s JUMP Bikes caused injury to a rider because after he applied the brakes and the bike stopped suddenly and threw him off. (See “Uber failed to tell riders about faulty bike breaks,” published April 17, 2019) The article said that Lyft’s Go Bikes also have defective brakes that have caused injury, but Lyft publicly announced the defect while Uber apparently tried to fly under the radar by removing the bikes from the streets quietly. Isn’t the company automatically responsible if its bikes fail like this and cause injury?”

A: Harold, it would indeed seem to be that simple but, alas, it is not. When you “click to accept” you are entering into a binding contract, despite the fact that most people never bother to read its lengthy provisions. Uber, Lyft and other providers have inserted “assumption of the risk” agreements and “release and waiver of liability” clauses within their “click to accept” contracts in order to deprive customers of their ordinary legal rights and allow these big corporations to effectively escape accountability for their dangerous products. In the recent cases of defective brakes, it would not surprise me in the least if Lyft and Uber claim immunity from liability by citing these clauses.

“Assumption of the risk” clauses state that a user recognizes the inherent dangers in an activity and accepts the risk of injury or death from engaging in that activity. If you have ever been skiing, you have most likely signed an assumption of the risk clause exempting the mountain from any injury you sustain while skiing, including if you ski into a tree, hidden object, other skier, etc. Many “outdoor adventure” activities like parasailing, skydiving, horseback rentals, etc., also have such clauses to relieve rental providers from liability for risks inherent to and associated with the sports. The law prohibits “assumption of the risk agreements” from exempting providers from liability for willful or grossly negligent acts.

A shameful difference in the clauses included in many new personal mobility device contracts is a further exemption from liability for injuries caused by defective products. This not only demonstrates lack of care for customers’ safety, but it also creates a “moral hazard,” giving device manufacturers and providers reduced incentive to ensure their products are safe. “Release and waiver of responsibility” clauses are similarly designed to totally exempt rental providers from any liability whatsoever from every imaginable scenario where, under general application of law, they would be subject to legal action for the harms they cause. Instead of responsibly maintaining insurance on the devices, the cost of which could be passed on as a small fee across all customers, these companies instead choose to push all medical bills, lost wages, and damages for pain, loss of function, or even death onto individual injured parties.

That’s right, these rental contracts provide that, even if a device provider are negligent (e.g. by putting a dangerous bike in the rental stream), the rider has agreed to shoulder legal responsibility for the injuries caused. Not only that, but the contracts exempt themselves from judicial review and take away a customer’s right to a public jury trial, requiring instead that the matter be handled through private arbitration, using a private judge and secret proceedings. As a result, not only does the injured party lose access to ordinary legal remedies, but the public at large is kept in the dark about the dangers of these devices and the harms they cause.

It is for this very reason that I am championing AB 1286, a bill introduced by California Assemblymember Muratsuchi and sponsored by the Consumer Attorneys of California, which would preclude these companies from including “assumption of the risk” and “release and waiver of responsibility” provisions in their “click to accept” agreements. I have now testified twice on this bill against the opposition of Lyft, Uber, the California Chamber of Commerce and the technology sector. I successfully fought for consumers’ safety when Uber and Lyft refused to take responsibility for carnage caused by drivers employed by their rideshare services; I hope I will be successful again. In the meantime, please call Muratsuchi (916) 319-2066) and state your support for AB 1286 and objection to these waivers.

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Out Of Tragedy Comes Change

This week’s article will focus on the trial and conviction of former Uber driver, Syed Abid Muzaffar, for the charge of vehicular manslaughter arising out of the December 31, 2013, death of 7-year-old Sophia Liu as she was walking home from her grandmother’s house with her mother Huan, and brother, Anthony. As they were lawfully crossing Polk while traveling east on Ellis, Muzaffar turned right crushing Sophia and catastrophically injuring Huan and Anthony. Huan testified that just before being run-down she saw Muzzafar looking down at his cell phone, presumably checking his Uber app. At the time of Sophia’s death Uber first claimed that Muzzafar was not acting as an Uber driver then, later, admitted that he had the app open but sought to continue to distance themselves from the tragedy by saying that he had no passenger onboard.

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