Releases for Gross Negligence In the Context of Sports or Recreational Programs or Services are Void In California

By Michael Reiter, Attorney at Law

Most people have been asked to sign releases at various times, particularly for participation of their children in youth activities.  Are they valid?  They can be in many cases.  But in certain cases, they may be void if there is a public policy reason or statute.  For example, Civil Code section 1668 prohibits contracts which “have for their object, directly or indirectly, to exempt anyone from responsibility for his own fraud, or willful injury to the person or property of another, or violation of law, whether willful or negligent, are against the policy of the law.”  Further, case law in California has prohibited releases of future gross negligence as being void against public policy.  City of Santa Barbara v. Superior Court (2007) 41 Cal.4th  747, 758.

There is an entire inquiry into whether a release is valid, which I won’t discuss here today.  Suffice it to say, you should consult with a personal injury attorney even if there is a release, because it is a technical question.  Most, if not all, personal injury attorneys provide a free consultation in personal injury cases.

In the City of San Barbara case, mentioned above, the mother of a developmentally disabled 14 year-old signed a release purporting to release the City of Santa Barbara and its employees from liability for “any negligent act” related to the child’s participation in a summer camp, run by the City, for developmentally disabled children.  The child drowned, and the parents filed suit.

We conclude . . . that an agreement made in the context of sports or recreational programs or services, purporting to release liability for future gross negligence, generally is unenforceable as a matter of public policy. Applying that general rule in the case now before us, we hold that the agreement, to the extent it purports to release liability for future gross negligence, violates public policy and is unenforceable.

My Torts Professor, Kenneth Manaster, drummed in our heads that “gross negligence” was not a term that we should bandy about, and of course he said it in 1995 or 1996, eleven years before City of Santa Barbara. There is a sort of “folk law” idea of what gross negligence is, perhaps informed by the law of other, non-California states.  In the City of Santa Barbara case, the California Supreme Court distinguishes between ordinary negligence and gross negligence:

We begin by defining the terms that underlie the issue presented. “Ordinary negligence”—an unintentional tort—consists of a failure to exercise the degree of care in a given situation that a reasonable person under  similar circumstances would employ to protect others from harm. (See, e.g., Donnelly v. Southern Pacific Co. (1941) 18 Cal.2d 863, 869, 118 P.2d 465 (Donnelly ).)

 “Gross negligence” long has been defined in California and other jurisdictions as either a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1185–1186, 7 Cal.Rptr.3d 552, 80 P.3d 656 (Eastburn ), and cases cited; accord, Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1240, 244 Cal.Rptr. 714 (Colich ); Kearl v. Board of Medical Quality Assurance (1986) 189 Cal.App.3d 1040, 1052–1053, 236 Cal.Rptr. 526; see also, e.g., Prosser & Keeton, The Law  of Torts (5th ed.1984) § 34, pp. 211–212 (Prosser and Keeton); 57A Am.Jur.2d (2004) Negligence, § 227, p. 296.)  City of Santa Barbara v. Superior Court, 41 Cal. 4th 747, 753-54, 161 P.3d 1095, 1099 (2007).

The procedural posture of the City of Santa Barbara was somewhat unusual.  The City moved for Summary Judgment, lost, and appealed immediately.  The case was set for trial, and then the City settled before the trial started for $2,000,000.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

LAPD Legal Payouts By the City of Los Angeles

By Michael Reiter, Attorney at Law

On January 22, 2012, the Los Angeles Times published a spreadsheet showing the amounts paid by (or collected in some rare cases) by the City of Los Angeles related to the Los Angeles Police Department (LAPD).  The numbers are fascinating, and no doubt required a great deal of clerical work either by the employees of the Los Angeles Times, or by the employees of the City of Los Angeles.  This is a good illustration of the benefits of the California Public Records Act.

The cases run the gamut from minor traffic accidents to wrongful death suits to disability payouts to Federal civil rights cases, and even dangerous condition of public property.  I have a perspective on this data because I am a plaintiff’s attorney, both in the personal injury and the 42 U.S.C. Section 1983 civil rights arenas, and because I defended cities and police officers for about ten years, first as a Deputy City Attorney and then as as an Assistant City Attorney.

The information regarding the car accidents is not surprising.  In an accompanying article, reporter Joel Rubin writes:

The city has paid nearly $24 million in settlements or verdicts in about 400 LAPD traffic-related lawsuits over the last nine years and must contend with dozens more cases that remain unresolved, city records show. In all but a few of the closed cases, city officials opted to pay a negotiated settlement instead of taking their chances at a trial — a strong indication that the officers were in the wrong.

However, other interesting information can be gleaned from the data: the City of Los Angeles does not try as many cases as you would think for a City of that size or a City Attorney’s Office of that size.  I counted only 25 trials out of 921 cases with a listed disposition.   On the other hand, there were not that many outright $0 verdicts or settlements, 16 by my count.

Thirteen of those are what I would characterize as alleged Federal Civil Rights allegations: 4 were listed as Dismissal-Court, which I would take to mean a Federal Rule of Civil Procedure Rule 12(b)(6) dismissal for failure to state a claim upon which relief can be granted.    There are 4 voluntary dismissals, though it is not clear if that means that there was a dismissal with a waiver of costs and a release, or whether the cases listed as Settlement (three cases).  Only one of the civil rights cases was listed as won on Summary Judgment.  One case does not give information about how the City of Los Angeles was not liable.

Federal Civil Rights cases are very fact dependent, so looking at the raw statistics without more information (the alleged conduct, the case number, stage of disposition), for example.

This is good investigative journalism by the Los Angeles Times.

 

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law.

Address : 1255 W. Colton Ave., Suite 104

Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Gophers Can Cause Trip and Falls

By Michael Reiter, Attorney at Law.

I went out for another walk today, in the late afternoon.  I love to see California native wildlife, like this:

California Pocket Gopher

I am a big fan of California wildlife, particularly Pocket Gophers, though not as much as my late friend Emma.  I had never seen a living pocket gopher before, but this individual poked his head up a few times, and I was able to get this picture of his head.  Unfortunately, I only had an iPhone to take a picture, and it was from about six feet away.  This is a zoomed photo, modified with Photoshop Elements, and I have helpfully drawn a circle around the gopher

Gophers can cause damage to lawns.  They can also damage parks.  When I was a Deputy City Attorney for the City of San Bernardino, I defended a lawsuit involving an AYSO coach who allegedly tripped and fell in a field in Wildwood Park.  Because the case involved a public entity, the plaintiff had to plead and prove a dangerous condition of  public property cause of action, but with a private landowner, the standard is typically negligence.  The case also involved cross-complaints against the City’s pest controller contractor and the American Youth Soccer Organization.  If I recall correctly, the American Youth Soccer Organization, Inc. picked up the City’s defense under an express indemnification clause in a field use agreement.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Finding Out Who Owns A Piece of Infrastructure, Part Two

By Michael Reiter, Attorney at Law.

When someone is injured because they tripped and fell on a sidewalk, or in a field, or near a school, the immediate answer to who was responsible is not always readily apparent.  For example, cities often claim that the sidewalk is jointly controlled with a homeowner.  Some cities will cross-complain against the homeowner or other landowner.  Some will just assert that the homeowner is responsible and wait for the person injured, typically the plaintiff, to make a claim or file suit against the property owner.  The public entities that I have worked for were reluctant to cross-complain against a single family landowner because it could create a political problem.  Sometimes, a plaintiff, for a variety of reasons, does not want to sue one organization or another.  Since economic damages are joint and severable, that may be a judgment call a plaintiff is willing to take.  Another reason may be that the plaintiff or the plaintiff’s lawyer has failed to comply with the Government Claims Act.  Then, the defendant may wish to file a Government Claim and then file a cross-complaint for indemnification.

Yestersday, I discussed the probable owners of a parcel behind my office including  the related infrastructure.  When we left off, we found clues that it was owned and/or controlled by SANBAG and possibly BNSF, the successor to AT&SF.

Redlands Industrial Spur Utility Pole Without Wires

Here are some pictures that I took.  This shows a close-up of one of the many utility poles on this portion of the Redlands Industrial Spur without wires.  There is no indication on the pole, that I could find, what it was used for, but on the cross arm, you can find some old insulators.

Here is a view of the line of utility poles that lack working wires on the Redlands Industrial Spur in this location:

Redlands Industrial Spur With Tracks and Utility Poles

You can see Mount San Antonio in the background, and my red office building roughly in the middle.  To the left is Redlands Boulevard, formerly Highway 99.  Whether it is dedicated public right of way or not, there is evidence that people use the area between the trees and the utility poles for walking.  I saw one person when I was back there.

Redlands Industrial Spur Track, Missing Ties

You can see the track is elevated from the rest of the parcel.   To the north (generally) of the tracks is a culvert.   There is evidence that the track shown above was washed out by flooding.  The rails remain, but the ties are resting a few feet below.

Most of the infrastructure out there does not have an indicia of ownership.   For example, the utility poles lack a number like you might see on the joint poles along West Colton Avenue.  One exception is at the utility box closest to Tennessee.  On its side it says:

BNSF Emergency Call

Does that mean that BNSF controls this parcel, or the infrastructure on the parcel?  Not necessarily, but it is evidence of the fact.  The have an easement for rail freight.  The property, according to the information discussed yesterday is owned by SANBAG.  They acquired it from the BNSF’s predecessor, AT&SF in 1993.  BNSF was not formed until 1996, yet the stencil says BNSF, not AT&SF.  There is a toll-free phone number under “Call” but it is difficult to read.

The basic investigation (site visit, review of easily obtainable information online) of the property suggests that this infrastructure is owned by SANBAG and/or BNSF, but additional investigation would need to be done, either through public available information, or through discovery if a lawsuit was filed to reach a definitive conclusion.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Finding Out Who Owns A Piece of Infrastructure, Part One

By Michael Reiter, Attorney at Law.

When someone is injured because they tripped and fell on a sidewalk, or in a field, or near a school, the immediate answer to who was responsible is not always readily apparent.  For example, cities often claim that the sidewalk is jointly controlled with a homeowner.  Some cities will cross-complain against the homeowner or other landowner.  Some will just assert that the homeowner is responsible and wait for the person injured, typically the plaintiff, to make a claim or file suit against the property owner.  Sometimes, a plaintiff, for a variety of reasons, does not want to sue one organization or another.  Since economic damages are joint and severable, that may be a judgment call a plaintiff is willing to take.  Another reason may be that the plaintiff or the plaintiff’s lawyer has failed to comply with the Government Claims Act.  Then, the defendant may wish to file a Government Claim and then file a cross-complaint for indemnification.

There are few better ways of learning a city, its businesses, and its infrastructure than by walking.  Since we are having such nice weather, particularly for early January, I took a break from my office and walked around the block.  I am on a block which is mostly on the Lugonia grid, but it is punctuated by the turn of the former State Highway 99, now Redlands Boulevard.  To walk around the block,  I walked out of the parking lot of Redlands Executive Suites, which it shares with Bakers Drive-Thru and Arby’s onto the sidewalk along the southern portion of Colton Avenue.  I took the sidewalk past Dynasty Suites, Taco Bell, past an Omnitrans bus shelter, past the Carl’s Jr. on the corner of Tennessee Street and West Colton Avenue.  I took the sidewalk south past the parking lot for Carl’s Jr. on Tennessee, past Michelle’s and Excel Automotive.

Once you pass Excel Automotive walking south on Tennessee, the sidewalk ends.  The pedestrian is faced with a small patch of asphalt and railroad tracks at grade, or to cross the tracks.  To the north of the tracks is a small drainage ditch.   Along the railroad tracks are  a series of what appear to be utility poles.  Most of them are not connected by wires.

I have investigated a variety of incidents and accidents over the year since becoming a lawyer.  That, coupled with being involved with public works contracts,  lobbying for grants from the United States Government, advising local municipal departments, and practicing code enforcement law, and boards, has left me fascinated with infrastructure, public and private.

The railroad lines behind my office are part of the Redlands Industrial Spur.  Having lived in the Inland Empire almost my entire life, save for college and law school, I do not ever recall seeing a train on these particular tracks, though I have seen trains on other portions of the spur, and I am told as recently as five years ago, trains were seen on the spur line.

While figuring out who owns what infrastructure can be difficult, you can find clues by looking at the infrastructure, by using the internet, by using the California Public Records Act, and by using other public information and databases.  One way to find evidence of ownership and control, rather than a definitive answer about ownership and control, is to use the Assessor’s Parcel Maps and to look at the San Bernardino County Tax Collector’s online ownership information.  The Assessor’s Parcel Maps are designed for ad valorem taxation purposes only, but they are commonly-used to help find out the owners of property.  Since the railroad tracks are near my office, I will use my office address to find the right map: 1255 W. Colton Ave, Redlands, California.

That address corresponds to San Bernardino County Assessor’s Parcel Number 0169-411-05.  That corresponds to Assessor’s Map Book 0169, Page 41.  The map shows a parcel with no parcel number (referring to Page 39), and it is labeled “A.T.&S.F. R.R.” for Atchison, Topeka and Santa Fe Railroad, the predecessor to BNSF.   That doesn’t mean that BNSF currently owns or controls the railroad track.

Looking at Assessor’s Map Book 0169, Page 31, we find more information.  This map shows the parcel which is one hundred feet across.  It says “Reserved Rail Freight” and Serv. Esmt.  It shows two parcel numbers, 02, and 04, corresponding to APN 0169-391-02 and APN 0169-391-04.  There is also a little portion south of the railroad designated as 0169-391-03, which we will look up as well.

Looking up 0169-391-02, the Tax Collector says that  the parcel owned by San Bernardino Associated Governments (commonly known as SANBAG), that the recording date is  March 30, 1993, and the document number is 9313704100043.  The tax collector says that the previous owner was “ATCHISON TOPEKA AND SANTA FE RR CO.”  To find out more information, one can obtain that document by going to the County Recorder.  The Tax Collector also gives an abbreviated version of the legal description: PAR NO 10 MAP 804 36 106.  Looking up 0169-391-04, it says that it is an easement,  with a legal description of “MAP 804 36 106 PARCEL NO 10A (RESERVED RAIL FREIGHT SERV ESMT) ***** SBE LAND CHG FOR 94 PG 13 *****” with a document number of  9500000000000,  a recording date of 3/1/1994.  This information would suggest, though does not conclusively prove, that this segment is owned by SANBAG, with an easement owned by BNSF for rail freight purposes.  A search of the internet finds SANBAG’s FY 2011-2012 budget which has this blurb about the Redlands Industrial Spur:

Redlands Passenger Rail
The Redlands Passenger Rail Project is planned to provide service operating between a proposed
San Bernardino Transit Center at Rialto Avenue and E Street in the City of San Bernardino and
the University of Redlands on the former AT&SF Redlands spur acquired by SANBAG in 1993.
A preliminary feasibility study was completed in Fiscal Year 2002/2003. A station area plan
study, completed in January 2007, identified the preferred station locations and recommended
the type of transit-supportive land use that should occur within a ½-mile radius of each station.
A consultant is currently under contract for preparation of environmental documents necessary
for each city to modify their land use around each station location in support of rail service.

What about that little parcel?  Looking up the parcel number it gives the legal description of  ” BARTON RO COM ON S LI NE 1/4 LOT 20 N 89 DEG 21 MIN W 74.43 FT FROM SE COR TH N 89 DEG 21 MIN W 77 FT TH N 27.76 FT TO S LI A T AND S F R/W TH S 70 DEG 44 MIN E 81.56 FT ALG SD R/W LI TO POB EX STATE HGWY .25 AC.”   That’s a small remnant parcel.  It was formerly owned by the “Grant Water Company,” and looking on Google Street View, it appears to be a former well.  The legal description mentions the “State Highway” meaning Redlands Boulevard.

Tomorrow, we will examine the evidence for ownership of the infrastructure along this section of the Redlands Industrial Spur.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2012 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

What is a “dangerous condition of public property?”

By Michael Reiter, Attorney at Law.

A public entity may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability.   Before I was in private practice helping plaintiffs, I received a good education in a variety of dangerous condition of public property cases when I was Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands.

A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is foreseeable that it will be used.”  Government Code § 830(a).  A public entity is liable for injury caused by a dangerous condition of property it owns or controls if the plaintiff establishes that (1) the property was in a dangerous condition at the time of injury; (2) that the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and either (i) a public employee, within the scope of his or her employment, negligent or wrongly committed an act or omission that created the condition or (ii) the entity had actual or constructive notice of the dangerous condition in sufficient time before the injury to take protective measures against the dangerous condition. California Government Code §§ 830, 835.

What are the kinds of scenarios that might involve two public entities, or a mix of public entities and private entities?  The scenarios I have seen as an attorney have included:

1. A city, a water district, and a private land owner, where a sidewalk panel was removed to replace a meter box, and the sidewalk panel was never replaced.  The plaintiff tripped and fell.

2. A city, a school district, and an adjoining land owner, and a nonprofit youth organization, where the plaintiff tripped over a utility cover, wherein the surrounding compacted dirt had eroded over the years, but no sidewalk ever existed.

3. A city, a county, and a private land owner, and a private party, where a motorcyclist died at an intersection jointly controlled by the city and county, when the motorcyclist was struck by the private party’s automobile.

4. A trip and fall that happened only in one city, but the plaintiff sued two cities because it was not clear which entity owned or controlled the sidewalk.

5. An injury to a person who was waiting at a bus stop from a city tree in a city park, but at a bus stop owned and controlled by a joint-powers authority transit system.

6. A flooding case wherein the flood control channel was owned by a county flood control agency, but the culvert and bridge were owned by a city.

California Government Code section 830(c) states “‘Property of a public entity’ and “public property” means real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the entity.”

“Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.”  Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.

Obviously, ownership is a key fact to prove.  Control can be more difficult.  In the case of a jointly controlled intersection, there is typically an agreement between the two public entities. Obtain and examine that agreement (either through discovery or by using the California Public Records Act).  Control can be established by deposing maintenance workers who have personal knowledge of the maintenance work done at the property, and to a limited extent, with written discovery.

In Bonanno v. Central Contra Costa Transit Authority, the California Supreme Court ruled that  “the location of public property, by which users are subjected to hazards on adjacent property, may constitute a dangerous condition” under Government Code sections 830 and 835.  Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 815-816.

Therefore, there are factual scenarios where more than one public entity can be responsible for one injury by pleading and proving a dangerous condition of public property cause of action.  In the flooding scenario noted above, the plaintiff also pled an inverse condemnation cause of action.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

Can two public entities be jointly responsible for the same injury under a dangerous condition of public property theory of liability?

By Michael Reiter, Attorney at Law.

A public entity may only be held liable for a dangerous condition of its property, not for simple negligence or premises liability.   Before I was in private practice helping plaintiffs, I received a good education in a variety of dangerous condition of public property cases when I was Deputy City Attorney for the City of San Bernardino and as Assistant City Attorney for the City of Redlands.

A “dangerous condition” is “a condition of property that creates a substantial (as distinguished from a minor, trivial, or insignificant) risk of injury when such property . . . is used with due care in a manner in which it is foreseeable that it will be used.”  Government Code § 830(a).  A public entity is liable for injury caused by a dangerous condition of property it owns or controls if the plaintiff establishes that (1) the property was in a dangerous condition at the time of injury; (2) that the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury incurred; and either (i) a public employee, within the scope of his or her employment, negligent or wrongly committed an act or omission that created the condition or (ii) the entity had actual or constructive notice of the dangerous condition in sufficient time before the injury to take protective measures against the dangerous condition.  Government Code §§ 830, 835.

What are the kinds of scenarios that might involve two public entities, or a mix of public entities and private entities?  The scenarios I have seen as an attorney have included:

1. A city, a water district, and a private land owner, where a sidewalk panel was removed to replace a meter box, and the sidewalk panel was never replaced.  The plaintiff tripped and fell.

2. A city, a school district, and an adjoining land owner, and a nonprofit youth organization, where the plaintiff tripped over a utility cover, wherein the surrounding compacted dirt had eroded over the years, but no sidewalk ever existed.

3. A city, a county, and a private land owner, and a private party, where a motorcyclist died at an intersection jointly controlled by the city and county, when the motorcyclist was struck by the private party’s automobile.

4. A trip and fall that happened only in one city, but the plaintiff sued two cities because it was not clear which entity owned or controlled the sidewalk.

5. An injury to a person who was waiting at a bus stop from a city tree in a city park, but at a bus stop owned and controlled by a joint-powers authority transit system.

6. A flooding case wherein the flood control channel was owned by a county flood control agency, but the culvert and bridge were owned by a city.

Government Code section 830(c) states “‘Property of a public entity’ and “public property” means real or personal property owned or controlled by the public entity, but do not include easements, encroachments and other property that are located on the property of the public entity but are not owned or controlled by the entity.”

“Where the public entity’s relationship to the dangerous property is not clear, aid may be sought by inquiring whether the particular defendant had control, in the sense of power to prevent, remedy or guard against the dangerous condition; whether his ownership is a naked title or whether it is coupled with control; and whether a private defendant, having a similar relationship to the property, would be responsible for its safe condition.”  Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 833-834.

Obviously, ownership is a key fact to prove.  Control can be more difficult.  In the case of a jointly controlled intersection, there is typically an agreement between the two public entities. Obtain and examine that agreement (either through discovery or by using the California Public Records Act).  Control can be established by deposing maintenance workers who have personal knowledge of the maintenance work done at the property, and to a limited extent, with written discovery.

Also, conditions of adjacent property can make public property hazardous.  In Bonanno v. Central Contra Costa Transit Authority, the California Supreme Court ruled that  “the location of public property, by which users are subjected to hazards on adjacent property, may constitute a dangerous condition” under Government Code sections 830 and 835.  Bonanno v. Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 815-816.

Therefore, there are factual scenarios where more than one public entity can be responsible for one injury by pleading and proving a dangerous condition of public property cause of action.  In the flooding scenario noted above, the plaintiff also pled an inverse condemnation cause of action.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104

      Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

How to Answer Form Interrogatory Number 17.1 on Personal Injury Form Interrogatories

By Michael Reiter, Attorney at Law.

Discovery is an important part of any personal injury case.  Form Interrogatory Section 17.0 is labeled Responses to Request for Admissions.  This is commonly served in a personal injury case in conjunction with a Request for Admissions.  The text of Form Interrogatory Number 17.1 is:

Is your response to each request for admission served with these interrogatories an unqualified admission?  If not, for each response that is not an unqualified admission:

(a) state the number of the request;

(b) state all facts upon which you base your response;

(c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and

(d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing.  Form Interrogatory 17.1 California Judicial Council Form DISC-001 (Revised January 1, 2008), Page 7 of 8.

 

The words in boldface capitals in the interrogatories are defined in Section 4 of Form Interrogatories-General.   ADDRESS is defined as “street address, including the city, state and zip code.”  PERSON means “a natural person, firm, association, organization, partnership, business, trust, limited liability company, corporation, or public entity.”  DOCUMENT means “a writing, as defined in Evidence Code section 250, and includes the original or a copy of handwriting, typewriting, printing, photostats, photographs, electronically stored information, and every other means of recording upon a tangible thing and form of communicating or representation, including letters, words, pictures, sounds, or symbols, or combinations of them.”

How, then, does a plaintiff or defendant answer Form Interrogatory Number 17.1?  Here is an example.   If the Request for Admission, Number 9 is “Please admit that YOU own the property where the PLAINTIFF was injured on the date of the INCIDENT,” and you did not admit the Request for Admission, the response would be

Response to Form Interrogatory Number 17.1:

No.

(a) Request for Admissions, Set One, Request 9;

(b) Defendant did not own the property where the Plaintiff was injured on the date of the incident because Defendant had sold the property to Cr0ss-Defendant City of Rancho Muscupiabe,  on August 21, 2009;

(c) Defendant, 1255 W. Colton Avenue #104, Redlands, California, (909) 708-6055;  Cr0ss-Defendant City of Rancho Muscupiabe, 1200 Hill Drive, Rancho Muscupiabe, CA 92407, (909) 708-6055.

(d) Quitclaim deed, a recorded copy which is in possession of Cross-Defendant  City of Rancho Muscupiabe, 1200 Hill Drive, Rancho Muscupiabe, CA 92407, (909) 708-6055.

 

If each response to the Request for Admission is an unqualified admission, then the answering party must simply respond to Form Interrogatory 17.1 in this way.
Response to Form Interrogatory Number 17.1:

Yes.

This interrogatory is an important tool because it explains why a party has denied a Request for Admissions, and allows the asking party to detail why the party is not admitting to certain facts.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

Address: 1255 W. Colton Ave. Suite 104

Redlands, CA 92374

Telephone: (909) 708-6055

Email: michael@michaelreiterlaw.com

Website: http://michaelreiterlaw.com

Vicarious Liability of an Owner for Permissive Use in California Motor Vehicle Accidents

By Michael Reiter, Attorney at Law.

 

When I was the Assistant City Attorney of Redlands and a Deputy City Attorney in the City of San Bernardino, I handled a fair number of motor vehicle accident cases on behalf of the City and its employees.  These cases included a police officer who allegedly ran a red light, a police officer that allegedly rear-ended a car on a freeway ramp, a police officer that allegedly sideswiped a car in a carpool lane,  an animal control officer who allegedly rear ended a woman, a city employee that allegedly backed up into a man turning into his driveway, a pair of citizen volunteer patrol members who allegedly turned into a woman on a bicycle, and a parks employee who allegedly ran over a man sleeping in the park.  The injuries claimed ranged from soft tissue injuries to major hip injuries.  I also defended cities in dangerous condition of public property cases involving motor vehicles and catastrophic injuries, including the death of a motorcyclist, and another one where the passenger on a motorcycle was injured when the motorcyclist ran a stop sign.

A defense to the owner of a vehicle, where the driver and owner lack an employee-employer or principal-agent relationship, is  Vehicle Code section 17151(a).   Typically, the cases listed above involved a a employer-employee relationship. Vehicle Code section 17151(a) reads:

The liability of an owner, bailee of an owner, or personal representative of a decedent imposed by this chapter and not arising through the relationship of principal and agent or master and servant is limited to the amount of fifteen thousand dollars ($15,000) for the death of or injury to one person in any one accident and, subject to the limit as to one person, is limited to the amount of thirty thousand dollars ($30,000) for the death of or injury to more than one person in any one accident and is limited to the amount of five thousand dollars ($5,000) for damage to property of others in any one accident.

Also not included within this statute is negligent entrustment or negligent maintenance of the vehicle by the owner.  There is no limit on the liability of an owner under common law.

In a very recent California Supreme Court case, the Court held that the “respondeat superior doctrine makes an employer liable, irrespective of fault, for an employee’s tortious conduct in the scope of employment.”  Diaz v. Carcamo (2011) 51 Cal.4th 1148, 126 Cal.Rptr.3d 443, 449.  “If the employee did not drive negligently, and thus is zero percent at fault, then the employer’s share of fault is zero percent. That is true even if the employer entrusted its vehicle to an employee whom it knew, or should have known, to be a habitually careless driver with a history of accidents.”  Id. at 453-454.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law.

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com

 

When is a Government Claim (formerly Tort Claims) required in California?

By Michael Reiter, Attorney at Law

When I became an attorney in December 1998, government claims were referred to as “tort claims”.  That all changed with these words by the California Supreme Court  in late 2007:

We also adopt the practice of referring to the claims statutes as the “Government Claims Act,” to avoid the confusion engendered by the informal short title “Tort Claims Act.”   City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 734.

The reason was the change is that the Act involves things other than torts, including contract actions.  When in doubt, file a timely claim with all the required information.

California Government Code section 900 et seq. governs the claim requirements against California public entities (the State of California and local public entities).  This is an overview of the requirement for a government claim, and is not an exhaustive look at the process. Seek appropriate legal assistance for your particular circumstance.  I will explore some areas in depth at later times.

Certain causes of action do not require a government claim to be presented   The following do not require a government claim to be presented to the public entity as a prerequisite to a civil action.  False Claims Act (qui tam) do not require a Government Claim.  Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1213 (as modified on denial of rehearing).  Federal civil rights actions under the Civil Rights Act do not require a government claim.  Williams v. Horvath (1976) 16 Cal.3d 834, 842.   Government Code section 905 exempts claims under the Revenue and Taxation Code (subsection a); claims related to a “filing of a lien, statement of claim, or stop notice is required under law relating to liens of mechanics, laborers , or charges related thereto” (subsection b); claims  “by public employees for fees, salaries, wages, mileage or other expenses and allowances” (subsection c); workers’ compensation (subsection d); public assistance (subsection e); public retirement or pensions (subsection f); principal or interest on warrants, bonds, notes, or other indebtedness (subsection g); claims related to special assessments as a result of a lien (subsection h); claims by the state or by a state department or by a local public agency or judicial branch entity (though the public entity can require a claim) (subsection i); unemployment insurance (subsection j);  recovery of penalties and forfeitures under Labor Code section 1720 et seq. (subsection k); claims regarding the Pedestrian Mall Law of 1960 (subsection l); claims for the recovery of Civil Code section 340.1 damages regarding childhood sexual abuse regarding conduct occurring on or after January 1, 2009 (subsection m); claims for the recovery of money pursuant to Government Code section 26680 pursuant to Civil Code section 701.820 (subsection n).  Government Code section 905.1 specifically exempts inverse condemnation cases from the presentment requirement of Government Code section 905, except that the entity should process the claim if presented.

A big warning:  local agencies are allowed to adopt their own claims requirements pursuant to Government Code 935 with certain preemption by state law.   For example, the City of San Bernardino’s claim ordinance is found at Chapter 3.16 of the San Bernardino Municipal Code. The City of Highland’s procedures are found at Chapter 3.08 of the Highland Municipal Code.  The City of Riverside’s claim ordinance is found at Chapter 1.05 of the Riverside Municipal Code.  Ontario’s is found at Title 3, Chapter 2 of the Ontario Municipal Code.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Copyright 2011 Michael Reiter, Attorney at Law .

Michael Reiter, Attorney at Law

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374

T: (909) 708-6055

E: michael@michaelreiterlaw.com

W: http://michaelreiterlaw.com