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Tuesday
Mar272012

Injured on Public Property | Suing the Government Poses Challenges

Injury AttorneyPremises Liability Lawyer  

 

by David B. Bobrosky
(818) 907-3254

 

 

In most of the cases we handle, our clients have been injured by the negligence of someone else. The specific cause of action that is alleged and must be proven is generally, simple negligence.

When you’re injured on public property – it is not so simple. A person cannot sue the government for general negligence. Any government claims must be allowed by a specific statute.

Claims against a government entity can be very difficult, and there are many obstacles for people who do not know how to navigate such waters.

The most common claim we bring against government entities are claims for injuries due to a dangerous condition of public property. California Government Code Section 835 describes the elements a Plaintiff must prove when bringing such a claim:

  1. The government entity owns or controls the property at issue;         
  2. The subject property was in a dangerous condition at the time of the accident;       
  3. The dangerous condition created a reasonably foreseeable risk of the kind of injury which occurred; and
  4. The condition was created by a negligent or wrongful act or omission of an employee within the course and scope of employment.

-OR-

The entity had actual or constructive notice of the condition in a reasonable amount of time to have taken preventive measures.

I will not discuss all of the elements in this blog post. I will, however, discuss some of the most important aspects of handling such claims.

 

Determining Property Ownership – Is it Public or Private?

 

The first element can be a trap for the unwary.

If you are injured because of the condition of any property, we must quickly determine if it was owned or controlled by the government, and if so, which entity.

Sometimes it’s easy to determine if you've been injured on public property. For example, a dangerous curve in a roadway – easy to know it involves a public entity. We'll have to determine if that roadway is the responsibility of the State, the City, or the County.

Other situations may involve a piece of land or a business that seems to be private, but is operated by a government entity. Many times there are no signs letting us know who owns or runs a piece of property.

For example, we once represented a client who tripped and fell because of  uneven pavement in the parking lot of a restaurant. It just so happened that the State of California owned and operated the parking lot. If our client had waited to file a claim, the client may have missed the window for compensation by the responsible party (see the timeframes listed below).

 

Suing the Government – A Two-Step Process

 

Getting to a lawyer soon after a serious injury is imperative when a government claim could be involved, because:             

  1. A claim must be filed against the proper government entity within six months of the accident;
  2. The government has 45 days to respond to a claim. If the responsible entity denies the claim (and they almost always do), generally a lawsuit must be filed within 6 months of the written denial of the claim.

There are exceptions to these basic rules, and other time frames that might apply, but these are the general rules that must be followed. Courts are very strict when it comes to enforcing these statutory requirements.

 

The Government Claim - Proving the Dangerous Condition

 

Assuming you follow the proper procedures and have successfully initiated litigation, you must now prove your claim.

California Government Code Section 830(a) defines a “dangerous condition” as:

a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.

One category of dangerous conditions is public property or improvements that are damaged or deteriorated. Examples can include:

  • A sidewalk that has become damaged resulting in uneven or broken pavement;
  • A stop sign that is covered by overhanging trees;
  • A roadway where lane markings have deteriorated, exposing travelers to potential accidents.

Another dangerous condition includes bad design or planning, such as:

  • A dangerous curve that is not easily recognized or navigated by drivers;
  • Turn lanes in areas where turning vehicles and oncoming drivers do not see each other in a sufficient amount of time to allow for safe decisions when turning;
  • Not installing crosswalks where they are obviously needed.

All of these conditions are examples of conditions that can create substantial risk of injuries to reasonably careful users.

Remember though, that government entities have a multitude of immunities and defenses available to them to fight these claims. This is why it is so important to hire an experienced personal injury lawyer if you have a government claim. A lawyer not experienced in handling government claims can easily lose them before they even get to trial.

David B. Bobrosky is an Encino Injury Attorney at our Firm. If you have questions about a personal injury you suffered, contact him via e-mail: dbobrosky@lewitthackman.com.

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Thursday
Mar222012

Franchisee Law - PMPA Protects Gas Station Franchise Owners

 

Business Litigation Attorney EncinoFranchise & Business Litigation Attorney

 

by David Gurnick
818.907.3285

 

British Petroleum or BP, one of the world's largest oil companies, owns the ARCO gas station brand. Recently, BP announced they will sell their southern California oil refinery as well as a number of their ARCO locations here, while allowing other gas station franchise agreements to expire without being renewed.  

Gas FranchiseThis announcement has caused anxiety among numerous franchised ARCO dealers in Southern California. Will many of these gas station franchisees find themselves out of business?   

Oil companies supply fuel to the public through retail gas stations. Many gas stations are operated by independent franchisees. In a typical franchise, an oil company [like  Arco (BP), Exxon, Shell or Chevron] leases the premises to the franchisee, lets the franchisee use the company's brand, and agrees to sell gasoline to the franchisee for resale. Tens of thousands of franchised gas stations serve the public across the USA. These franchisees may be protected under the Petroleum Marketing Practices Act, or PMPA. 

 

PMPA Cuts Both Ways

 

In response to unfair terminations and nonrenewals of franchise agreements, Congress enacted the PMPA in 1978. The PMPA limits the circumstances in which an oil company may terminate a franchise or choose not to renew the franchise relationship at the end of the agreement's term. A franchisor may terminate a franchise or choose not to renew only if the franchisor provides prior written notice and has a good reason, recognized in the Act.

A franchisee can sue in federal court against a franchisor that violates the PMPA's restrictions against termination or nonrenewal. Various remedies are available to a franchisee, including damages, attorney's fees, costs of expert witnesses and equitable relief. A court can grant a preliminary injunction to protect a franchisee from a wrongful termination or nonrenewal. 

Franchisee Gas StationIn the BP situation, dealers may find some solace in the PMPA. Under that federal law, an oil industry franchisor cannot terminate a franchise early, or elect not to renew when its term expires, unless certain conditions are met. One of these conditions is that the Franchisor elects "in good faith and in the normal course of business" to withdraw from marketing fuel through retail outlets in the relevant geographic market area. When such a decision is made, the franchisor must offer to sell, transfer or assign its interest in the premises to the franchisee, or offer the franchisee an opportunity to buy the premises on the same terms as the franchisor is selling to someone else.

The PMPA has other detailed provisions which, if followed, may not prevent BP from completing its plan. But franchised ARCO dealers, and franchisees of any oil company, have rights as well, and may wish to explore those rights before their franchises are terminated, or not renewed.

David Gurnick is a Certified Specialist in Franchise and Distribution Law, as designated by the State Bar of California Board of Legal Specialization. You may reach the franchise attorney by calling 818.907-3285  or by email at dgurnick@lewitthackman.com.

 

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

Thursday
Mar152012

What is Alternative Minimum Tax & Why Are We Paying It?

Trusts & Estate Planning

 

by Kira S. Masteller
818.907.3244

 

In 1969, Congress created the Alternative Minimum Tax (AMT) to ensure that anyone who benefits from certain tax advantages pays at least a minimum amount of tax. The AMT was intended to be a flat tax for the wealthy.

Unfortunately, Congress seems to have missed those that they targeted and aimed instead at many unintended taxpayers who now have to deal with a very complex set of rules that few, even in the tax community, fully understand.

What Does AMT Do?

 

 The AMT provides an alternative set of rules for calculating a minimum tax for the so called wealthy.

In general, the AMT determines a minimum amount of tax that should be required for those taxpayers deemed wealthy; that have a number of defined tax preferences, or loopholes (as some call those deductions that were originally intended to stimulate the economy, that others may not be able to utilize); resulting in specifically politically stratified oriented taxation or penalty for those that invest in America.

Should the regular income tax fall below this minimum there is a complex recalculation based upon disallowing those “loopholes.” Some of these include:

  • Home Mortgage Interest,
  • Charitable Donations, 
  • Investment Expenses,
  • Passive Income or Losses,

and numerous other “socially unacceptable” deductions resulting in an Alternative Minimum Tax.

Tax laws provide specific tax benefits for certain kinds of income and allow special deductions and credits for certain expenses sometimes resulting in no or little tax if a taxpayer utilized those advantages by investing in the American economy.

Congress has never truly adjusted the AMT for inflation, and because of this, .a growing number of middle-income taxpayers are discovering they are being ensnared by the AMT system. 

The AMT exemption amounts allowed as total deductions in lieu of your total itemized deductions, are set by Congress for each filing status.

If your total itemized deductions are in excess of the amounts listed below, you lose all of any exemptions above these amounts set by your favorite group in Washington..

For tax year 2011, Congress raised the AMT exemption amounts to the following levels:

  • $74,450 for a married couple filing a joint return and qualifying widows and widowers;
  • $48,450 for singles and heads of household;
  • $37,225 for a married person filing separately.

The minimum AMT exemption amount for a child whose unearned income is taxed at the parents' tax rate has increased to $6,800 for 2011.

These amounts are in addition to the other complex rules that relate to the percentage loss of medical deductions, what is termed as excess mortgage interest deductions, and the limitations on business expenses. Yes, it’s complex.

Kira S. Masteller is a Trust and Estate Planning Attorney who works with individuals and their businesses to maximize savings and profits. You may reach her by calling 818.990.2120.

 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

Wednesday
Mar142012

Big Rig Truck, Motorcycle, Construction Zone - Wrongful Death Case

Wrongful Death Attorney 

 

by David B. Bobrosky
(818) 907-3254

 

In our practice we deal with tragic accidents all too often.  While many people are significantly injured or sometimes killed in auto v. auto accidents, the most violent injuries occur in motorcycle accidents, big rig trucking accidents, and on construction sites.  And when all three are involved– it’s almost always deadly.

We were recently involved in such a case.  We represented a wonderful family who tragically lost their son when his motorcycle collided with a big rig truck.  The family was extremely close, and the loss was devastating for all of them.  

The accident occurred when the truck turned left out of a parking lot and entered the path of travel of our clients’ son.  He did not have time to react and his motorcycle collided with the truck, killing him.  The devastation was compounded by the fact that the investigating officer found our clients’ son – the motorcyclist – at fault for the accident.

The family came to us seeking answers.  They couldn’t understand how the accident could be their son’s fault when he was just proceeding straight when this truck blocked his right of away causing the accident. In reviewing the police report, the truck was turning left out of a parking lot across north bound traffic to head south.  The officer concluded that the trucker had entered the roadway and had essentially taken over the right of way from north bound traffic before finishing the turn to head south bound.

We immediately went to the scene of the accident to investigate, and noticed some very important factors: 

Van Nuys Wrongful Death1. The truck was not turning out of a typical driveway, it was turning out from a construction site.  This is very important because contractors and sub-contractors have strict regulations that need to be followed regarding safety.  Once in litigation, discovery showed that the truck driver was hauling material off of the job site. 

2.  Also, the driveway the trucker was turning out of was at the end of a sweeping curve.  When we put ourselves in his position, it was very difficult to see any traffic coming from his left to ever know if it was safe to turn.

Construction Site Safety

 

Safety is paramount to each and every construction project.  These safety requirements start with the State of California Construction Safety Orders established by CAL-OSHA.  These Orders establish minimum safety standards whenever employment exists in connection with the construction of any fixed structure.

The general contractor on any site is responsible for the overall safety of the jobsite and work environment.  Each contractor and worker involved in a construction project relies on the general contractor to establish the environment, framework and protocols within which they will work. 

Regardless of the general contractor’s responsibilities, however, each supporting contractor (e.g., a grading contractor) and equipment operator (e.g., the truck driver) is responsible for the safety of its own operations and equipment.  It is the responsibility of the general contractor to make sure each such supporting contractor and equipment operator is carrying out duties safely and complying with all safety protocols, rules and regulations.

The most glaring safety violations in relation to this tragic accident were the lack of signs and flaggers to notify and control traffic along the roadway adjacent to the construction site.  The use of warning signs and flaggers were required by CAL-OSHA Sections 1598 and 1599 when hazards exist because of traffic or haulage conditions at work sites that encroach upon public streets or highways.  Other standards required or recommended the use of flaggers as well, including: 

  • The Work Area Traffic Control Handbook (WATCH Manual)
  • Manual on Uniform Traffic Control Devices (MUTCD)
  • Manual of Accident Prevention for Construction (MAPC)

The use of flaggers and flagging has become a highly recognizable and important safety component of construction activity.  Because construction activity is temporary in nature, it calls for unexpected and unusual traffic to be moving on and off of the site. 

The large size of the vehicles that tend to be moving on and off of the site also added to the need for flaggers, as the vehicles require extra time to move across the roadway.  The need for flaggers in this situation was compounded by the large sweeping curve that made it more difficult for the trucker to see oncoming traffic, and difficult for our client's son and other drivers to see the truck exiting the parking lot.

Notwithstanding all of the regulations, standards, and industry practice related to signage and flaggers, the Defendants (including the truck driver and involved contractors), failed to provide any protection for motorists.  Once all of this information came out through litigation, the Defendants settled the case prior to a trial.

The settlement was an important step for the family on their road to recovering from this tragedy.  As we see time and again, such simple and obvious safety standards, if followed, would have prevented a tragic death.

David B. Bobrosky is a Wrongful Death Attorney in our Personal Injury Practice Group. Contact him via e-mail: dbobrosky@lewitthackman.com. 

 
Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.

 

 

 

Thursday
Mar082012

Supervised Visitation – Monitored Visits Keep Children Comfortable and Safe

Encino Tarzana Divorce LawyerChild Custody and Support Attorney Los Angeles

by Vanessa Soto Nellis
818.907.3274

San Fernando Valley Custody Lawyer Los Angeles

 

Not all supervised visitation orders are made by a family law court because of the potential for violence or abuse.

Sometimes a court will order a monitored visit by a third party simply to keep a child comfortable with a parent – especially if the parent had problems parenting (e.g., discussed inappropriate topics, did not properly supervise the child, etc.), has been absent for a period of time, or to introduce a parent to a child when no previous relationship existed.

Of course, there are the more serious situations for which supervised visits are ordered: There may be a threat of abduction in contentious divorces where child custody is in dispute, a parent has a drug or alcohol problem, there is a history of abuse or neglect, or one of the parties suffers mental illness.

No matter what the reason, keep in mind that supervised visits are ordered with your child's best interests in mind, and that the providers of supervised visits should be neutral parties.

 

Finding a Supervised Visit Provider

 

You have three options when choosing someone to supervise visits with your child. You will need to decide if the monitors will be professionals, non-professionals, or therapeutic.

Also, they will need to be at least 21 years old, with no DUI convictions in the last five years, not on probation in the last 10 years, and have no convictions for crimes against another person. They will also need proof of auto insurance so they can transport the child to and from supervised visitations, if necessary. There are agencies that will provide monitors as well as a location for visits.

1. Professional Providers – Your Child Custody Lawyer will generally have a list of referrals for you. Here in California, these providers will comply with standard 5.20 of the California Standards of Judicial Administration. They and their staff will have background clearances.  

Many will also be registered with TrustLine (1-800-822-8490) – if you can get the provider's CA driver's license number and name, TrustLine will be able to tell you if there are any criminal convictions or reports of abuse by that provider in California. 

2. Non-Professional Providers – Some parents feel more comfortable asking a family member or friend to act as a supervised visitation provider. However, there are certain conditions. The non-professional supervised visit provider must be: 

a.)   A neutral party, impartial to either parent (e.g., a mutual friend), and able to avoid conflicts of interest 

b.)  Able to speak the same language as the visiting parent and the child 

c.)   Able to follow court orders, including compliance with standard 5.20 of the California Standards of Judicial Administration 

d.)  Able to make reasonable efforts to assure safety and welfare of the children and adults during the visitation 

The non-professional monitors may need to testify in court, if a custody dispute arises.

3. Therapeutic Providers – These supervised visitation monitors are mental health professionals. Monitored visits will occur in a clinical setting.

If you have more than one child, the number of monitors required depends on a variety of factors, such as their ages and levels of risk to the welfare of the children.

If you need more information about implementing supervised visits while processing and finalizing your divorce proceedings, you can reach me at 818.990.2120.

 

Vanessa Soto Nellis is a Los Angeles Divorce and Child Custody Lawyer in our Family Law Practice Group.

 

Disclaimer:
This Blog/Web Site is made available by the lawyer or law firm publisher for educational purposes only, to provide general information and a general understanding of the law, not to provide specific legal advice. By using this blog site you understand there is no attorney client relationship between you and the Blog/Web Site publisher. The Blog/Web Site should not be used as a substitute for obtaining legal advice from a licensed professional attorney in your state.
LEWITT HACKMAN | 16633 Ventura Boulevard, Eleventh Floor, Encino, California 91436-1865 | 818.990.2120