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Apr112017

No Excuses: Preventing Construction Site Accidents and Remembering the Dead

Injury AttorneyWrongful Death Attorney

by Thomas Cecil

(818) 907-3292

 

With Spring comes not only warmer weather, a change in time, and the start of baseball, but a return of construction projects as builders begin another season of home and commercial building. 

  Construction Accident Lawyer
In its 2017 Dodge Construction Outlook, Dodge Data & Analytics predicts U. S. construction starts for 2017 will grow five percent to $713 billion after gains of 11 percent and 1 percent in 2015 and 2016 respectively. “Single family housing will rise 12 percent in dollars, corresponding to a 9 percent increase in units to 795,000 (Dodge basis). Commercial building will increase six percent on top of the 12 percent gain estimated for 2016.” 

According to the U. S. Census bureau, February, 2017 housing starts for privately-owned housing were at a seasonally adjusted annual rate of 1,288,000, a three percent rise over February, 2016 period. In California, according to the Bureau of Labor Statistics (BLS), the construction industry employed 783,000 in February, 2017. 

This increase in construction work unfortunately comes with a steep price: construction-related injuries and death. According to the latest BLS data, there were 4,836 fatal workplace injuries, or 13 per day, in 2015. Private construction suffered the highest number with 937 fatalities. 

“The leading causes of private sector worker deaths (excluding highway collisions) in the construction industry were falls [364 out of 937], followed by struck by object [90], electrocution [81], and caught-in/between [67].”

Preventing these four causes of death would save 602 construction workers’ lives annually. 

Memorial Day for Construction & Other Workers

Slip-Fall AttorneyFirst recognized in the United States in 1989 to honor workers who died or suffered from exposure to hazards at work, Workers’ Memorial Day is observed annually on April 28. The motto for this occasion is “Remember the dead – Fight for the living.” And as noted on the CDC website, “Occupational injuries and illnesses have broad social and economic impacts on workers and their families, on employers, and on society as a whole.” 

The economic burden of fatal worker injuries alone has been estimated to be $6 Billion. Workers’ Memorial Day is supported by trade unions, including the AFL-CIO, United Auto Workers, California Labor Federation and Occupational Safety and Health Administration (OSHA). 

To raise awareness to safety and reduce construction site injuries and deaths, both private and government sectors hold annual outreach safety programs. The 2017 Safety Week is scheduled for May 1-5, and is intended to encourage construction companies to host Safety Week “as a way to refocus and reenergize our commitment to reducing injuries on jobsites.”    

Fatal Falls

On May 8, 2017, OSHA kicks off its 4th annual National Fall Prevention Stand-Down program to prevent fatal falls in construction. As noted, construction site deaths from falls are the leading cause of construction site fatalities, yet they are largely preventable. OSHA’s Fall Prevention website provides a wealth of information including for ladders, scaffolds, aerial lifts and roofs, to help employers and workers prevent worksite fall hazards.    

OSHA emphasizes, “[e]mployers must train workers in hazard recognition and in the care and safe use ladders, scaffolds, fall protection systems, and other equipment they'll be using on the job.” 

A 2017 study in Accident Analysis and Prevention highlights the entirely preventable fall dangers construction workers face – 42 percent of construction fatalities were from falls with the highest incidence of fall fatalities among those age 25-44 years old. Unsurprisingly, roofers had the highest incidence of fatalities from falls at 78 percent and three out of four fatalities from falls were concentrated in the roofing, siding and sheet metal industries. 

Highlighting the need for on the job safety training, workers on the job less than one week were at a higher risk of dying from a fall than longer term employees. Half of all deaths from falls in construction occurred with employers with 20 or fewer employees. 

Despite OSHA requirements for guardrails and toeboards (29 CFR 1926.502) and personal fall arrest systems, (29 CFR 1926.501(b)(4)(i)), the study found that 70 percent of those killed from falls in residential construction, roofing,  siding and sheet metal industries had no access to a personal fall arrest system, and guardrails were not installed on most of the fall incident sites studied.   

Construction Injury Liability

Dangerous Property Lawyer
A motto of the 2017 National Safety Stand-Down campaign is “Safety Pays -Falls Cost”. Failure to provide fall protection which leads to injury or death is inexcusable. Whether liability is imposed through workers compensation law or the general law of negligence, an injured person is entitled to be made whole through just monetary compensation, including recovery of medical expenses, past and future earnings, and under negligence law, the human damages of pain, suffering, loss of enjoyment of life and dignity. 

 

Thomas Cecil is a Shareholder in our Personal Injury 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.

Wednesday
Apr052017

"Look Mom No Hands!" But Lots of Rules for AI Cars in California

Personal InjuryPersonal Injury Attorney

 

by Andrew L. Shapiro

(818) 907-3230

 

You may have heard the news: An Uber Technologies Inc. autonomous vehicle was involved in an accident in Arizona. A human driver in a Honda CRV turning left at a yellow light hit the self-driving Volvo as it was crossing the intersection. Though the Volvo flipped onto its side after hitting a pole, no serious injuries were reported.

Accident investigators found the human driver to be at fault. The artificially intelligent (AI) vehicle was traveling just under the speed limit, and the employee “behind the wheel” stated he saw the Honda driver but did not have time to react.

Self-Driving Cars in California

An accident eyewitness thought whoever was driving the Volvo was “trying to beat the light” and hit the gas hard, which initially sounds as though the accident could have been avoided.

But an Uber spokesperson said their self-driving vehicles are programmed to maintain current speeds when approaching yellow lights, and to pass through if there is enough time to cross the intersection. If true, this only goes to show how eyewitnesses can sometimes perceive situations incorrectly. It also begs the question: 

As more AI vehicles take over the road, will human drivers have to adjust habits accordingly?

Here in Los Angeles, we’ve all seen two, three or even four cars turning left through an intersection after a light has changed to red – simply because those drivers had no opportunity to do so when their traffic lights were green or yellow. But if self-driving cars are programmed to go through without allowing the humans the belated though illegal opportunity to turn, we could see an increase in traffic accidents, injuries and fatalities for a while.

Who will be held liable? The drivers that force their way through the intersection when they don’t have the legal right of way? Or must other drivers yield the right of way to vehicles already in the intersection? We are all obligated to follow the letter of the law, even if it seems impractical.

The Silicon Valley State vs. the Motor City State

It’s interesting to note that Arizona is one of the states that impose few restrictions on companies wanting to road test their AI vehicles. Michigan’s robocar rules are also minimal – apparently, anyone (presumably with a valid driver’s license) who wants to drive an AI vehicle in that state may do so. Other states have followed suit to encourage driverless cars, on the theory they’re safer than human-operated vehicles.

California, home to Silicon Valley and many tech giants with skin in the AI game, is surprisingly a bit stricter. 

This state requires Autonomous Vehicle Testing Permits from the Occupational Licensing Branch (form OL 311), per Vehicle Code §38750. Autonomous testers must also submit either a Manufacturer Surety Bond (OL 317), or a Certificate of Self Insurance (OL 319), and certain company structures require submission of Articles of Incorporation, Corporate Minutes, and identities of key executives. Going to Michigan for testing certainly sounds a lot easier, if you can stand the snow.

California Road Trippin’

Autonomous Vehicle Accident LiabilityAbout 30 autonomous vehicle tech companies have applied to the CA DMV to test their autonomous vehicles on our streets and highways since 2014. Uber is one of the companies that initially refused to comply with the licensing requirements, and shipped their AI vehicles to more robot-friendly states. The Financial Times reports the ride-hail company is now licensed to drive driverless in the Golden State too.

According to the DMV, about 25 autonomous vehicle accident reports have been filed since the state first began permitting AI vehicle testing. Most of these accidents seem to be caused by human error – mostly humans driving non-autonomous vehicles.

When you look at the individual reports, you’ll see that many of them involve vehicles using Google technology – but upon reading the reports you’ll notice that most involve rear-end collisions where the AI vehicle was the one hit from behind.  

Self-Driving Accident Liability

As we saw above, most of the AI accidents in California were caused by humans, not technology. And it’s unclear at this point, should anyone suffer injuries or a fatality in these accidents who would be to blame. Clients engaging injury attorneys may find themselves going after the vehicle manufacturer, the software programmer as well as the vehicle’s owner.

And of course, passengers in autonomous vehicles who suffer injuries due to the error of human drivers, will have access to traditional remedies – going after the other driver and his/her insurance company.

 

Andrew L. Shapiro is the Chair of our Personal Injury 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.

Wednesday
Mar292017

Food Fight: Two Sides to Every Chicken Filler Story

Craft Beer LawyerChair, Franchise & Distribution Practice Group

 

by Barry Kurtz
818.907.3006

 

The Canadian Broadcasting Corporation (CBC) recently aired a segment reporting that real chicken content in Subway sandwiches amounted to a lot less than what the average consumer would expect. The network commissioned DNA testing through Trent University of chicken-based menu items from six restaurant chains.

The results of the testing are depicted here (Trent University says ratios of actual chicken to plant fillers are "rough estimates"):

Chicken Filler Fiasco

Remaining ingredients in Subway’s chicken items turned out to be mostly plant-based or soy fillers, according to a researcher at Trent. But the CBC report, called “The Ultimate Chicken Challenge” also contended there were many other ingredients. According to the segment, Subway initially didn't respond regarding Trent's test results other than to say the chain would check with suppliers regarding quality standards.

The network then sought follow-up testing from the University of Guelph's Metabolic Test Kitchen. A dietitian explained the ingredients found by this lab were varieties of starches, salts and sugars. Guelph's processed meat specialist says all ingredients found are safe and approved by the Canadian government. 

Subway asked for a full retraction from the broadcaster. A restaurant spokesman stated:

The accusations made by CBC Marketplace about the content of our chicken are absolutely false and misleading. Our chicken is 100 percent white meat with seasonings, marinated and delivered to our stores as a finished, cooked product.

The franchisor notified CBC of its intent to sue, and reports say the sandwich chain will demand $210 Million in damages. The network says it has not yet been served.

So what does this mean for restaurateurs and other franchises facing similar situations? What are Subway's chances of winning?

Franchise Defamation Suits

Restaurant and other franchise defamation lawsuits are not uncommon, particularly in the world of online reviews. Yelp! for example, has been sued numerous times because of user-generated negative ratings and comments, though typically, consumer-aggregated review sites are protected from legal action by free speech rights.

California even has a Yelp Law – Assembly Bill 2365 was signed by the governor in 2014 to protect consumers stating opinions about a business. Establishments attempting to thwart negative reviewers by putting certain clauses waiving a customer's right to comment publicly in their contracts may find themselves fined when threatening to enforce those clauses.

Then there's this case from the Supreme Court of Nevada in which restaurant owners sued the Reno Gazette-Journal for a negative review. A freelance journalist visited the restaurant and made several defamatory statements, including:

1.  I scooped out guacamole with my fork and dug in.  One taste told me what I had feared:  this pale green stuff was definitely not the real deal.

2.  At this point my spouse pointed out what I was beginning to realize: “All this came out of some sort of package.”

3.  The cost cutting measure applied to the ornamentation had spilled into the kitchen.  The can of name-brand beans we spy while paying our check confirms this.

One of the questions considered here by the court revolved around the nature of protected statements of opinion in published food reviews, and concluded that:

"Defamation is a publication of a false statement of fact. Statements of opinion cannot be defamatory because 'there is no such thing as a false idea'. . . "

The Supreme Court of Nevada found that reasonable persons would conclude the journalist's statements regarding freshness of the food were merely the writer's opinions. It found the same regarding the canned beans – the restaurant owners admitted they kept canned beans on the premises in case of supply emergencies – therefore the writer's statement was substantially true.

Subway's Chicken Kerfuffle: "Let It Go"

Negative Restaurant Reviews DefamationGenerally speaking, a franchise system or individual restaurant doesn't have much in the way of legal recourse when bringing defamation lawsuits. Defendants will almost always claim they stated opinion and assert first amendment rights.

In this case, CBC Marketplace relied on lab tests to make their claims, which most would consider "truth".

The best option for this franchise was already taken: that of asking the network for a retraction. Failing that, the chain may want to consider commissioning other labs with different testing methods to analyze their menu ingredients. Should Subway find more positive data from other labs, they could counter the bad publicity by publicizing these better results.

Or, they can find different suppliers.

 

Barry Kurtz is the Chair of our Franchise & Distribution 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.

Wednesday
Mar222017

Whacky Employment Claims: Who's Whackier? Management or the Employee?

Lawyer for EmployerEmployment Defense

by Nicole Kamm

818.907.3235

 

 

As employment defense attorneys, we see many strange situations arise in the workplace.

The question is, how prepared are you as an employer to handle the wackiness that may potentially arise when your employees make bizarre requests, do odd things, or intentionally violate company rules? And what if those oddball employees happen to be your managers responding to perfectly legitimate claims…?

It's time to illustrate with another Whacky Employee Claims blog. We hope you will find the following employment situations educational, if not entertaining.

 

#5:  Milking Punctuation Errors for All They’re Worth

Seventy-five milk truck drivers in Maine may be getting a $10 million pay day. Three of those drivers filed a class action lawsuit in 2014, claiming Oakhurst Dairy failed to pay them four years of overtime wages.

The problem arose not from a miswritten company policy or employment agreement, but from a state law (known as Exemption F) identifying which employees were exempt from overtime:

“The canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of . . .”

One more comma after “packing for shipment” would have distinguished packing and distributing as separate activities. But as the law is written without the serial or “Oxford comma” as it is sometimes known, the Plaintiffs were able to argue their duties fell outside Maine’s exemption law and they were entitled to overtime pay.

A trial court focused on the spirit of the law, and awarded partial summary judgment to the employer. But an Appellate Court disagreed, stating:

Given that the delivery drivers contend that they engage in neither packing for shipment nor packing for distribution, the District Court erred in granting Oakhurst summary judgment as to the meaning of Exemption F. If the drivers engage only in distribution and not in any of the stand-alone activities that Exemption F covers . . . the drivers fall outside of Exemption F’s scope and thus within the protection of the Maine overtime law.

Employer Tip: You don’t have much say in how state and federal laws are written, but when something seems unclear or ambiguous, consult counsel. Additionally, be ultra-careful in how your company policies and employment agreements are written and stay apprised of frequent changes in employment laws. 

 

#4: Simply Not Suited

Jessica Zelinske was an ad accountant at Charter Communications in Minnesota. She was also very attractive, and when she won a modeling gig to pose for Playboy in a 2011 "Hot Housewives" issue, Zelinske contends she got the “o.k.” from her boss.

Zelinske alleged her supervisor assured her she would not be fired if she posed nude, but once the magazine hit sales racks, she received a “Corrective Action Report” notifying her of her immediate termination. The company informed her: "You have violated Charter's professional conduct policy by making the personal choice to pose nude in a well-known publication."

Zelinske sought $150,000 for emotional distress, compensatory damages and legal expenses.

Employer Tip: Management should be familiar with the implications of all company policies to avoid making promises to employees they can't keep. 

 

#3: The Importance of Being Earnest (in Record-Keeping)

John Sederquist and Brenda White sued employer Steven Miller for unpaid overtime. This bothered Miller immensely because a.) He was pretty sure he paid all of his workers all monies owed on time, and b.) He couldn’t remember ever hiring White. So he did some digging.

Some of his other employees knew White, but no one ever remembered hiring her or actually working with her. But she did appear on his payroll for several months a few years before she jointly filed the lawsuit. For those several months, she was paid over $21,000 for work she never did. Suing for unpaid overtime was just salt in the wage and hour wound.

As it turned out, White and Sederquist were romantically involved. At the time of White’s supposed employment, a coordinator who is currently serving 20 years’ probation for thievery was handling Miller’s payroll. Miller decided to litigate, White cracked under pressure during deposition, and both sides dropped the lawsuit.

Employer Tip: If possible, take steps to enforce some checks and balances when it comes to handling payroll. While litigation can be costly, pursuing a case all the way is sometimes the way to go. 

 

#2: "I Dreamed a Dream" (of not being harassed for my weight)

Laura Ziv filed a $6 million lawsuit against her boss and perfumer employer, alleging verbal assaults regarding her looks, and in particular, her weight. Ziv claims her supervisor compared her to Britain's Got Talent star Susan Boyle, and sometimes called her "Fatty" in front of coworkers. 

Additionally, Ziv claims her supervisor wanted her to develop a competing perfume brand with him, while on company time. When she refused a second time, her supervisor removed her from the company's biggest account and took away a promised bonus. Ziv took a medical leave for high blood pressure and was threatened with termination. She claimed she suffered a brain hemorrhage due to stress.

Employer Tip: Comments regarding an employee’s weight or appearance are generally inappropriate, and could potentially lead to hostile work environment claims. Ensure entire staff knows they may report such incidents to people other than their direct supervisors, and that inappropriate remarks will not be tolerated. 

 

#1: It's a Tough Sell

Think you've heard the last of the Wells Fargo fake accounts scandal? Think again. A class action lawsuit by former employees alleges Wells Fargo fired them for ethical behavior – i.e., for refusing to meet sales quotas by opening bogus additional accounts for bank customers.

Alexander Polonsky and Brian Zaghi represent a class of Wells Fargo current and former employees over the past ten years, who may have been terminated, demoted, or retaliated against for not meeting their sales quotas. They allege employees are pressured into coercing family members and friends to open accounts to meet quotas, and were required to work "beyond a typical work schedule" without compensation – or they were threatened with demotion and termination. Plaintiffs seek $2.6 billion, "and possibly more."

Employer Tip: It is important to “walk the walk.” Comply with the law, and don't encourage or incentivize management or employees to act in violation of the law.

 

Nicole Kamm is a Shareholder in our Employment 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.

 

Friday
Mar102017

Initiating Unlawful Detainer Actions: Perfection Not Required

Business LitigationReal Estate Litigation Attorney

by Nicholas Kanter
818-907-3289

 

In November 2016 the California Supreme Court ordered that a decision from the appellate division of the San Diego Superior Court in U.S. Financial, L.P. v. Michael McLitus (“McLitus”) be published.   

McLitus held that an owner that acquires a property at a non-judicial foreclosure sale is required to perfect title before serving a Three Day Notice to Quit, the first step in initiating an unlawful detainer action under Code of Civil Procedure §1161a. The court held if the Notice to Quit was served before title was perfected, the notice would be defective and could not support an unlawful detainer action.

Commercial Tenant Eviction

Based on the decision in McLitus, the new owner of a property purchased at foreclosure would have to wait to receive the Trustee’s Deed Upon Sale from the foreclosure trustee, and then until the Trustee’s Deed is recorded by the county recorder, before serving a Three Day Notice to Quit. Thus, McLitus had the potential effect of delaying a new owner from obtaining possession to an occupied property.

McLitus Decision Short-Lived

Four months after the McLitus decision was ordered published, the Second Appellate District of the Court of Appeal issued an opinion squarely rejecting the McLitus holding.   

In Dr. Leevil, LLC v. Westlake Health Care Center (“Westlake”), Westlake Village Property, which owned Westlake Health Care Center (WHCC), defaulted on a loan and filed for bankruptcy. The bank sold the loan to Leevil who instituted a non-judicial foreclosure, and subsequently purchased the health care center at a trustee’s sale. Leevil then served a Notice to Quit on WHCC. When WHCC refused to vacate the property, Leevil filed an unlawful detainer action under §1161a. Leevil ultimately obtained possession to the property.

On appeal, WHCC relied on the McLitus decision to argue the Notice to Quit was invalid because Leevil did not perfect title before serving the Notice. 

The Court of Appeal rejected WHCC’s argument and affirmed the trial court’s decision. The Court found that §1161a does not require that title be perfected prior to serving a Notice to Quit. Rather, this Section only requires that title be perfected before a party may be removed from the property following a foreclosure sale.

Code Civ. Proc. Section 1161a states, in pertinent part:

a person who holds over and continues in possession of . . . real property after a three-day written notice to quit the property has been served . . . may be removed therefrom . . . [w]here the property has been sold in accordance with [s]ection 2924 of the Civil Code . . . and the title under the sale has been duly perfected.

Nothing in Section 1161a requires that title be perfected before a Three Day Notice to Quit is served.  Further, the Court of Appeal held that “[n]one of the cases cited in McLitus support the requirement that title be perfected before service of the notice to quit.”

Future of Unlawful Detainer Suits

Because the Westlake decision is binding on lower courts, and decisions from the Appellate Division of the Superior Court are not, trial courts should be guided by Westlake.  Accordingly, as it stands now, purchasers at foreclosure do not have to wait until title is perfected before serving a Three Day Notice to Quit.  

Nicholas Kanter is a Real Estate and Business Litigation attorney. 

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.

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