Homeowner Liability – To warn or not to warn…

Home Possessor’s Liability for Injuries on His Land: California’s Exceptional Rules!

            You’re having a big party for 4th of July, you spent all day cooking and cleaning in preparation for your guests and everyone is having a wonderful time until. Mary slips over the snag in the carpet you meant to get fixed the following week.  Mary breaks her arm and sues you for all of her medical expenses including pain and suffering.  What now?!?

            Beyond bringing Mary flowers at the ER, you need to start thinking about who’s at fault. California generally enjoys specific and unique laws as compared to other states, and laws regarding home possessor’s liability for injuries on their land are no exception.  Most states distinguish the type of guest the injured party is and establish the duty of care accordingly.  For example, in most states, land possessors owe a higher duty of care to people who come onto their land for the purpose of business dealings (legally defined as invitees) as compared to trespassers who enter the home without permission of the land possessor.  California, however, has become part of a minority of states who do not to follow common-law principles.

            In accordance with a California Supreme Court case, Rowland v. Christian[1], California has eliminated all distinctions between types of guests and instead established a blanket standard.  The Court in Rowland determined that the appropriate test for land possessor’s liability is pursuant to California Civil Code Section 1714[2].  This section bases liability on whether the landowner acted reasonably with regard to care of the property.  The Court established several elements that juries may consider when establishing liability.  Some of these considerations are: whether or not the landowner could foresee the harm (could you foresee that someone would slip over the snag in the carpet?); moral blame of land possessor’s conduct (was it morally wrong for you to not fix the carpet before having so many people over?); extent of burden to the land possessor (how burdensome would it be for you to pay Mary’s medical bills?) and so on.  At first glance, these standards don’t seem too unreasonable.  It seems that a logical jury could come up with a fair and responsible verdict in accordance with these elements.  But, there’s a catch: the deletion of distinctions means you may even be liable for trespassers who come onto your land and harm themselves!  The only exception, in accordance with California Civil Code Section 846[3] is if a trespasser enters another’s property for recreational purposes (such as hiking, hunting, camping, sightseeing etc.), and even the exception has loopholes.              Many critics of the California law argue that the only effect of the transformation from the common-law standard is as an invitation to trespassers and/or intruders into private property without deterrence. However, the courts that have adopted this standard believe that while it may over-deter in some cases, it is an effective way to encourage land possessors to ensure their property is free from any known dangers. 

            So how do you avoid being liable for other people’s injuries? No, you don’t have to ban all people from coming over.  If you are having a party at your home, remember to warn all of your guests of any dangerous condition that may potentially cause an injury.  These include anything where anyone can trip, any slippery conditions or lose knobs that may potentially fall off, etc.  Get creative – better to over-warn than under-warn!  Additionally, regularly inspect your property for anything that could potentially cause liability for trespassers.  If the danger is unknown you may be penalized for not discovering the danger, so be thorough!  If by chance you are in a situation where a trespasser is injured on your property, proof of regular inspections may work to your advantage and take away from any moral blame on your end.  Lastly, purchase a good home insurance liability plan so that in case you are found at fault, you won’t be forced to pay out of pocket expenses.

            As it turns out, the incredibly high cost of living is not the only penalty for the universally envied weather and location California enjoys.

The guest author of this blog, Emilia Arutunian, is a second year law student at University of San Diego, School of Law.  She is passionate about helping people understand the law so that they will have an easier time following it. Want to learn more? Become a guest blogger? Contact BONNICI LAW GROUP today!

 

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Bike riders drive me crazy!

Bicyclists – where do they belong?

While on vacation in Germany with my wife, I had the opportunity to have some time to myself while we were visiting friends. She was out wine tasting, and I stayed in to get some work done and relax. I found myself at a local park a few blocks from our friends’ apartment. After noticing the beautiful European streets, it was apparent that parking was a problem. Cars driving on century-old roads were forced to park either partly, or at times completely on the sidewalk, and very few Germans in the town had their own personal garage or driveway for vehicle storage.

This necessitated the large population of people using bicycles for local transportation (not to mention the nearly $8 per gallon prices for gasoline…). While walking through the park, I observed people riding on the streets, sidewalks and walking paths. My friends told me that it is great having people ride their bikes to keep the neighborhood “greener” and also help the congested parking situation, but they were frustrated with how they perceived the cyclist’s ownership of the road mentality.

While I won’t attempt to try and interpret German law (or anything German, really), California’s Vehicle Code sections 21202 deal with these issues squarely. Unbeknownst to many motorists, cyclists have many of the same rights and requirements as do motorists. To start, they are entitled use of the entire traffic lane if there is no clearly marked “bike lane.” This right entitlement, however, also comes with the requirement of abiding by the same laws as vehicles. Cyclists must signal turns and stops with the appropriate hand signals, must follow speed limits (if applicable), street directions and traffic controls (stop signs, traffic signals and others). 

While minors are required to wear a helmet while riding their bike, it is only suggested for adults. No matter the rider’s age, however, bicyclists are generally not allowed to ride on sidewalks as a safety precaution to pedestrians. (One of my personal pet peeves is when an inexperienced cyclist rides on the sidewalk and you have to do some sort of amateur ballet move to avoid being struck). Some cities have begun hanging signs advising riders that they cannot ride on the sidewalk, and enforce the violation through fines.

Whether you’re attempting to break Lance Armstrong’s Tour de France records (valid or not), or riding to work to save on parking, it’s best to know the rules and stay safe. Riding bicycles is a great way to explore our great city, get exercise and also save money and help reduce pollution.

As my German friends I stayed with would say: Nicht auf dem Bürgersteig parken, mit dem Fahrrad fahren! (“Don’t park on the sidewalk, ride a bike!”)

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Crosswalk with no stop sign or stop light. What do I do?

Do I have to stop at an uncontrolled crosswalk?

Why did the chicken cross the road? To get to the other side, of course. But, how did the tasty fowl get there?

Everyone is familiar with the pedestrian crosswalk at a traffic light or stop sign. The law requires you to come to a complete stop (at a stop sign or red traffic light), and because of the stopping requirement, any pedestrians wishing to cross the street may do so when it is safe.

But, what if there’s a marked crosswalk, but no stop sign or traffic signal “controlling” the area? 

People say that pedestrians always have the right of way; so what if they walked in a marked crosswalk in front a moving vehicle? Should the motorist be responsible?

In California, the law describes both the responsibilities of the pedestrian, and the motorist. However, they are not as cut-and-dry as people would think.

CA Vehicle Code 21950.  (a) The driver of a vehicle shall yield the right-of-way to a pedestrian crossing the roadway within any marked crosswalk or within any unmarked crosswalk at an intersection, except as otherwise provided in this chapter.

(b) This section does not relieve a pedestrian from the duty of using due care for his or her safety. No pedestrian may suddenly leave a curb or other place of safety and walk or run into the path of a vehicle that is so close as to constitute an immediate hazard. No pedestrian may unnecessarily stop or delay traffic while in a marked or unmarked crosswalk.

(c) The driver of a vehicle approaching a pedestrian within any marked or unmarked crosswalk shall exercise all due care and shall reduce the speed of the vehicle or take any other action relating to the operation of the vehicle as necessary to safeguard the safety of the pedestrian.

(d) Subdivision (b) does not relieve a driver of a vehicle from the duty of exercising due care for the safety of any pedestrian within any marked crosswalk or within any unmarked crosswalk at an intersection.

Because of the ambiguity of the laws, cases where pedestrians are injured after being struck by a vehicle are difficult, and the parties often share liability. Specific facts such as how many times a pedestrian looked for oncoming traffic, the visibility on the day of the accident, the speed of the motorist and a host of others all come into play for an investigation into the responsible party.

Moral of the story? Whether you are a pedistrian enjoying your latte on a beautiful Saturday afternoon in La Jolla, or a motorist driving to a business meeting downtown, make sure to be aware of your surroundings. Only enter the street or cross a crosswalk when it is safe to do so. There are many distractions in our beautiful city of San Diego, so stay focused and get where you are going safely! 

Have a question regarding pedestrian rights? Feel free to contact BONNICI LAW GROUP for a free consultation. 

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Can I use my Maps Feature on my Phone While Driving?

Phone driving photoEvery driver knows that using your cellphone while driving is a big no-no in California, unless you are utilizing a hands-free device. But what exactly does the term “using” mean? It’s obvious that talking and texting is prohibited while driving, but what about using your cell-phone GPS or playing music from your phone? The term may encompass more activity than you think and one California resident put the term to the test.

Steven Spriggs, the defendant in a recent Fresno California Court of Appeals case, was pulled over and cited for using his phone while operating a vehicle, in violation of Vehicle Code Section 23123. The basis of Spriggs’ argument is that he was not in violation of the code because he was not technically using his phone to make a phone call or write a text; he was using the map function. The Appellate Court did not find his argument persuasive. The Court ruled that the no cell-phone while driving ban applies to ALL activity that requires a driver to use their hands to operate their phone. The court reasoned that the purpose of the vehicle code was to prevent “the distraction a driver faces when using his or her hands to operate the phone.” This distraction would occur regardless of if the purpose of using the phone were to make a phone call, text, or use the map.

But what about using an old fashioned paper map while driving, a TomTom navigation system, or playing music from an ordinary mp3 player in your car? These activities are not a violation of the vehicle code because the code specifically prohibits the use of a “wireless telephone,” however; they may be just as distracting if not more distracting than using a cell-phone’s GPS or music capability. The Appellate Court in Spriggs, recognized the irony of prohibiting the use of a cell-phone while driving when there are numerous devices and items that are equally as distracting to drivers that are not prohibited. However, as the Court stated, the regulation of these other distracting devices will have to be left to the legislature.

Prohibiting all activity on a cellphone while driving is a good way to keep distracted drivers off the road but it is definitely not a final solution to the problem. There will always be distractions so long as there is driving. So, do what you can to prevent the problem even if the law does not prohibit it, it could save your life!

People of the State of California v. Spriggs

https://www.documentcloud.org/documents/680893-jad13-02.html

This blog is maintained by the BONNICI LAW GROUP, and written by legal assistant Chelsey Del Testa. Ms. Del Testa graduates from Thomas Jefferson School of Law this month, and will sit for the California Bar Exam in July 2013. For more information on any of the above, feel free to contact us!

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“I got hit by someone without auto insurance. Now what?!?”

Hit by an Uninsured Driver…Now What? – By Chelsey Del Testa

Getting in a car accident can be stressful enough with out having the additional stress of finding out the person who hit you is uninsured, or has decided to flee the scene of the accident. This may be an even more stressful and expensive situation if you are not armed with uninsured or underinsured motorists insurance.

In all states, it is mandatory that every person driving an automobile not only have auto insurance but proof of such insurance at all times. According to a study by The Insurance Research Council, one in seven drivers nationwide are uninsured, and in California, approximately 15% of drivers are uninsured. This is not surprising considering the high cost of having auto insurance, and the effect of past accidents or violations has on pricing.

Additionally, it is California law that auto insurance companies require that you have uninsured and underinsured motorist coverage or sign a written waiver acknowledging the lack of coverage. While this may make the cost of auto insurance cheaper at the outset, opting out of the additional coverage could have some serious financial consequences when an uninsured driver hits you. Your insurance company may only cover a certain percentage, and your only recourse would be to sue the uninsured driver. Successful litigation is not likely going to turn out well since chances are, if the driver could not afford insurance, they are not going to be able to afford expenses resulting from the accident. This may leave you with the financial responsibility for harm caused as a result of the accident and additional attorney’s fees.

Uninsured or underinsured motorists insurance can save you the headache of having to deal with the stress of not being compensated for your losses and protect you from unexpected bills. Uninsured motorist insurance provides drivers with additional compensation when an uninsured driver hits you, you are a victim of a hit and run or you were in a pedestrian accident with an uninsured driver.

Underinsured motorists insurance can also provide additional compensation when the at-fault party’s insurance policy will not cover all of your costs. Both types of insurance will cover not only your medical expenses, but also your lost wages resulting from the accident, which you will not get with ordinary liability insurance. Adding uninsured or underinsured motorists insurance to your policy can be affordable and a good investment considering the cost of not having such a policy and the unpredictability of auto accidents.

Have questions about auto insurance or how a claim may be affected? Contact the BONNICI LAW GROUP today for your free consultation.

 

Chelsey is a legal intern at Bonnici Law Group and a third-year student at Thomas Jefferson School of Law. She is passionate about people and solving problems. For any questions, ideas, or comments feel free to email Chelsey at the Bonnici Law Group.

 www.bonnicilawgroup.com

760. 445. 7118

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Got legal issues? Questions? Concerns?

Got legal issues? Questions? Concerns?

Do it.

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Can I get a Ticket for going too slow on the freeway?

You know that you can get a ticket for going too fast on the freeway, but what about too slow? We’ve all been frustrated with the driver on the freeway going 50mph when the speedlimit is 65. But, is it illegal? Should it be?

Generally, it depends on the state, or jurisdiction. Many speed related laws are very ambiguous, and can be interpreted differently by law enforcement depending on associated conditions. In California, Vehicle Code Section 22350 is such a section, reading:

No person shall drive a vehicle upon a highway at a speed greater than is reasonable or prudent having due regard for weather, visibility, the traffic on, and the surface and width of, the highway, and in no event at a speed which endangers the safety of persons or property. DMV.

One such story caught my eye, where a woman in Maryland was given a citation for going 2mph (yes, two miles per hour) under the speed limit: 

A Maryland woman says she was stunned after receiving a traffic ticket Friday for driving in the left lane at 63 mph in a 65 mph zone.

The woman, who did not want to be identified, told WRC-TV (Channel 4), a local NBC affiliate, that she was driving on Interstate 95 in Laurel when she was pulled over by a police officer and ticketed for failing to move right.

“[I was] really shocked,” she said. “I thought, ‘Oh my God, you’ve got to be kidding me.’”

Winds were gusting up to 40 mph that day, so the woman, who had never gotten a ticket before, slowed down a little to be safe.

“Sometimes when it’s dangerous, you have to do what you can to stay safe,” she said.

John B. Townsend II, a spokesman for AAA Mid-Atlantic, called the ticket “silly.”

“It’s sending the wrong message,” he told NBC 4. “And that is, ‘We will tolerate you driving at more than the speed limit, but it you drive below the speed limit, then you’re penalized for that.’”

The woman plans to fight the ticket in court. Read more

 

Does this mean drivers MUST drive at exactly the posted speed limit? Some states post minimum and maximum speed limits (on a road trip through Utah, I remember seeing a minimum of 45mph and a maximum of 65mph). I think this is a better policy. 

What do you think?

The author, Josh Bonnici, is the managing attorney at BONNICI LAW GROUP, who helps injured individuals with their claims. Questions? Concerns? Contact him today, at: www.bonnicilawgroup.com, or josh@bonnicilawgroup.com

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