Amusement parks rides aren’t so amusing anymore.

            When we go to an amusement park, we expect to have fun and not get hurt. But if you take a ride on a bumper car and if you get hurt, you may be assuming the risk of that injury, according to a recent California Supreme Court case.

            In the recent California Supreme Case of Smiriti  Nalwa v. Cedar Fair, LP, a person brok her wrist while riding on a bumper car at an amusement park. She sued the amusement park for various causes of action. The trial court ruled the amusement park was not liable. The Appellate Court reversed and found the amusement park was liable. The case went all the way to the California Supreme Court which ruled recently the amusement park was not liable for an injury while riding on a bumper car. After reviewing a long line of cases where a person was hurt while participating in some form of physical activity, the Supreme Court ruled that when riding a bumper car, the rider is assuming the risk of getting hurt.

           

            Assuming the risk is a defense to a lawsuit that is often used when a person is hurt in sport type related activities. For example, a batter getting hit by a baseball pitch is a risk that one assumes when playing the sport. Riding a bumper car, however, would not be considered to be a sport to many people. The California Supreme Court, however, referred to riding a bumper car as “active recreation”, which is an activity that one voluntarily participated in when hurt. Therefore, when the hurt person got into the bumper car and drove the bumper car around, that person was voluntarily assuming the risk of getting hurt.

            The California Supreme Court, did, however, consider situations where a person may not be assuming the risk of getting hurt on a bumper ride. One way to avoid such a defense to your case is to raise the “negligence per se” argument, which means that as a matter of law, someone was presumed negligent. See Evidence Code 669; See Cheong v. Antablin (1997) 16 Cal.4th 1063.  That argument prevents a defendant from using the assumption of risk defense to defeat your lawsuit. To make the negligence per se argument, you need find a safety regulation that the amusement park may have violated. In California, the safety regulations for amusement type rides can be found in Cal. Code. Regs. Title 8, §3900.

            Another way to avoid the assumption of risk defense is to argue that the amusement ride was a common carrier. The common carrier argument applies typically when you are paying for a ride. This argument is typically used when people are hurt in cabs, taxis, buses, etc., but California courts do recognize that amusement park rides can be common carriers. See

 Gomez v. Superior Court (2005) 35 Cal.4th 2 1125, 1241. This type of argument will boil down to the specific type of ride you were in when you were hurt. The less control you have over your amusement park ride, the more likely the amusement park ride would be a common carrier.

            In a case where I represented a person hurt on a bumper car ride we raised the common carrier argument. The insurance defense law firm tried to have my client’s case dismissed arguing that the amusement park had no control over the bumper car. The insurance company compared the bumper ride to someone renting a car; once a person got into the car, that person was on their own without any interference from the amusement park. I argued just the opposite; that the bumper car never leaves the track, it goes in one direction, the car is maintained (fixed, repaired, etc.) by the amusement park. Interestingly, when I personally investigated the amusement ride site, I saw there were buttons right by the attendant that he/she could push in a moment’s notice to stop the bumper cars in their tracks. That push of a button gave the amusement park even more control over the ride. The trial court agreed with my client, and the case was not dismissed.

With this recent California Supreme Court ruling, it would be more difficult, but not impossible, to hold an amusement park company liable for your injuries caused by the ride. One will need to know specifics of the type of ride; the control one had over that ride, and if there are any safety regulations that govern the ride. If you were hurt on an amusement park ride, it is suggested for you to consult with an attorney experienced in amusement park ride injuries to know and protect your rights.

Victims of employment harassment/discrimination are not alone. Recent “Me too” evidence case gives victims of harassment/discrimination a helping hand in employment cases. Pantoja v. Anton (August, 2011) 198 Cal.App.4th 87.

             “Me too” evidence is a type of evidence used in employment cases. Typically, a victim of harassment/discrimination may come to learn that others have also been the victim of harassment/discrimination and will want to use that evidence to help them prove their case. That is where the phrase “me too” evidence comes into play. See Johnson v. United Cerebral Palsy/Spastic Children’s Foundation of Los Angeles and Ventura Counties (2009) 173 Cal. App. 4th 740. Having others who experienced harassment/discrimination at the same place of work can be very helpful to your case because as they say, “where there is smoke, there is fire.” But, like any evidence, there is always a question of whether it will be admitted into the court by the judge.

Defense lawyers, representing employers, do not like me too evidence, and they will do as much as possible to keep it out. Defense lawyers take the position that the victim of harassment/discrimination had to know that others were also experiencing harassment/discrimination at the time it was going on in order for me too evidence to be admitted into court. See Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590.

If a judge or jury hears that others at work experienced the same harassment/discrimination that you did, then that me too evidence will likely convince the judge/jury that you are not making up or exaggerating your claim. And, when it comes time for the judge/jury to decide if you are right or wrong, having another person also experiencing the same problems can make that crucial difference in your case.

                Generally, in order to have me too evidence admitted into evidence (allow the judge/jury to see/hear it), the victim needs to show that the victim knew that this other victim was or had experienced the same harassment/discrimination that you experienced. Sounds simple, but like many employment cases, victims do not always complain or voice their concerns out of fear of retaliation, losing their jobs in an already weak economy or just plain humiliation. Therefore, a lot of times, a victim of harassment/discrimination may never know of the other victims until well into after a lawsuit was filed, if at all. By then, courts may not admit that me too evidence because you did not know of the other victim while you yourself were going through the harassment/discrimination. Luckily, for employees, that no longer has to be the case.

                In Pantoja v. Anton (August, 2011) 198 Cal.App.4^th 87, the California Appellate Court ruled that a victim seeking to admit me too evidence did not need to know of the other victim’s harassment/discrimination in order to have me too evidence admitted into court. Instead, the Appellate Court ruled that a victim of harassment/discrimination can use recently discovered me too evidence to (1) impeach the defendant who denies ever committing harassment/discrimination before or (2) to show intent of the defendant to harass/discriminate against others in the same way.

Based on a reading of this ruling, the Appellate Court has provided victims of harassment more opportunities to prove they were a victim of harassment/discrimination. It no longer has to be a “he said, she said” type case. This ruling undoubtedly expands the rights of victims of harassment/discrimination in proving they were the unfortunate victims of harassment/discrimination.

Posted by: Attorney Angelo F. Campano at acampano@campanolaw.com; Tel: 661-945-5300.

California really does take its tree cutting seriously. (Stanley Kallis v. Aaron Sones, LASC SC104866)

In another recent tree case, the Appellate Court was asked to decide what and how much in damages must be paid when a tree, growing between two properties, is damaged by one of the property owners.

In Kallis v. Sones, these were two neighbors who lived side by side for years. They never seemed to have a problem. In between their property was a tree that grew 70 feet in height. The tree grew on the property line that divided both properties, also referred to as a “line tree”. See Scarborough v. Woodill (1907) 7 Cal.App.39, 40. And eventually, part of the tree grew so tall that the Sones family felt that the part of the tree, hanging over their yard, would be a danger to their home. So, the Soneses decided to protect their home by cutting the tree. The only problem is that the Soneses cut down the entire tree, even though some of that tree also grew on their neighbor’s property. The Soneses claimed they gave their neighbors a written notice but there was no proof this was ever done. (In a prior posting, I suggested that anyone deciding to cut down a tree that may also be on a neighbor’s yard should give written notice of the tree cutting. Had there been proof of this, the court may have decided differently.)

The Sones family was sued by the Kallis family, and the court sided with the Kallis family. The court awarded what it would cost to restore a tree similar in height and size, also referred to as “restoration cost”. See Heninger v. Dunn (1980) 101 Cal.App.3d 858, 862. The court also doubled that award under Civil Code Section 3346. The total amount came to exceed $100,000. The Soneses appealed and claimed that the damages, if any, should have been reduced to reflect the fact that the tree grew on both properties, so the Soneses were entitled to a credit for half the tree they owned. That’s a fair argument however the Kallis family argued that the tree provided a lot of personal value to them, a value that could not easily be replaced. The Court heard testimony on this “personal value” and held that the personal value of the tree to the Kallis family justified the entire amount ordered, including the doubling of that award.

The summary of this case is that a tree growing between two property owners is owned by both property owners, and if you are going to cut away any part of that jointly owned line tree, make sure to (1) notify your neighbor and (2) avoid causing harm, personal or otherwise, to the part of the tree owned by the neighbor next door.

Do not go out on a limb when cutting a neighbor’s overhanging tree branches.

Generally, in California, a landowner can cut branches of a neighbor’s tree if the branches overhang in his/her yard. But, the landowner cannot cut so much of the tree if it ends up damaging or destroying the neighbor’s tree. In a recent case, the Appellate Court added that the landowner who cuts down over hanging branches of a neighbor’s tree can also be responsible for damages if the tree trimming affects the aesthetic or functional value of the tree.

In Rony v. Costa, a defendant landowner wanted to clear some overhanging branches of a tree that were growing from a tree located on a neighbor’s yard. The case is not clear if the defendant landowner informed the neighbor that the branches would be cut down. Under the law, the defendant landowner generally has the right to cut overhanging branches. But, the landowner went too far, according to the Appellate Court, when the tree branch cutting harmed the aesthetic and functional value of the tree. The tree, itself, did not die nor was it damaged significantly. The tree owner, however, testified that the tree, before its branches were cut, provided shade and made her yard more attractive to the eye. That was the aesthetic value.

On appeal, the Appellate Court held that a tree owner can recover for the loss of a tree’s aesthetic value. In other words, the Appellate Court allowed the tree owner to recover for the emotional damage caused by the tree branch cutting. Aesthetic value is generally a subjective decision and often difficult to place a value on. In this case, the tree owner could not place a dollar figure on her emotional damage, but the Appellate Court held that she did not have to do so. A jury “was free to place any dollar amount on aesthetic harm, unless the amount was ‘ “…so grossly excessive as to shock the moral sense, and raise a reasonable presumption that the jury was under the influence of passion or prejudice.” See Seffert v. Los Angeles Transit Lines (1961) 56 Cal.2d 498, 506-509 [15 Cal.Rptr. 161, 364 P.2d 337] [affirming award of hard-to-measure emotional distress damages]; See Weller v. American Broadcasting Companies, Inc. (1991) 232 Cal.App.3d 991, 1011-1014 [283 Cal.Rptr. 644] [affirming awards for reputational and emotional harms].)

In California, trees are very well protected. Code of Civil Procedure 733 and Civil Code 3346 allow a tree owner to recover up to 3 times the cost of repairing the damaged tree.  Under case law, according to the Appellate Court, the tree owner can recover for the damage caused to the aesthetic value of her tree. In addition, Code of Civil Procedure 1029.8 allows a tree owner to recover attorneys’ fees against the unlicensed person who actually caused the damage when a license is required to perform the work.

Not mentioned in the court opinion is whether the defendant landowner informed the tree owner that the overhanging branches were going to be cut. Although not required, it is recommended that the person about to cut branches or roots let the tree owner know in advance what is going to be done. Including the tree owner in on the plan could help keep the consequences of what happened here out of court.

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An Employee refusing to sign a disciplinary memo can be fired and denied unemployment benefits.

            In many jobs, employers have written warnings or notices they give to employees who are believed to have violated a work rule. Typically, these warnings/notices have a place at the bottom where the employee is supposed to sign his/her name. Generally, it is so the employee cannot later on say they never knew of the warning/notice. Sometimes, the employee refuses to sign the warning/notice because it might be looked at like an admission of fault. In a recent case, one employee refused to sign his name, and was fired for not signing the warning/notice. The employee filed for unemployment benefits and was initially given benefits. The employer appealed that decision and the Appellate Court sided with the employer. The Appellate Court found the employee committed misconduct for not signing the warning.

            In Paratransit, Inc. v. Craig Medeiros, the fired employee filed for unemployment benefits. In California, an employee can be refused unemployment benefits if the unemployment judge finds the employee committed “misconduct”. In this case, the fired employee was granted unemployment benefits by the unemployment judge. The employer appealed, the case made its way to the Appellate Court, where the employer prevailed. The Appellate Court found the discipline notice/warning was a standard policy at work and signing the warning was required as part of the job. Further, the Appellate Court found that just below the signature line, it read “employee signature as to receipt”. The Appellate Court found, in this instance, that the employee signing the notice/warning was just to give the employee notice of the violation, not that the employee admitted fault.

            In the Paratransit, Inc. v. Craig Medeiros, the Appellate Court seemed to support the employer and find the employer’s actions reasonable. According to the Appellate Court, the discipline notice/warning was a part of the job, and the notice/warning made it clear that the employee signing his name was not an admission of fault. The Appellate Court found misconduct by the employee because the employee refused to comply with the employer’s reasonable work rules/policy of signing the warning/notice. With a finding of misconduct, the employee was denied unemployment benefits.

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acampano@campanolaw.com

Bloggers may not always be allowed to post negative reviews about businesses.

            The courts may not protect people who post negative postings of businesses on the internet. Deciding whether the business owner can stop negative postings will depend on the corporate structure of the business, according to one recent Appellate Court.

            In Summit Bank v. Robert Rogers, the Appellate Court sided with the blogger, who posted negative comments about a publicly traded bank. The blogger worked for the bank until he resigned. The bank sued for defamation and the blogger filed what is referred to as an Anti-SLAPP Motion to strike the lawsuit. The blogger filed the motion claiming his posts were protected speech because issues surrounding the bank were of “public interest”. (See CCP Section 425.16)

            In analyzing the phrase “public interest”, the Appellate Court initially held that the phrase “public interest” is not defined by the statute (CCP Section 425.16). In the absence of a statutory definition, the Appeals Court applied existing case law and held that comments, positive or negative, about a business were of “public interest” if the blogger who posted the negative comments can prove that (1) the company is publicly traded (2) the number of investors and (3) whether the company promotes itself with numerous press releases. See Ampex Corp. v. Cargle (2005) 128 Cal.app.4^th 1569, 1576.

            Here, according to the Appellate Court, the postings were of public interest because the blogger could prove all three factors with conclusive evidence. The bank was publicly traded; the bank had investors; and the officers/executives issued many press releases promoting their publicly traded bank to attract more investors. The Appellate Court also noted that a public concern was the recent bank meltdowns going on throughout the country. Therefore, the public had even a stronger interest in the solvency of banks.

            In the end, the Appellate Court sided with the blogger. Although the Appellate Court, in Summit Bank, sided with the blogger and held the postings were protected speech, it appears the Appellate Court took that position because the blogger could prove the 3 factors listed above. The blogger had the burden of proof, which is not something to quickly overlook. One view to take from this opinion is that if your business is not publicly traded, does not have many investors, and you do not issue numerous press releases, a court may decide that the negative postings on the internet about that business are not of public interest and not protected speech. Whether or not the bank could prove a probability of success on the merits and whether the postings are defamatory are separate questions.

No overtime pay for personal attendants

Overtime for personal attendants? A person hired to care for an elderly person is not entitled to overtime if that person is hired as a personal attendant. Overtime is earned if a person works in excess of 8 hours a day or more than 40 hours a week. A personal attendant is defined as someone hired to supervise, feed or dress the client/elderly person. See Joy Cash v. Iola Winn 2012 WL 1662629 (Cal. Ct. App. 2012)