May It Please The Court
Quote of the Day - We're smoothing over Los Angeles one pothole at a time.
City's Potholes May Be More Than A Trivial Defect
Admittedly, potholes are not a frequent occurrence here in Southern California. We don't have the freezing and thawing and snow plows scraping the asphalt off the road like they do Back East. I grew up in the snow, and as a kid used potholes as wintertime foxholes to hide and throw snowballs at one another. Some of those potholes even served as tunnels from one side to another.
But I overexaggerate slightly.
So when the Court of Appeal in the case of Strathoulis v. City of Montebello ruled that a one-inch deep pothole did not constitute a "trivial defect" that the City could use to avoid liability, I had to chuckle. But not too hard.
The front end suspension on my car agrees heartily with this ruling, even though the one-inch deep pothole would barely hold an ammunition-sized stack of cannonball-like stack of snowballs. Here, of course, those snowballs would have melted before I could reach the bottom of the pile. But again I overexaggerate slightly.
All joking aside, our plaintiff Joanne Stathoulis tripped and fell in what the court politely refers to as "shallow holes" in a residential street in the City of Montebello. She filed suit against the City of Montebello alleging negligence for the dangerous condition of its street. She fell, struck the pavement, fracturing teeth and causing lacerations to her face.
The City said it had never received a complaint about the potholes and therefore never repaired them. It denied liability for Joanne's injuries and the trial court agreed and granted judgment for the City. Joanne appealed, and the Court of Appeal reversed the trial court and ruled the City may be liable for Joanne's injuries.
Just to be precise, here's the court's characterization: "[The City Inspector] found three holes in the street, about nine feet from the curb. The southernmost gouge was 20 inches long, with a maximum width of six and one-half inches and a maximum depth of one inch. The middle gouge was 19 inches long, had a maximum width of four and one-half inches, and was half an inch deep. The northernmost hole was 24 inches long, a maximum of five inches wide, and had a maximum depth of one inch. The holes were one to four inches apart."
Potholes, plain and simple, and dangerous ones at that.
So now you know. Finally, potholes can get cities and towns into trouble in California. Now the repair trucks will be out in force with hot asphalt to repair those potholes.
No more snowball fights in the streets, though.
How to Get Sued Book Signing At Hollywood Book Festival
If you still don't have your autographed copy, then you can stop by on Saturday, June 12, 2008, from 10:00 a.m. to 5:30 p.m. at The Grove in the old Farmer's Market in Los Angeles. Barnes & Noble is sponsoring the Hollywood Book Festival. You can find How to Get Sued at the Los Angeles Press Club table.
Some 30,000 people are expected. If you stop by early, you can guarantee that you'll get an autographed copy of How to Get Sued, along with the special "Jury Verdict" stamp, and your choice of whether you or your gift recipient are found Guilty or Not Guilty!
Lawyer 2 Lawyer Internet Radio Gets Up Close and Personal with Judge (and Blogger) Nancy Gertner
A very special guest on this edition of Lawyer2Lawyer, Judge Nancy Gertner from the U.S. District Court for Massachusetts, speaks about her experience as a criminal defense attorney, her career rise to jurist and...blogging as a Judge.
Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we welcome the Honorable Nancy Gertner, recipient of the 2008 Thurgood Marshall Award of the American Bar Association Section of Individual Rights and Responsibilities, recognizing her contributions to advancing human rights and civil liberties.
The Fed Closes The Barn Door; Horses Reportedly Missing
The recession's in full swing and foreclosures are at an all-time high, Bear Stearns folded only to get federal brunch aid to bail it out and we're paying through the nose to import oil from Saudi Arabia while untapped reserves lay quietly beneath the coasts of Alaska, Texas, Louisiana and California.
Oh yes, and don't forget that prosecutors are going to slap those two Bear Stearns fund managers on the wrist to punish those responsible for the foreclosure crisis.
As if all of that weren't enough, now the Fed is going to pass new regulations to protect homeowners from this crisis happening again.
Thanks for protecting us from something that already happened.
In Iowa, we called that closing the barn door after the horses had escaped. In fact, those horses are so long gone their foals are now buying property. With homes on that property. Without jobs, without income and without documents. Such a deal.
Know any good rustlers? I mean mortgage brokers, excuse me. I want to refinance my house now that interest rates are at an all-time low.
If the Fed will let me.
Court Strikes Down Employment Contract Arbitration Provision
Lawyers In The HR Department?
Companies hire lawyers to draft contracts to protect them and the company president or general counsel typically expect the contract to do its job.
Then why do companies who spend attorneys fees get sued and then lose even when they use the attorney-prepared contract?
Here's why: no one explained to the line manager how to handle the contract, or things just got too busy and it fell between the cracks.
Let me give you the setup. Airborne Express hires an employee and uses its attorney-prepared contract to ensure the employee can never get in front of a jury and instead be forced into arbitration. Sounds like it should work, right?
Hold on to your britches. The employee sued for sexual harassment and now will end up in front of a jury and not in arbitration. Here's the uncontroverted statement from the employee, right out of the Court's opinion in Ontiveros v. DHL Express, which struck down the arbitration provision as unconscionable:
"At no time did [my manager] explain or describe the contents of the documents in that hiring packet. The hiring packet contained documents like an Immigration Form I-9, documents pertaining to health care coverage, documents relating to my base compensation, documents welcoming me to the company and other documents the content of which I do not recall. The hiring packet came in a binder file. At no time did anyone inform me that I was signing an Agreement to Arbitrate Claims or explain what that was or how it affected my substantive rights. At no time did anyone inform me that I was required to give up any rights I might have to a jury trial in order to work for Airborne. When I was hired, I was informed that I needed to sign the paperwork in order to get paid and start my new job, and I was not afforded an opportunity [to] negotiate further the terms of my employment. I was already working long hours at that point in time and did not have any real opportunity to review the documents I was told to sign. I was not told that I should review the documents with a lawyer or discuss my rights with a lawyer. The first time I can recall knowing about the Agreement to Arbitrate Claims was when DHL raised this issue in this lawsuit. I had not been given a copy of the agreement prior to filing this lawsuit."
With that statement, it's not hard to understand why the Court wasn't comfortable with the arbitration provision in the employment contract.
As an employer, do you have to explain all of this to an employee? Well ... while I might have answered this question differently before this opinion came out, now I would say yes. In fact, I would probably recommend that the company send the employment package to the employee with the hire letter, allowing enough time before the start date to casually read everything and consult with a lawyer, if necessary. Then I'd make the employee go through a long, pre-employment interview in the Human Relations Department and sign innumerable acknowledgements that each and every piece of paper was explained and understood, and afterward, ask if the employee was still interested in accepting the job given all the terms and conditions in the employment contract, and then have the HR staffer sign the contracts on behalf of the company.
Ugh. More paperwork. What will they think of next?
Happy Birthday, Grandpa Walker! (And The Rest Of The Country, Too)
My favorite grandfather would have been 107 today if he were alive. He used to say he really enjoyed all the fireworks and everyone in the country celebrating his birthday.
And that's what I liked best about him. His ability to think big.
Have a great Fourth.
Lawyer2Lawyer Puts The Wraps On The 2008 Supreme Court Term
The Supreme Court wrapped up on June 26th with its final ruling - an individual's right to bear arms. Please join me and my fellow Law.com blogger and co-host Bob Ambrogi as we talk shop with two experts: Tony Mauro, Supreme Court correspondent for Legal Times, American Lawyer Media and Law.com and Amy Howe, from the law firm Howe & Russell, PC. and contributor to the SCOTUS Blog.
We discuss these wrap-up rulings, get reactions to other rulings throughout the term and gaze into the crystal ball for what the Supreme Court will look like at the same time next year after we elect a new President and perhaps see some Justices retiring.
Click on the link below and give a listen.
There's A Hot Time In The Old Town Tonight
1,459 Fires Burning Across (Mostly) Northern California
Last year, Southern California was on fire. This year, at least so far, it's Northern California's turn. There are over 1,450 fires burning, which so far have consumed more than 436,000 acres or just about 682 square miles, despite nearly 19,000 firefighters on the front lines.
Just in case you're learning trivia for the National Geographic geography bee, that's more than half of Rhode Island that's up in flames.
Indeed, the National Geographic asked the question, Why is the West Ablaze? It's not only a good question, but also one without a ready answer. Our national fire policy is to extinguish blazes where they pop up. That might not be nature's way, however. The forest naturally thins out, bringing in new growth and providing nutrients for old growth.
Is it time to retire Smokey the Bear?
Unlike SoCal's fires from last year, most of NorCal's fires have been caused by lightning strikes. The smoke plume is bad, and extends from the top to the bottom of our state. Again, to put it in East Coast terms, that's from the top of Pennsylvania all the way down to the top of Florida. Without these comparisons, Easterners, who are three hours ahead literally and figuratively, have no perspective.
So what should we do? In Australian forestry areas, generally it's every man, woman and child for themselves. The government doesn't dictate evacuations and while it fights fires, it does so only selectively. If you've elected to live in a fire danger area, then you're responsible for your safety and property.
Can we handle that mentality here?
Wait. Let me call 911 to find out.