Thursday, July 21, 2011

Bringing Your Pet to Work is Not Always A Good Idea

What if you’re out shopping at the local Penny Pinchers, immersed in the fugue of commerce, when all of a sudden, you’re shocked back into a bewildered consciousness by the ominous and rapidly approaching footsteps of a ferocious animal bearing down on you? As you struggle to orient yourself, you begin to recognize the vicious beast’s malevolent growl rising in volume, competing only with the sound of your rapidly exploding heart which is beating a drum in your ears. Bewildered, you arrive at the moment when reason departs and instinct prevails, and you suddenly find yourself sprinting in the opposite direction of your defiant stalker. After running for what felt like miles, you anxiously turn to see if you’ve managed to escape your predator. Just before the animal comes into view …WHAM!!!…you’ve slammed into a freezer at the end of the aisle. At least you still have your sense of humor when you come to realize that you were the prey of a four-pound dachshund named Sophie.

Earlier this month, the Mississippi Court of Appeals ruled in favor of a local outlet of Penny Pinchers, a regional discount grocery chain, in a case where a patron alleged the exacerbation of a pre-existing hip condition which occurred when…you guessed it…she ran from a dog in the store and collided with a freezer display at the end of an aisle. The plaintiff claimed that the puppy constituted a dangerous condition on the property, and that, as such, Penny Pinchers negligently failed to maintain the store in a safe condition by not properly restraining the wiener dog or warning customers of his fearsome presence.

In finding against the plaintiff, the Mississippi Court of Appeals overturned the lower court’s decision that Sophie created a dangerous condition at Penny Pinchers which made them liable for her injuries. In their ruling, the Court of Appeals stated Penny Pinchers had no duty to warn of the perils of the four-pound puppy because Sophie’s presence did not amount to a dangerous condition on the property about which Penny Pinchers knew or should have known. Sophie had never barked at or chased any other customers, and, thus, it was not reasonably foreseeable that she was likely to “attack” anyone.

However, another interesting question is what role the plaintiff’s pre-existing condition and irrational fear of dogs would have played if the appellate court had upheld the trial court’s decision. As a matter of common sense and intuition, it may seem outrageous that a person’s irrational fear of a rat-sized dog could cause her to take off running—only to injure herself when she runs into a large, unyielding appliance on display in a discount store. It may also seem outrageous that the same person would be legally entitled to compensation for the exacerbation of a pre-existing hip condition with origins entirely unrelated to the dog/freezer episode.

Well, California law does not specifically articulate a doctrine dealing with the pre-existing medical conditions of tort plaintiffs—there are no jury instructions discussing the law-school classic “eggshell plaintiff” doctrine or no statutes codifying the sentiment of “taking plaintiffs as you find them.” Instead, California law builds the “eggshell plaintiff” doctrine into the essential elements of a negligent tort claim by identifying it as question of causation.

California law employs the “substantial factor” test to determine causation in negligent tort actions.  The “substantial factor” test asks whether or not a defendant’s negligent act was a substantial factor in causing a plaintiff’s particular harm.  Further, California law also recognizes that if a tort defendant’s negligent act constitutes a “substantial factor:” in causing the plaintiff’s harm, that defendant cannot avoid responsibility simply because some other condition was also a substantial factor in causing the plaintiff’s harm.

Accordingly, while California does not specifically articulate an “eggshell plaintiff” doctrine or a “pre-existing medical condition” doctrine, California law does honor those principles through its use of the “substantial factor” test for causation. Moreover, the internal logic of the “substantial factor” doctrine may also be argued to take into account even this plaintiff’s irrational fear of dogs.

What’s the lesson to be learned? If you do not want to be exposed to the potential damages supported by the “substantial factor” doctrine, make sure you examine your property for all dangerous or even potentially dangerous conditions. You do not want to end up paying for someone’s trick knee (or hip) just because you wanted to bring your dog to the office every day. If you have questions, or if you are a business owner who needs to defend a premises liability suit, then contact James Higa at (415) 655-6820 or by email at higa@higagipsonllp.com.

Tuesday, July 12, 2011

Aviation Fuel Suppliers and Retailers Come Under Fire From California Environmental Group

On May 12, 2011, the Center for Environmental Health (CEH) notified approximately 50 aviation gasoline (AVGAS) suppliers and retailers in California that it intends to sue them for violating the Safe Drinking Water & Toxic Enforcement Act of 1986 (“the Act”). The Act prohibits a business from releasing toxins that can make their way into drinkable water sources. The Act specifically identifies lead as a toxin. The Act provides for civil penalties for violations of the act up to $2,500 per day for each violation. The Act contains a “bounty hunter” provision which authorizes private civil suits and allows the litigants to recoup up to 25% of all civil and criminal penalties collected.

There are important exceptions to the Act’s reach. For instance, if a business has 10 employees or less then that business is exempt. Next, in order for a private lawsuit to proceed under the Act, the private litigant must first give notice and allow 60 days to pass. During this 60 day waiting period, if neither the State Attorney General nor the local District/City Attorney prosecutes an action, then the private litigant may file their lawsuit.

In response to the notification by CEH, the General Aviation Manufacturers Association (GAMA) released a statement highlighting the fact that the regulation of all aviation related activities is within the purview of the Federal government, namely the Federal Aviation Administration (FAA) and the Environmental Protection Agency (EPA). The statement includes the following sentence: “The threatened CEH lawsuit in California raises the specter of a patchwork of state regulations governing fuels pilots may or may not use in their piston-powered aircraft.” The points raised by GAMA in its statement segue nicely into a solid argument against CEH’s use of the Act against AVGAS suppliers and retailers based on the Commerce Clause.

Under Article I, Section 8 of the United States Constitution, Congress is given the exclusive power to regulate commerce among the states. This provision is known as the Commerce Clause. The purpose of the Commerce Clause is to prevent the individual states from imposing barriers and obstacles to interstate trade. State legislation that targets the channels of interstate commerce (i.e. the roads, rail lines, telephone lines, or airways); the instrumentalities of interstate commerce (i.e. railroad cars, buses, trucks, and airplanes); or that has a substantial relationship to interstate commerce is prohibited under the Commerce Clause. Piston powered aircraft taking on AVGAS in California travel from state to state in interstate commerce. Without question, CEH’s attempt to regulate AVGAS via the Act runs afoul of the Constitution's Commerce Clause. The legal analysis shows that the actions being challenged by CEH fall squarely into the ambit of protection of the Commerce Clause and the Federal Government. Put another way, the Commerce Clause will not allow the Act to be used as a sword in this way against AVGAS suppliers. As GAMA indicated in its press release, change in this area must come from the Federal Government through agencies such as the FAA and the EPA.

The 60 day notice period that began on May 12, 2011, ended on July 11, 2011. Presumably, CEH will file its lawsuit and serve copies of the complaint on the previously notified parties. If your business is named as a party to the suit by CEH, then you must take action to protect your legal rights by contacting an attorney. If you have more questions or concerns, then feel free to contact Ronnie R. Gipson Jr., Esq. at (415) 655-6820 or by email at Gipson@higagipsonllp.com.

Ronnie R. Gipson Jr. is an aviation attorney and a founding partner at Higa & Gipson, LLP in San Francisco.