Wednesday, December 31, 2014

The Construction Industry and Environmental Law in 2014

The intersection of the construction industry and California’s environmental codes and regulations in 2014 may have very important implications for the coming year, and looking at the current trends in environmental law is a good way to see how the courts and lawmakers are shaping the future of the industry.

In important ways, concern for the environment is reflected in new laws. For example, the Department of Housing and Community Development included a provision in their Green Building Code report that requires new construction projects to take appropriate measures to accommodate electric vehicle charging stations at residential properties and parking facilities.

The environmental law known as CEQA has appeared in the news frequently this year. A controversy arose over proposed changes to state law regarding infill projects. California developers raised concerns about guidelines that take into account “miles traveled” for projects and how they could increase litigation. The answer from the Governor’s office was that infill projects reduce the need for traveling by car, so the changes are intended to be helpful for developers of such projects as they negotiate the requirements of the environmental law.

In early 2015, the state Supreme Court is expected to rule on a case filed in Northern California regarding the standards for environmental review on the construction of a single-family property. The case revolves around the construction of a Berkley area home. Local environmental groups raised concerns about the impact of construction based on the size of the home and the steep slope of the land.  California law states rather vaguely that environmental review isn’t necessary for single family homes other than in “unusual” cases, and it’s up to the courts to decipher what meets the criteria. A ruling that extends public environmental review to the home in question may set a precedent that changes standards for construction of single family residences.

In a recent blog post, I wrote about the ruling by the Surface Transportation Board regarding CEQA lawsuits against the high speed rail. This decision reinforced the power of the federal government over transportation projects which it has authorized, above state environmental law.  The implication of this ruling is as an additional source of support for high speed rail and similar projects authorized by the federal government when the challenge is based on state law.

Wednesday, November 26, 2014

What Potential Do Driverless Vehicles Have to Change the Way Car Accidents Are Dealt with in the Future?

Starting in September of this year, a permit is required to test driverless cars on the road in California

The California Department of Motor Vehicles has issued a handful of permits for self-driving cars, most of which have been awarded to Google. These vehicles have to follow a stringent set of rules and regulations during testing and they navigate with the assistance of various sensors, cameras and radar.

The impetus behind the development of autonomous cars is to improve safety and reduce traffic on the road - meanwhile, this raises some interesting questions about liability if the vehicle is involved in an accident, and related issues about insurance coverage and other parts of the vehicle code.

During testing, a driver must be at the wheel at all times so that a human can take over if the vehicle encounters a situation it’s not yet able to handle. At this time, the manufacturer and the operator are responsible for any possible bodily damage or destruction of property that may result from a collision.

When autonomous cars become available to consumers, which may be around 2017, what will the insurance requirements be? The consensus seems to be that the manufacturer will be held responsible for a collision. In fact, automated vehicles may make it easier and quicker to resolve insurance claims because factors that currently cause a gray area may be eliminated.

An autonomous vehicle application for acquiring a testing permit sets forth some rigorous requirements. Trained drivers with clean records must be at the wheel in case they need to intervene. In addition to sensors, the vehicle is equipped with safety equipment that warns of any possible malfunction, and strict record-keeping is required by the manufacturer. And there's also this form from the DMV for reporting accidents involving driverless vehicles. 


Sunday, May 4, 2014

Can a Public Entity Be Liable for Personal Injuries suffered as a Result of a Dangerous Condition of Public Property?

The question of whether a public entity can be liable for personal injury suffered by someone as a result of a dangerous condition of public property was discussed recently by the California Court of Appeal in the published case entitled Martinez v. County of Ventura (2014) 225 Cal. App. 4th 364, in an opinion filed on April 8, 2014. 

Plaintiff Martinez and his wife sued the County for serious personal injuries he suffered when his motorcycle hit an asphalt berm next to a raised drain on the shoulder of a County-owned road.  Government Code § 835 says that a public entity is liable for reasonably foreseeable personal injuries that are caused by a dangerous condition on its property. 
At trial, the jury found that the County’s drain system was a dangerous condition of public property that caused plaintiff’s injuries. However, because of the “design immunity” defense raised by the County, the County won the case.  The Plaintiffs appealed.

The design immunity defense is found in Government Code § 830.6. This code section says that a public entity is not liable for a dangerous condition on its property when the personal injury is caused by discretionary approval of a construction plan or design prior to construction, and there is substantial evidence that the construction plan or design was reasonable.

The appeal focused on the “discretionary approval” aspect of the design immunity defense.  For the design immunity defense to apply, the public entity must be able to show that the construction plan or design was approved by the public entity in advance of the construction.  The Court of Appeal reversed the trial court’s decision in favor of the County because there was no evidence at trial that the County exercised its discretion to approve the drain system. At the trial, the County did not introduce any evidence of a design or a plan for the drain system.  The evidence at trial showed that “the maintenance workers simply built and installed the drains in the field as they saw the need for them.” The Court of Appeal stated: “Because the County presented no evidence of any design, there was no evidence of a design that anyone with authority to approve it could approve.”  The Court of Appeal also agreed with the Plaintiffs' contention that “there was no evidence that any design was approved in advance of construction by someone exercising discretionary authority to give such approval on behalf of the County.” 
The Court of Appeal confirmed that “a public entity seeking design immunity must establish the discretionary approval element of the defense, even if the project is a maintenance project for which formal plans are not customarily prepared.”

Monday, February 3, 2014

When is an Employer Responsible for a Car Accident Caused by its Employee?

              The California Court of Appeal case Halliburton Energy Services, Inc. v. Department of Transportation (2013) 220 Cal.App.4th 87, deals with the issue of when an employer is responsible for a car accident caused by one of its employees. The Court of Appeal explained that an employer can only be responsible for an employee’s car accident if the employee was acting within the scope of his employment at the time of the car crash.  The case involved an employee who was assigned a company truck to drive. After the employee’s shift at work near Seal Beach, CA ended, he drove in the company truck to meet his wife at a car dealership in Bakersfield in an attempt to purchase a vehicle for his family’s personal use.  He then drove in the truck to a restaurant to have a meal with his family.  On the way back to his job, he was involved in an automobile accident on the 5 freeway southbound as he was beginning to ascend the grapevine.  Six persons suffered personal injury in the accident.  The injured parties sued the employee and his employer, in addition to the Department of Transportation.  The employer successfully filed a motion for summary judgment in the trial court to get out of the case on the ground that it was not responsible for the alleged negligent driving of its employee. 
              The Court of Appeal explained that in order to hold an employer liable for an accident caused by its employee, under a legal theory called “Respondeat Superior”, it must be determined if the employee was acting within the scope of his employment at the time of the accident. In other words, there must be a connection between the employee’s negligent action and the employment.  In this case, the employee was not at his employer’s place of business or worksite at the time of the car accident. The automobile accident happened between the employee’s shifts, 120 miles away from his assigned worksite.  In addition, the employee was on a personal trip to meet his wife to purchase a personal vehicle.  He was not performing any services for or running any errands for his employer, and the trip did not further any business activity of the employer.  The Court of Appeal found the trip to be entirely personal to the employee, and outside the scope of his employment.  Because of this, the appellate court upheld the trial court’s ruling in favor of the employer.