Pivotal Law Group

206-340-2008
Toll Free 866-884-2417
Español 866-802-9832

The Pivotal Law Blog

Life-size Sculpture Created To Withstand Car Crashes

Posted Wednesday, September 7, 2016 by Pivotal Law Group

crashAustralia’s Transport Accident Commission has teamed up with Melbourne artist Patricia Piccinini to create “Graham” – a life-size sculpture that was designed specifically to survive car crashes.

The sculpture is part of a road safety campaign that serves to remind drivers of the intense impact car crashes have on the human body.

Logan and Christian Kenfield, a trauma surgeon at Royal Melbourne Hospital, advised Piccinini about how the body responds in a crash and discussed the possible ways to enhance the human body to make it more resistant to impacts.

Some of Graham’s features include a flattened face to absorb the energy of an impact and a larger skull with more cerebrospinal fluid and ligaments to better protect his brain.

Graham is even able to avoid injury while on foot: He has hoof-like legs with added joints and knees that bend in all directions to quickly move out of the way of oncoming traffic.

Click here for a link to the full article and to see a video of Graham, or see the link below:

http://www.cnn.com/2016/07/25/health/graham-human-body-sculpture-car-accident/

Photo credit: JJTheJester, used under the Creative Commons license

Permalink to this entry

Court Orders Yelp to Take Down Defamatory Reviews

Posted Wednesday, August 31, 2016 by Alice Noman

YelpThe popular business rating website Yelp.com recently took a stand against the California Court of Appeals. Yelp is known for publishing public reviews about local businesses. In a defamation case by attorney Dawn Hassell, Yelp was ordered to take down defamatory reviews made by the attorney’s former client. Hassell v. Bird, 247 Cal. App. 4th 1336 203 Cal. Rptr. 3d 203 (2016).

Hassell filed suit against a former client who was posting negative Yelp reviews about her practice. Hassell represented the former client for 25 days in a personal injury matter before withdrawing because of communication troubles and the client’s dissatisfaction with the service. After making repeated requests for the client to take down the reviews, the client refused and instead threatened to post more reviews and have another review posted by someone else as well. Soon after, the client created a fake identity and posted another negative review about Hassell. The reviews contained false accusations regarding Hassell’s services and skills as an attorney.

After Hassell filed suit for defamation, the former client (defendant) made no appearance at the hearing. Hassell was awarded damages totaling $557,918.75 and an injunction ordering the defendant to remove all the defamatory reviews about Hassell Law Group and Dawn Hassell on Yelp.com or anywhere else on the internet within five business days of the court order. The defendant was further prohibited from posting anything else about Hassell on Yelp.com or anywhere else on the internet. Yelp was ordered to remove all reviews posted by the defendant as well.

Yelp refused to comply with the court deadline, believing that the order violated Yelp’s Due Process and First Amendment rights. Yelp filed a motion to set aside and vacate the judgment and the motion was denied. The court reasoned that Yelp was aiding and abetting the ongoing violation of the injunction by explicitly recommending one of the defendant’s reviews and refusing to take down the other reviews. Yelp appealed to the California Court of Appeals. The court ruled that even though Yelp was not a party to the defamation action brought by Hassell, injunctions can properly run against nonparties. Planned Parenthood Golden Gate v. Garibaldi, 107 Cal. App. 4th 345, 355, 132 Cal. Rptr. 2d 46, 54 (2003).

As to the protection of Yelp’s First Amendment right “to distribute the speech of others without an injunction,” the court held that in this context, the removal order did not treat Yelp as a publisher of the defendant’s speech, but rather as the administrator of the forum the defendant used to publish her defamatory reviews. Furthermore, the speech was already deemed to be unprotected and tortious and thus not protected under the First Amendment. However, the court did find that ordering Yelp to remove subsequent comments that the defendant may make (other than those already found to be defamatory) was an unconstitutional and overbroad prior restraint on speech. Although the order denying Yelp’s motion to vacate the judgment was affirmed, the case was remanded so that the trial court could narrow the terms of the removal order by limiting it to the specific defamatory statements that the court already ruled on.

This case serves as a reminder that both online consumer reviewers and the websites that host their content are subject to the laws of libel.

Photo credit: Mark Morgan, used under the Creative Commons license

Permalink to this entry

Municipality’s Duty to Maintain Roadways Extends Beyond Asphalt

Posted Wednesday, August 24, 2016 by Pivotal Law Group

stop signMunicipalities have a duty to maintain their roadways in a reasonably safe condition for ordinary travel. In a recent decision, the Washington State Supreme Court held this duty extends beyond the roadways themselves to the surrounding areas.

In June 2008, Guy Wuthrich was riding a motorcycle on Avondale Road, approaching the intersection at 159th Street. Around that same time, Christa Gilland was driving on 159th Street. Ms. Gilland was controlled by a stop sign, while Mr. Wuthrich was not. As she approached the intersection, Ms. Gilland waited for traffic, but did not see Mr. Wuthrich approaching. When Ms. Gilland pulled into the intersection, she collided with Mr. Wuthrich, seriously injuring him.

Mr. Wuthrich filed a complaint against both Ms. Gilland and King County. With respect to the County, he alleged it was responsible for his injuries because overgrown blackberry bushes obstructed Ms. Gilland’s view of traffic. The trial court dismissed Mr. Wuthrich’s case against the County, and the Court of Appeals affirmed.

In Wuthrich v. King County, 91555-5 (Jan. 28, 2016), the Washington State Supreme Court reversed those decisions. The Court noted that municipalities have a well-established duty to maintain their roadways in a condition safe for ordinary travel. This duty is not limited to the roadways themselves, and does not exempt municipalities from responsibility where the unsafe condition is caused by a roadside condition like vegetation or other sight obstructions.

In doing so, the Court overruled past cases holding or suggesting otherwise. Those cases were decided when municipalities had “sovereign immunity,” in other words, immunity from being sued. As a result, those cases found municipalities only had a duty to warn or protect against conditions that were “inherently dangerous” or “misleading,” and that roads were not rendered inherently dangerous solely because of obstructive natural vegetation. Now, municipalities are held to a higher “reasonableness” standard, meaning they must act reasonably in keeping their roadways safe for ordinary travel.

The Court also held that to prove causation, i.e. that the municipality’s failure to act caused Mr. Wuthrich’s injuries, Mr. Wuthrich only needed to show the municipality had notice of the condition, not necessarily notice of prior incidents at that intersection.

As a result, Mr. Wuthrich’s claims against the County should not have been dismissed, and he should have had the opportunity to prove at trial that (1) the road was not reasonably safe for ordinary travel, and (2) the municipality did not make reasonable efforts to correct the hazardous condition.

Photo credit: Kevin Wong, used under the Creative Commons license

Permalink to this entry

Court of Appeals Requires City to Ensure Roads are “Reasonably Safe” for Bicyclists

Posted Wednesday, August 17, 2016 by Christopher L. Thayer

bicycle jpgDivision II of the Court of Appeals in O’Neill v. City of Port Orchard, ruled the city had an obligation to ensure its roadways were maintained to be “reasonably safe” for bicyclists. In O’Neill, plaintiff, an avid cyclist, was riding her bike in Port Orchard when she was thrown from her bike and seriously injured. She sued the city alleging the incident was caused by uneven pavement surfaces, which included large gaps between concrete slabs (up to 4 inches) and height differentials of up to an inch. O’Neill’s case was dismissed on summary judgment at the trial court level. The Court of Appeals reversed the trial court and remanded the case back for further proceedings.

Our courts generally hold municipalities to the same negligence standard as private individuals. Keller v. City of Spokane, 146 Wn.2d 237, 242-43, 44 P.3d 845 (2002). Whether a municipality owes a duty in a particular situation is a question of law, and, as an individual, a municipality owes a general duty of care of a “reasonable person under the circumstances.’” Keller, 146 Wn.2d 243 (quoting DAN B. DOBBS, THE LAW OF TORTS § 228, at 580 (2000)). A municipality owes a duty to build and maintain roadways in a condition that is “reasonably safe for ordinary travel.” Keller, 146 Wn.2d at 249. But a municipality does not, however, insure against an accident or guarantee the safety of travelers on its roads, nor is it required to “maintain streets in ideal traveling condition, nor to guard the traveling public from such normal hazards as small depressions in the surface of the roadway or ordinary puddles of water in the street.” Owens v. City of Seattle, 49 Wn.2d 187, 191, 299 P.2d 560 (1956). A city is not required to maintain its roadways in a perfect condition, and the fact that there are potholes and defects in roadways are matters widely known to the public. McKee v. City of Edmonds, 54 Wn. App. 265, 268, 773 P.2d 434 (1989).

An issue of first impression for the Court was whether bicycle travel constituted “ordinary travel” and use of a roadway.

The City argued it did not owe a duty to keep roads safe for bicyclists. The Court of Appeals disagreed holding cycling is a mode of “ordinary travel,” and therefore, the City has a duty to maintain its roads for bicycle travel. Bicycles are an integral part of Washington’s “statewide multimodal transportation plan,” RCW 47.06.100. Further, bicycles are subject to the same traffic laws as motorists and other vehicles when traveling on public roadways. Every person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this chapter, except as to special regulations in RCW 46.61.750 through 46.61.780 and except as to those provisions of this chapter which by their nature can have no application. RCW 46.61.755(1).

RCW 46.61.770 regulates where cyclists may travel in the “normal flow of traffic,” which direction they must travel, and how they must ride on roadways “except on paths or parts of roadways set aside for the exclusive use of bicycles.” RCW 46.61.770. The WA Supreme Court has also recognized that bicycles are a mode of transportation. Camicia v. Howard S. Wright Const. Co, 179 Wn.2d 684, 317 P.3d 987 (2014).

The ramifications of this decision are significant. What may be “safe for ordinary travel” for a motor vehicle, may very well be quite hazardous for a cyclist. Cracks and pavement and uneven surfaces may be uncomfortable when you drive over them in your passenger car, but could be calamitous to a someone on a bicycle. It remains to be seen whether this case will be reviewed by the WA Supreme Court, but if it is not and the case stands, expect municipalities to have to start taking into account cyclist safety when maintaining their roadways.

Photo credit: ewan traveler, used under the Creative Commons license

Permalink to this entry

The Makers of Pokémon Go Face $5 Million Class-Action Lawsuit

Posted Wednesday, August 10, 2016 by Alice Noman

Pokemon GoThe popular new mobile game, Pokémon Go, has finally caused property owners to react with legal action. The proposed class action lawsuit was filed by a New Jersey man who claims the game’s developer places Pokéstops and Pokémon gyms on private property without the owner’s permission. Along with Niantic, Nintendo and The Pokémon Company are also named as defendants in the lawsuit.

The application works by using smartphone cameras and GPS to place Pokémon, Pokéstops and Pokémon Gyms on real world images and maps. The objective of the game is to find and capture the mythical creatures known as “Pokémon” by traveling to real-world locations. The game has reportedly resulted in players trespassing onto private property and chasing Pokémon in places like cemeteries and the Holocaust Museum.

The homeowner who filed the suit recounts strangers gathering outside his home with their mobile devices and at least five individuals asking permission to access his backyard to catch the Pokémon. The suit alleges nuisance through the invasion of one’s use and enjoyment of their land and unjust enrichment for the defendants receiving a benefit from the plaintiff’s property.

Jeffrey Marder of West Orange, New Jersey, filed the proposed class action lawsuit in Northern California’s U.S. District Court claiming the game’s developer, Niantic, “made unauthorized use” of his and other people’s properties by placing PokeStops and Pokemon Gyms – virtual meeting points key to playing the game – and thus encouraged “Pokemon Go’s millions of players to make unwanted incursions onto the properties” of him and others who may have been affected.

The game uses smartphones’ cameras and GPS capabilities to superimpose creatures known as Pokemon, as well as meeting points like PokeStops and Pokemon Gyms, over real-world imagery and maps. A player’s objective is to capture Pokemon by travelling around on foot.

Click here for a link to the full article, or see the link below:

http://abcnews.go.com/US/pokemon-creators-face-lawsuit-players-trespassing/story?id=41066863

For property owners who have faced similar problems, Pokémon Go allows you to request removal of a Pokéstop or Gym from your property. You simply fill out a form on the website and choose your reason for the removal request. The form can be found here, or see the link below:

https://support.pokemongo.nianticlabs.com/hc/en-us/requests/new?ticketformid=341148

Permalink to this entry

Pivotal Law Group, PLLC Pivotal Law Group, PLLC
47.6084840 -122.3330190
piv·ot·al
of vital or central importance; crucial