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The Pivotal Law Blog

Washington legislature considers law to ban holding phones while driving

Posted Thursday, March 9, 2017 by Pivotal Law Group

In an effort to reduce distracted driving, the Washington State legislature is considering a law that would ban holding an electronic device like a cell phone while driving.

Republican Sen. Ann Rivers, the sponsor of the bill, called it a good public safety measure that repeals the current statute “and replaces it with a much more simple and easier to enforce piece of law.”

Currently people are guilty of an infraction if they hold a phone to their ear while driving, or are caught text messaging.

Under the new measure, drivers would not be allowed to hold a cellphone, tablet or other electronic device in their hands while driving on a public roadway, including while being stopped in traffic. Things like holding a phone to text or use social media or watch a video would be illegal under this measure.

However, the bill would allow the use of a finger to activate or deactivate a function of a device, such as using Siri on the iPhone, and the use of a built-in touch screen control panel within a vehicle to control basic functions like the radio or air conditioning.

The Senate passed Bill 5289 on a 36-13 vote. That bill now heads to the House.

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

http://komonews.com/news/local/state-senate-votes-to-ban-holding-phones-while-driving

Phone

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Washington Supreme Court: Wrongful death claims can be time-barred before a person dies

Posted Wednesday, November 30, 2016 by Pivotal Law Group

GavelWhen a person dies because of the wrongful conduct of another, Washington law allows the decedent’s personal representative to file what’s called a “wrongful death action.” Certain limitations exist on wrongful death actions. For instance, if after suffering injuries that later resulted in death, the decedent settled a claim for damages against a wrongdoer, that settlement could prevent the personal representative from suing the same wrongdoer for wrongful death caused by those same injuries.

On October 6, 2016, in the hotly contested 5-4 decision of Deggs v. Asbestos Corp. Ltd., No. 91969-I, the Washington Supreme Court upheld another limitation on the scope of wrongful death actions: namely, that a wrongful death action is barred when the time period for filing the underlying personal injury claim has passed without a claim being made.

Deggs involved decedent Ray Sundberg, who had been exposed to asbestos for decades in various dockyards and lumberyards. Between 1998 and 2000, he was diagnosed with lymphoma, pleural disease, and asbestosis. Around that same time, he filed a personal injury suit against some companies who had exposed him to asbestos, which resulted in multiple settlements as well as a jury verdict. Nine years later, Mr. Sundberg died. Shortly after his death, his personal representative Judy Deggs brought a wrongful death action, primarily against defendants who had not been sued in Mr. Sundberg’s personal injury action.

Under the 1930s cases of Calhoun v. Wash. Veneer Co., 170 Wash. 152, 15 P.2d 943 (1932), and Grant v. Fisher Flouring Mills Co., 181 Wash. 576, 44 P.2d 193 (1935), such a claim is time barred. In Calhoun, the Court held a “claim for damages accrued, if at all, at the time of the injury.” In Grant, the Court noted “at the time of death there must be a subsisting cause of action in the deceased.”

Ms. Deggs argued the Court should overrule Calhoun and Grant as bad law to the extent they barred a wrongful death action like hers. Under the case law that evolved since Calhoun, a wrongful death action does not accrue, i.e. come into existence, until after a person has died and the personal representative discovered or should have discovered the cause of action. To bar such a claim before it even exists, in the absence of clear legislative authority directing such an outcome, would be unjust and contrary to the intervening law.

While the four-Justice dissent agreed with Ms. Deggs, the five-Justice majority did not. The majority held that although Calhoun was clearly wrong about when a wrongful death cause of action accrues, Grant’s exception to the accrual rule – that “there must be an existing cause of action in the deceased at the time of death” – was not undermined by intervening law and was not clearly harmful.

The outcome of this case reinforces the importance of acting promptly to preserve your rights. If you believe you have a case, please feel free to contact us.

Photo credit: My Trusty Gavel, used under the Creative Commons license.

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ACEP recommendations for a safe Thanksgiving

Posted Tuesday, November 22, 2016 by Pivotal Law Group

ThanksgivingThanksgiving is all about family, friends, food, and fun. To help keep it that way, the American College of Emergency Physicians (ACEP) has published recommendations for a safe holiday. Those recommendations address many common issues, including:

  • Food Preparation Safety: Take care when handling uncooked meat, including washing hands and food surfaces, keeping uncooked meat separate from other foods, and cooking all foods to the proper temperature.

  • Common Injuries: The ACEP highlights two common Thanksgiving injuries – cuts and burns – and recommends for both not to rush when in the kitchen. They also provide a “special note of caution” if you plan to deep fry a turkey.

  • Driving Safety: Drive carefully, obeying all traffic laws, don’t text or use a phone while driving, always wear your seatbelt, and be rested while driving.

  • Eating Safely: Don’t eat too much or too quickly, take breaks to allow your body to process, and attend to any known medical conditions (for example, those that require prescription medications or special dietary restrictions).

  • Injury Prevention: If you engage in a traditional “Thanksgiving game” (football or the like), be careful not to overdo it, especially if doing so after the meal, or if you’re not used to regular physical activity.

For more details on the ACEP’s recommendations, click here or see the link below:

http://newsroom.acep.org/2016-11-14-Avoid-a-Trip-to-The-ER-This-Thanksgiving

Photo credit: turkey, used under the Creative Commons license.

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KIRO's Jesse Jones investigates a Seattle tree ordinance impacting homeowners, interviews Pivotal's Chris Thayer

Posted Monday, November 14, 2016 by Christopher L. Thayer

Seattle Tree OrdinanceHundreds of thousands of Seattle trees are on city property but are the responsibility of homeowners to maintain, including removal when necessary. This is the case when a tree is on a city-owned right-of-way abutting private property and the city did not plant the tree.

This isn’t the kind of situation you want to ignore. According to lawyer Christopher Thayer, the abutting property owner is also on the hook for damages if something goes wrong.

“If there’s a big ol’ dead tree there and it falls on your neighbor’s garage, you may be facing some challenges financially,” said Thayer.

For a link to the full article with more information, including the city’s tree regulations and maps of the trees for which the city is responsible, click here or see the link below:

http://jessejones.com/story/jesse-investigates-a-seattle-ordinance-that-could-cost-homeowners-thousands/

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Cracks in Seattle Sidewalks: Who has the duty to repair? Who is liable when someone is injured?

Posted Thursday, November 10, 2016 by Christopher L. Thayer

PavementAccording to recent surveys, Seattle has over 2,100 miles of sidewalks and public pathways in the city. That covers about 75% of the blocks in Seattle. At one point or another, we have all noticed cracks or broken concrete in sidewalks, whether due tree roots, settlement, or just age. These defects can cause people to trip and fall, occasionally resulting in serious injury. Questions arise as to who has responsibility for repairing these sidewalks; and who might be liable in the event of an injury, the city or the landowner? The short answer is “both” – depending on the circumstances.

Maintenance. Under Washington law (statewide), the government has a duty to maintain its roadways and sidewalks in “reasonably safe condition for ordinary travel”. This requires the government entity to “ordinary care to provide against such dangers to the traveling public as may reasonably be anticipated having due regard to the character of travel, the incidental purposes for which the street, highway, or sidewalk may be lawfully used, and the nature of possible dangers at the point in question.” This includes a duty to eliminate or warn of hazards (through signage, etc.).

Under Seattle law, an adjoining landowner has the responsibility to maintain the sidewalks adjacent to their property. The adjacent landowner has responsibility to keep the sidewalk clear from vegetation overgrowth, and to make necessary repairs when the sidewalk becomes cracked or damaged. Seattle Municipal Code (SMC), Title 15.72 requires that Seattle property owners maintain the sidewalks adjacent to their property, fit and safe for public travel. However, state law provides for two exceptions for this responsibility. Abutting property owners shall not be charged with costs of reconstruction (1) if the costs are in excess of 50% of the valuation of the abutting property or (2) if the reconstruction is required to correct damage to the sidewalk that is the direct result of actions by the city or its agents or a direct result of the failure of the city to enforce its ordinances. RCW 35.69.020(2)-(3).

While the city generally has a right of way easement on sidewalks for public access, sidewalks in front of homes are not generally located on city property. Sidewalks are typically owned by the adjoining property owner, subject to the city’s easement rights.

Per Seattle Municipal Code: if any of the following conditions are present, then a sidewalk is considered damaged and in need of repair: a sidewalk that is cracked, a fault or other discontinuity in the sidewalk greater than ½ inch in the sidewalk, if any piece of the sidewalk can be moved with ordinary foot pressure, and/or if in the view of the Seattle Department of Transportation (SDOT) the grade or slope of the sidewalk creates a concern for safe pedestrian passage.

If SDOT determines a sidewalk requires repair, it will alert the property owner with a Street Use Warning. If the property owner fails to respond or repair the damage, SDOT will arrange for the necessary repairs to made, and assess the costs of the improvement against the abutting property owner, which shall become a lien upon the property and collected in the manner provided by law. SMC 15.72.040 and SMC 15.72.050. The City of Seattle has a website dedicated to sidewalk repairs, which has helpful information on this program:

Before making any repair(s) on their own, property owners must acquire the proper permit. A Street Use sidewalk repair permit allows the City to make sure that the sidewalk is being repaired properly and up to City standards. For example, if the repairs involved a tree causing damage to a sidewalk, the City might have an SDOT arborist evaluate the designated area before making any repairs. If the damage is the result of any city owned trees or sewer lines, then the City is responsible for the repairs. Therefore, it is important to know the cause of sidewalk’s damage before assessing responsibility. The City maintains a tree inventory for all City owned trees on their website:

Liability for Injury. So, the city of Seattle requires landowners to maintain sidewalks adjacent to their property, does this mean they are liable if someone is injured as a result of a crack in the sidewalk? Not necessarily. In Rivett v. Tacoma, the Washington State Supreme Court ruled a government may not transfer primary liability for damages caused by defective sidewalks to abutting landowners in the absence of independent acts of negligence by the landowner. Rivett v. Tacoma, 123 Wn.2d 573 (1994).

The city can be liable for injuries, if the city has breached its duty to “exercise reasonable care to keep their sidewalks in a condition that is reasonably safe for ordinary travel.” This includes a duty to safeguard against “inherently dangerous conditions”. In order to hold a municipality liable for unsafe conditions the city did not create, the municipality must have had notice of the potentially dangerous condition and a reasonable opportunity to correct it. “Notice” can be actual or constructive. Constructive notice arises if the condition has existed for such a period of time that the governmental entity should have known of its existence by the exercise of ordinary care. The notice requirement does not apply to conditions that are created by the governmental entity or its employees or to conditions that result from their conduct.

For adjacent landowners, their potential liability is defined as:

An [owner] [occupier] of property adjacent to a public sidewalk has a duty to exercise ordinary care in connection with the use of the property so as not to make, or create conditions that make, the adjacent way unsafe for ordinary travel or to cause injury to persons using the public sidewalk.

Washington Pattern Jury Instruction 135.01.

Pedestrians are allowed to proceed on a sidewalk with the presumption it is safe, and Washington law provides:

A person using a public sidewalk has a right to proceed upon the sidewalk with the assumption that it is safe for travel until he or she knows, or in the exercise of ordinary care should know, to the contrary.

Washington Pattern Jury Instruction 140.03.

Washington courts have specifically held an adjoining landowner may be liable for cracks in a sidewalk caused by a tree planted by the landowner. Rosengren v. City of Seattle, 149 Wn. App. 565 (2009). Specifically, the court held “an abutting landowner has a duty to exercise reasonable care that the trunks, branches, or roots of trees planted by then adjacent to a public sidewalk do not pose an unreasonable risk of harm to a pedestrian using the sidewalk.”

Conclusion. Seattle requires adjoining landowners to maintain the sidewalks adjacent to their property. Seattle has a program to deal specifically with sidewalk repair; in some circumstances the landowner may need to pay for the repairs. In the event of an injury to a third party, the landowner is only liable if they have done something to cause the (unsafe) condition, which includes allowing nearby tree roots (from a tree planted by the owner) to push up the sidewalk. Not all cracks on a sidewalk will be considered “unsafe” or “dangerous”. It is a case-by-case analysis and may depend many different factors. In most situations, it is most likely a “I know it when I see it” test.

Maintaining the vegetation on your property to minimize impact on the sidewalk would be prudent. Avoid planting trees with shallow roots near the sidewalk. The city remains liable if the sidewalk is not reasonably safe for ordinary use – and it has notice, constructive or actual, of the condition. A good resource for landowners in Seattle and their rights and duties is:

Photo credit: Pavement, used under the Creative Commons license.

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