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Archive for January, 2018

Landowner Scope of Duty

Posted on: January 11th, 2018

By: Owen T. Rooney

The California Supreme Court recently issued an opinion that limits the scope of duty and liability in premises liability cases. In  Vasilenko v. Grace Community Church, plaintiff was struck by a car as he crossed a public street, at night in the rain, between the main premises of a church and the church’s overflow parking area. Plaintiff alleged that the church owed him a duty of care to assist him in safely crossing the public street. The court ruled “that a landowner does not have a duty to assist invitees in crossing a public street when the landowner does no more than site and maintain a parking lot that requires invitees to cross the street to access the landowner’s premises, so long as the street’s dangers are not obscured or magnified by some condition of the landowner’s premises or by some action taken by the landowner.”

The court was motivated in part by the lack of control the church has over the public roadway, and in part by “the possibility that finding a duty in this case will cause some or perhaps many landowners to stop providing parking…. By providing parking, a landowner may decrease its invitees’ risk of injury from other dangers of the road as compared to invitees finding their own parking on the streets.”

This case should limit liability in cases where plaintiff tries to stretch the landowner’s “property lines” to conditions off the property.

If you have any questions or would like more information, please contact Owen Rooney at [email protected].

California’s Protecting Immigrant Worker Protection Act (AB-450)

Posted on: January 11th, 2018

By: Layli Eskandari Deal

On October 5, 2017 Governor Brown signed AB-450 into law further taking California into the federal immigration landscape.  The new State law took effect on January 1, 2018.

Here are some key elements:

  1. Employers no longer can voluntarily grant access to nonpublic areas of the company to any immigration enforcement agent.  Access can only be granted when presented with a judicial warrant.
  2. The new law does not restrict Department of Homeland Security from providing a Notice of Inspection (NOI) to an employer demanding the employer’s I-9 forms within 3 days of service.  The employer must honor the NOI.
  3. If a NOI is received, the employer must post a notice at the worksite, in the language the employer normally uses to communicate information with employees, within 72 hours of receipt.  The notice must communicate the following:
    1. [Name of Issuing authority] has issued a Notice of Inspection and will be conducting an inspection of Employee Form I-9s or other employment records;
    2. Date of receipt of NOI
    3. The “nature of the inspection” – to the extent known by the employer.
  4. Give notice to the “employee’s authorized representative” (any collective bargaining representative), if any, within 72 hours of the receipt of the NOI.
  5. Provide a copy of the NOI to any “affected employee” upon reasonable request.
  6. Notify “affected employees” within 72 hours of the agency’s inspection results as well as written notice of the obligations of the employer and employee arising from the inspection.
  7. Employers are prohibited from reverifying the employment eligibility of any current employee at a time or manner not required by law or that would violate employer’s E-Verify Memorandum of Understanding.
  8. Penalties: First offense – $2,000 -$5,000 / each subsequent offense – $5,000-$10,000.

We expect that the Department of Homeland Security will conduct more inspections this year.  It would be beneficial for California employers to have policies in place to handle these situations if they should arise.

For additional information related to this topic and for advice regarding how to navigate U.S. immigration laws you may contact Layli Eskandari Deal of the law firm of Freeman Mathis & Gary, LLP at (770-551-2700) or [email protected].

Puff, Puff, Veto!

Posted on: January 10th, 2018

By: Jason C. Dineros

This past Thursday, Attorney General Jeff Sessions rescinded the Obama-era’s relaxations for federal prosecutors of marijuana enforcement. This comes only four days into California’s open recreational use market, and potentially halts what has grown into a niche legal practice as well as a concerted training effort among hospitality operators over the almost five years the federal enforcement relaxations have been in place.

The Obama Administration’s federal enforcement relaxations for marijuana use in 2013, brought with it the development of a viable market industry from what was previously looked upon as taboo—akin to “that stoner stage you went through in high school, but grew out of.” As start-ups were popping up wanting to be frontrunners in an industry that had as much anticipation as whiskey distilleries in the years that followed prohibition, so did the need for legal consultation and representation.  No longer was the idea of marijuana dispensaries becoming as common as corner liquor stores still a far too laughable dream (or overly paranoid nightmare, depending on your take); and concepts such as edible bakeries, “weed lounges,” and cannabis-friendly restaurants were likewise materializing into reality.

But how does an attorney provide advice regarding the sale and distribution of a product that is illegal under federal law, but for all intents and purposes, permitted in 29 different states? Well the fallback rule that developed under the Obama Administration’s relaxations, at least from an ethical perspective, was that providing legal services to the cannabis industry was permissible so long as it did not violate state law.  And with this came an influx in the practice of cannabis law in 29 of the 50 states.

Further expanding to the social aspect of recreational marijuana, while any experienced bartender has likely taught or learned how and when to cut off an overly-imbibed guest, what protocols are in place for training “budtenders”? And even more importantly, for hospitality operators engaged in operations across different states, how can there be any uniform standard operating procedures when what is a legally viable source of potential revenue in one state, can expose the business to significant fines and potential closure in another?  Simply put, until the states begin to react one way or another to Attorney General Sessions’ heightened federal enforcement regulations, the cannabis industry remains one of the most potentially lucrative, risky, and unnavigated industries still in its infancy among the entrepreneurs, attorneys, and hospitality operators involved.

For further information or for further inquiries involving professional liability, commercial liability, or hospitality law, you may contact Jason C. Dineros, the Chair of the Hospitality Law Practice Team of Freeman Mathis & Gary, LLP, at [email protected].

Self-Driving Vehicles and their Anticipated Impacts

Posted on: January 9th, 2018

By: Courtney Mazzio

Self-driving vehicles are quickly bursting onto the scene and federal regulatory bodies are ever-evolving policies with an effort caught in a tug of war between accelerating the development of the technology and encouraging safety. In September 2016 under the Obama administration, a policy addressing the development of self-driving vehicles was generated by the Department of Transportation, with its primary focus being safe development with some wiggle room for regulations to keep pace with the fast development of the technology. Currently, this policy is being re-worked, and the new guidelines scale back some of the recommendations previously made. For example, the new guidelines provide that manufacturers are encouraged, but not required, to engage in self-assessments, which will not be subject to federal approval. Thus, there is some concern that non-binding changes such as these could result in conflicting state laws.

Of further note is the conversation of whether and how the self-driving vehicle will mesh with pre-existing mandates on automobile safety standards. While Congress is starting to consider federal legislation that will regulate the roll out of self-driving vehicle systems, this is only the beginning. Right now, the development of the self-driving vehicle technology and use is only as limitless as the current infrastructure designed to regulate human-operated motor vehicles.

With so much in flux, one thing is for certain: the advent of the driverless car system is sure to dramatically change the landscape of driving regulations and motor vehicle liability in the years to come. Rather than actions that resound in negligence, actions will begin to take on the character of products liability. And rather than litigation in which the operator of the vehicle is the primary, if not only defendant, such litigation will involve vehicle designers and manufacturers responsible for the vehicle’s creation and defects. Trying to determine where liability ultimately lies in such actions is something that courts will certainly grapple with in this new age.

If you have any questions or would like more information, please contact Courtney Mazzio at [email protected].

Georgia Court of Appeals Upholds Statute of Limitations Defense in Exterior Siding Case

Posted on: January 9th, 2018

By: Jan S. Sigman

In Georgia, a negligent construction action must be brought within four years from when the right of action accrues. The right of action accrues when the plaintiff first could have maintained the action to a successful result, which means substantial completion of the project in original construction cases or the sale of the property in improvement cases.

O.C.G.A. § 9-3-30(b)(1) carves out a specific exception to this general rule. If the damage is due to the manufacture, design or installation of synthetic exterior siding, then the right of action accrues “when the damage to the dwelling is discovered or, in the exercise of reasonable diligence, should have been discovered, whichever first occurs.” The Georgia Supreme Court has interpreted this exception to require the plaintiff to bring an action within four years of learning of potential problems with exterior siding. Scully v. First Magnolia Homes, 279 Ga. 336 (2005).

Recently, the Court of Appeals reaffirmed the Scully rule. In Demere Marsh Assocs., LLC v. Boatright Roofing & Gen. Contr., Inc., 343 Ga. App. 235 (2017), a homeowner’s association sued a contractor and a subcontractor for negligent design and installation of vinyl siding following water damage in multiple residential buildings. The contractor and subcontractor moved for summary judgment, arguing certain claims were time barred. The trial court disagreed, holding there was a factual dispute as to whether the homeowner’s association knew or should have known of siding problems between 2008 and 2012, when the lawsuit was filed.

The Court of Appeals reversed the trial court’s denial of summary judgment and, citing Scully, held the statute of limitations began to run when the homeowner’s association, “through the exercise of reasonable diligence, should have discovered that their [buildings were] being damaged due to defective synthetic … siding.” The Court of Appeals pointed to maintenance records showing water intrusion complaints dating back to 2004 and a report from a hired consultant in 2007, which identified improperly installed vinyl siding. The Court of Appeals concluded the statute of limitations began to run in 2007 and expired in 2011, well before the 2012 suit was file.

The Boatright case confirms Georgia courts will uphold statute of limitations defenses in construction cases, even those involving the exterior siding exception. Jan Seanor Sigman is licensed to practice in Georgia and represents contractors and design professionals in all construction matters including contract negotiations, payment disputes and delays, contract terminations, and defective work. If you have any questions or would like more information, please contact Jan Seanor Sigman at [email protected].