Please Don’t Kill Us — Tips To Help Car And Truck Drivers Avoid Destroying Motorcycles And Their Riders

It happened again yesterday.  Another dead biker because someone (this time a bus driver for Pete’s sake) apparently didn’t see the motorcyclist, pulled through a stop sign into the bike’s path, and caused a deadly accident.  And this week, I accepted representation of another motorcyclist who was hit by a vehicle that failed to yield from a stop sign, knocking him to the ground and sending him to the hospital with significant injuries.

I ride my motorcycle all over this city at all times of the day.  I don’t speed, I don’t ride like an idiot, and I slow down at every intersection to allow me more reaction time when a vehicle inevitably comes out in front of me.  I and the other riders I encounter on the road would like to get where we’re going without taking a detour to the emergency room or the morgue.  People in cars and trucks can help us realize that goal by following a few safety tips:

1.  Because of motorcycles’ small size, they can be easily missed in a car’s blind spots (door/roof pillars) or blocked by things outside a car (foliage, parked vehicles, fences, etc.)  When you think about it, observing and accounting for motorcycles is no different than watching our for pedestrians and bicycles.  All are hard to see and all usually come out on the wrong end of a collision with a vehicle.

2.  Here’s why so many people think bikers barrel around at 100 mph, even though no one I know does that ever.  Motorcycles’ small profiles creates an optical illusion that  makes them look farther away than they are.  When checking traffic to turn at an intersection or into (or out of) a driveway, predict a motorcycle is closer than it looks.  A good clue is when a motorcycle is traveling towards you with other motor vehicles.  If you wouldn’t pull out in front of the Ford Expedition bearing down on you, you should probably wait for the motorcycle next to it to pass too.  This optical illusion causes people to misjudge motorcycle speeds they think the bike’s father away, and thus covered the assumed distance in a short time period, thus indicating high speed.

3.  Motorcyclists often slow by downshifting or merely rolling off the throttle, thus not activating the brake light. Allow more following distance, say 3 or 4 seconds. At intersections, predict a motorcyclist may slow down without visual warning.  Personally, I don’t do this all the time because I want the traffic behind me to see my brake light come on.

4.  Motorcycles have difficulty with some types of road conditions that would not bother a car or truck that has at least four wheels.  Gravel, rocks scattered on the surface from an adjacent gravel road, driveway, or the gravel bed on the roadside, repaving that has stripped a road down to its subsurface, thick mud or dirt that has pooled in an intersection because of rain runoff, and wet surfaces are examples of road conditions that pose a challenge for a biker trying to stay balanced and upright on two wheels that may not be appreciated by four-wheelers.  So be careful following a motorcycle in such conditions and don’t tailgate because the rider may be traveling slower than you wish.  Or the bike may suddenly slow down because a dump truck scattered gravel all over a blacktop road and the biker has about three seconds warning before coming onto the gravel.  Surfaces that make it hard to balance a bike can also make it hard to stop one, so be aware that a motorcycle may not be able to stop as fast as a motor vehicle.

Joint Versus Separate Employers Under Federal Overtime Law

Recent news reports indicate that local fire departments are under investigation by the United States Department of Labor, possibly for overtime violations related to the joint employer rule under overtime law.  Under federal law, someone can be an employee of separate and distinct employers; each of those employers can count the employee’s hours separately for purposes of determining whether the 40-hours per week threshold has been exceeded.  So you can work your regular full-time day job, and then pick up some extra hours at night working part-time somewhere else for a different employer, without your full-time employer having to count those part-time hours as overtime work.  That’s assuming the two are separate and distinct employers.

A problem occurs when those two employers aren’t separate and distinct, but are instead considered “joint employers.”  In that instance, all the hours worked for the joint employers are combined to determine whether the employee has exceeded forty total working hours in a given week for the joint employers.  If so, then the joint employers owe the joint employee overtime.

This may be what’s happening with the local fire departments.  Municipalities sometimes enter into agreements with each other to share resources, such as fire and rescue.  If that makes the fire departments “joint employers,” then all hours worked for both municipalities are combined for overtime purposes, rather than dividing working time between the two.  It seems that full-time firefighters for one city are working part-time, on-call hours for a different city under one of those sharing agreements.  The question is whether those working hours have to be combined, thus exposing both cities to potential overtime responsibility.

Determining whether two employers are a joint employer can be difficult.  The Department of Labor considers all of the facts in a particular case.  If the facts establish that two or more employers are acting entirely independently of each other and are completely disassociated with respect to the employment of a particular employee, they’ll be considered separate and distinct employers and the employee’s working hours will not be combined.  But if the facts establish that employment by one employer is not completely disassociated from employment by the other employer, then there may be joint employment and all of the employee’s working hours must be combined for overtime purposes.

The courts have devised an “economic realities” test to determine whether two employers are separate and distinct or instead joint.  Courts look at numerous factors in deciding whether joint employment exists, including whether the alleged joint employer had the power to hire and fire the employees, supervised and controlled employee work schedules or conditions of employment, determined the rate and method of payment, and maintained employment records.  The economic realities test is a fluid concept; different courts apply different standards and some standards apply to certain situations but not others.  But the above factors are the main ones.

Overtime cases require legal analysis of federal statutes, U.S. Department of Labor regulations, and court decisions.  I can help you with any employment law or labor law questions that you might have.  Please feel free to contact me for a free initial consultation about employment law or labor law.

Service Animals In Public Places — When Must They Be Accommodated?

In an earlier post I wrote about the rules for service animals on airplanes.  But what about service animals in public or commercial places, like restaurants and stores?  Under what circumstances must a business allow service animals inside to avoid a business practices claim?

This issue is governed by the Americans With Disabilities Act (ADA).  Businesses must follow rules that the United States Department of Justice issues about ADA compliance.  The DOJ has responsibility for implementing the provisions of the ADA.  Generally, businesses must permit service animals to accompany people with disabilities in all areas where members of the public are allowed to go.

The starting question is — What is a service animal?  The DOJ now only recognizes dogs and miniature horses as service animals.  Usually, a service animal is a dog that is individually trained to do work or perform tasks for people with disabilitiesService dogs are working animals, not pets.  The work or task a dog has been trained to provide must be directly related to the person’s disability.  Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.

The requirements for service animals in public or commercial establishments have been broadly written to allow flexibility for all the various situations that may arise with service animals.  A one-size-fits-all approach would not work and would be impossible to apply to different types of establishments and different types of disabilities.  The only real constant is the fact that, under federal law, most service animals will be dogs.

The ADA requires state and local governments, businesses, and nonprofit organizations that serve the public generally to allow service animals to accompany people with disabilities in all areas of the facility where the public is normally allowed to go.  A service animal must be harnessed, leashed, or tethered, unless these devices interfere with the service animal’s work or the individual’s disability prevents using these devices.  In that case, the individual must maintain control of the animal through voice, signal, or other effective controls.

A person with a disability cannot be asked to remove his service animal from the premises unless: (1) the dog is out of control and the handler does not take effective action to control it or (2) the dog is not housebroken. When there is a legitimate reason to ask that a service animal be removed, staff must offer the person with the disability the opportunity to obtain goods or services without the animal’s presence.  Establishments that sell or prepare food must allow service animals in public areas even if state or local health codes prohibit animals on the premises.  People with disabilities who use service animals cannot be isolated from other patrons, treated less favorably than other patrons, or charged fees that are not charged to other patrons without animals. In addition, if a business requires a deposit or fee to be paid by patrons with pets, it must waive the charge for service animals.

When it is not obvious what service an animal provides, only limited inquiries are allowed. Staff may ask two questions: (1) is the dog a service animal required because of a disability, and (2) what work or task has the dog been trained to perform. Staff cannot ask about the person’s disability, require medical documentation, require a special identification card or training documentation for the dog, or ask that the dog demonstrate its ability to perform the work or task.  Allergies and fear of dogs are not valid reasons for denying access or refusing service to people using service animals. When a person who is allergic to dog dander and a person who uses a service animal must spend time in the same room or facility, for example, in a school classroom or at a homeless shelter, they both should be accommodated by assigning them, if possible, to different locations within the room or different rooms in the facility.

Gree Recalls 12 Brands of Dehumidifiers Due to Serious Fire and Burn Hazards; More Than $2 Million in Property Damage Reported

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

Dehumidifiers

Hazard:

The dehumidifiers can overheat, smoke and catch fire, posing fire and burn hazards to consumers.

Gree toll-free at (866) 853-2802 from 8 a.m. to 8 p.m. ET Monday through Friday, and on Saturday from 9 a.m. to 3 p.m. ET, or online at www.greeusa.com and click on Recall for more information.

Incidents/Injuries

The firms have received reports of 165 incidents, including 46 fires and $2.15 million in property damage. No injuries have been reported.

 

Remedy

Consumers should immediately turn off and unplug the dehumidifiers and contact Gree to receive a full refund.

Sold at

AAFES, HH Gregg, Home Depot, Kmart, Lowe’s, Menards, Mills Fleet Farm, Sam’s Club, Sears and other stores nationwide and in Canada, and online at Amazon.com and Ebay.com, from January 2005 through August 2013 for between $110 and $400.

Importer

Airwell of France; CNA of Wood Dale, Ill.; Danby of Ontario, Canada;  De’Longhi of Italy; Frigidaire, of Charlotte, N.C.; Gree USA Sales Ltd. of City of Industry, Calif.; IRP of Pineville, N.C.; MJC America Ltd. dba Soleus International Inc. of Walnut, Calif.; and Sunrise of Quebec, Canada.

Manufacturer

Gree Electric Appliances, of China

Manufactured in

China

Description

This recall involves 20, 25, 30, 40, 45, 50, 65 and 70-pint dehumidifiers with brand names Danby, De’Longhi, Fedders, Fellini, Frigidaire, Gree, Kenmore, Norpole, Premiere, Seabreeze, SoleusAir and SuperClima.  Recalled model numbers and date codes are listed below. The brand name and the pint capacity are printed on the front of the dehumidifier. The model number and date code are printed on a sticker on the back, front or side of the unit. The dehumidifiers are white, beige, gray or black plastic and measure between 19 and 24 inches tall, 13 and 15 inches wide, and 9 and 11 inches deep.

 

SoleusAir
Model Number Capacity         Date code range
CFM-25E 25-pint All units
CFM-40E 40-pint All units
DP1-50-03A 50-pint 032610
GL-DEH-30-1 30-pint 1211 through 0612
GL-DEH-45-2 45-pint 1211 through 0612
GL-DEH-50-2L2 50-pint 1211 through 0612
GL-DEH-50-2Q2 50-pint 1211 through 0612
GL-DEH-70-2S2 70-pint 1211 through 0612
GL-DEH-70P-2S2 70-pint 0112 through 0612
GM-DEH-30M-1L2 30-pint 010512 through 061412
GM-DEH-30M-1R2 30-pint 010512 through 061412
GM-DEH-45-1 45-pint 122511 through 062112
GM-DEH-70-1S2 70-pint 010512 through 062112
SG-DEH-25-4 25-pint 032711 through 081712
SG-DEH-30-2 30-pint 032711 through 050712
SG-DEH-30B-1 30-pint 011210 through 041310
SG-DEH-30M-1 30-pint 010510 through 071512
SG-DEH-30M-1A 30-pint 121510 through 111011
SG-DEH-30M-1L2 30-pint 010510 through 071512
SG-DEH-30M-1R2 30-pint 010510 through 071512
SG-DEH-45-1 45-pint 010610 through 071512
SG-DEH-45-1A 45-pint 121510 through 111011
SG-DEH-45-2 45-pint 032711 through 050712
SG-DEH-50-2 50-pint 010712 through 010712
SG-DEH-70-1 70-pint 010610 through 071512
SG-DEH-70-1A 70-pint 121510 through 111011
SG-DEH-70-2 70-pint 032711 through 050712
SG-DEH-70-2S2 70-pint 032711 through 050712
Seabreeze
Model number Capacity Date code range
DH450S 50-pint All units
DH470S 70-pint All units
Gree
Model number   Capacity         Date code range   
13-06090 30-pint All units
13-06091 45-pint All units
13-06092 50-pint All units
13-06093 70-pint All units
GDN20AH-K4EAB1A 20-pint All units
GDN20AH-K5EBB3A 20-pint All units
GDN30AE-A3EBA8A 30-pint All units
GDN30AH-A4EBB1A 30-pint All units
GDN40AH-A4EBB1A 40-pint All units
GDN45AH-A3EBB2A 45-pint All units
GDN50AF-A3EBA8A 50-pint All units
GDN50AF-A3EBA8B 50-pint All units
GDN70AF-A3EBA8A 70-pint All units
GDN70AF-A3EBB3A 70-pint All units
GDN70AI-A3EBB2A 70-pint All units
GDNE30AEBA1A8A 30-pint All units
GDNE40AEBA1A8A 40-Pint All units
GDNE50AFBA1A8A 50-pint All units
GDNE65AFBA1A8A 65-pint All units
Kenmore
Model number Capacity         Date code range        
407.52301210 30-pint 2012-04 through 2012-09
407.52501210 50-pint 2012-04 through 2012-09
407.52701210 70-pint 2012-04 through 2012-09
407.52702210 70-pint 2012-04 through 2012-08
Norpole
Model number Capacity         Date code range
NPDH30PG 30-pint All units
Frigidaire
Model number Pint capacity Date code range
FDB30R1 30-pint 01/07 through 09/08
FDB50R1 50-pint 01/07 through 09/08
FDB70R1 70-pint 01/07 through 09/08
FDD25S1 25-pint 01/07 through 09/08
FDF50S1 50-pint 01/07 through 09/08
FDF70S1 70-pint 01/07 through 09/08
FDL30R1 30-pint 01/07 through 09/08
FDL50R1 50-pint 01/07 through 09/08
FDL50S1 50-pint 01/07 through 09/08
FDL70R1 70-pint 01/07 through 09/08
FDL70S1 70-pint 01/07 through 09/08
FDM30R1 30-pint 01/07 through 09/08
FDR30S1 30-pint 01/07 through 09/08
Danby or Premiere
Model number Capacity Date code range   
DDR3011 30-pint All units
DDR30P 30-pint All units
DDR4511 45-pint All units
DDR45P 45-pint All units
DDR6511 65-pint All units
DDR65CHP 65-pint All units
De’Longhi or SuperClima
Model number           Capacity         Date code range
DDSE30  30-pint All units
DDSE40 40-pint All units
DG50 50-pint All units
Fedders
Model number Capacity         Date code range
FEDH-MAH030-C15 30-pint All units
FEDH-MAH070-C15 70-pint All units
Fellini
Model number Capacity Date code range
13-06030 50-pint All units
13-06031 70-pint             All units

Municipal Immunity For Injuries Or Death During Recreational Activities

There’s been recent talk in Des Moines about the city’s attempts to immunize itself from sledding injuries.   Currently, towns, cities, and counties have no statutory immunity from sledding-related claims.  But they do have immunity from certain types of personal injury or wrongful death claims involving other recreational activities.
One immunity protects municipalities from claims that a recreational facility (for example, a skate board ramp in a park) was improperly designed.  That immunity covers “any claim based upon or arising out of a claim of negligent design or specification, negligent adoption of design or specification, or negligent construction or reconstruction of a public facility designed for purposes of skateboarding, in-line skating, bicycling, unicycling, scootering, river rafting, canoeing, or kayaking that was constructed or reconstructed, reasonably and in good faith, in accordance with generally recognized engineering or safety standards or design theories in existence at the time of the construction or reconstruction.”  You’ll note that this immunity applies regardless of what the injured person was doing in the facility.  So if you decide to use a skateboard ramp in a city park as some sort of jogging/climbing facility and hurt yourself, the municipality may have immunity even though you weren’t using the skate ramp for its intended purpose.
You can see that there are a few ways to try to argue around the immunity for recreational facilities.  You could claim that the facility wasn’t designed for one of the specified types of recreational activities.  Or you could contend that the recreational facility wasn’t created within existing standards or theories.
A related immunity focuses on the injured person’s activities, rather than the facility where the injury occurred:  “Any claim based upon or arising out of an act or omission of an officer or employee of the municipality or the municipality’s governing body by a person skateboarding, in-line skating, bicycling, unicycling, scootering, river rafting, canoeing, or kayaking on public property when the person knew or reasonably should have known that the skateboarding, in-line skating, bicycling, unicycling, scootering, river rafting, canoeing, or kayaking created a substantial risk of injury to the person and was voluntarily in the place of risk.  The exemption from liability contained in this subsection shall only apply to claims for injuries or damage resulting from the risks inherent in the activities of skateboarding, in-line skating, bicycling, unicycling, scootering, river rafting, canoeing, or kayaking.” 
This immunity for recreational activity injuries applies regardless of where the listed recreational activities occurred.  So a skateboarder who uses the stairs and railings of a park pavilion will have to get around this immunity even though the person wasn’t on a skate ramp.   Of course, if the injuries occurred on a skate ramp, then the skateboard would encounter both types of immunity — one for recreational facilities (discussed above) and one for recreational activities.
Again, there are ways around the immunity for recreational activities.  It only applies to certain recreational activities.  There has to be an assumption of and knowledge of risk.  And the injuries have to be caused by the “risks inherent” in the recreational activity.

Service Animals On Commercial Air Flights

A recent incident on a U.S. Airways flight involving a disabled veteran and his service dog has brought attention to the issue of service animals on  commercial flights.  The veteran was ejected from the flight because he refused to put his service dog on the floor in front of him.  Instead, he insisted that the dog be allowed to sit on an empty seat next to him.  This is a rare publicized episode of a business practices area of disability discrimination law (service animals on commercial flights) that has received scant attention from the courts.

A few starting points.  First, this is not a issue under the Americans With Disabilities Act (ADA).  Rather, this situation is covered by the federal Air Carrier Access Act (ACAA), which is interpreted by the U.S. Department of Transportation.  Second, although a moot point here because the passenger’s service animal was a dog, beginning March 15, 2011 the U.S. Department of Justice issued new rules under the analogous ADA that restrict the definition of “service animal” to dogs and miniature horses.  If the DOT follows suit in revising the ACAA’s rules, eventually only dogs and miniature horses will be allowed on planes as service animals, assuming there’s even a way to get a miniature horse on an airplane and keep it somewhere in the cabin.

So let’s focus on a common type of service animal, dogs.   The DOT’s rules currently state that a service animal is (i) an animal individually trained and which performs functions to assist a person with a disability; (ii) an animal that has been shown to have the innate ability to assist a person with a disability, e.g., a seizure alert animal; or (iii) an emotional support animal.  Airlines must permit dogs and other service animals used by passengers with a disability to accompany the passengers on their flights.  In addition, such passengers must be allowed to have their service animal accompany them to their assigned seat and remain there as long as the animal does not obstruct the aisle or other areas that must remain unobstructed for safety reasons.  Moreover, disabled passengers must be able to keep their service animals with them unless the animal poses a direct threat to the health or safety of others or presents a significant threat of disruption to the airline service in the cabin.

There are numerous decisions and considerations that are implicated by service animals on an aircraft.  Too many to address in a single post.  The main questions are (1) Is the passenger with the animal disabled?  (2) Is the animal a service animal or a pet?  (3) Can the service animal be transported in the aircraft’s cabin?

You might wonder why this is even an issue since most airlines allow dogs to travel with passengers in the aircraft cabin.  It has to do with the special considerations given to passengers with service dogs.  DOT rules require that the dog fly free, that the disabled passenger receive special seating consideration to accommodate the dog, and that the airline waive some requirements regarding when a dog can’t be transported in the passenger cabin (for example, size or weight restrictions).  Unfortunately, some people who aren’t disabled or who don’t have a true service animal lie in an effort to gain one or more of those special considerations to which they normally wouldn’t be entitled.

So who was right in the dispute between U.S. Airways and the disabled veteran regarding placement of his service dog?  Probably U.S. Airways.  To my knowledge, no federal court has ever issued a decision on whether a disabled passenger must be allowed to keep their service animal on an adjacent unoccupied seat.  But the DOT’s policy guidance concerning service animals in air transportation suggests that airlines can insist that service animals be placed in front of, not on a seat next to, a disabled passenger.  The DOT’s policy guidance specifically references placing service animals on the floor in  front of the passenger.  It also notes that airlines are not required to furnish more than one seat per ticket in order to accommodate a service animal, which implies that if a disabled passenger wants the service animal on the adjacent seat and the airline allows that, the airline can ask the disabled passenger to pay for the second seat.

Please feel free to contact me if you have any questions about service animals under the Americans With Disabilities Act or the Air Carrier Access Act.

Target Recalls Threshold Floor Lamps Due to Fire and Shock Hazard

The U.S. Consumer Product Safety Commission has announced a voluntary recall of the following consumer product because the product could cause personal injuries or death due to product liability. Consumers should stop using recalled products immediately unless otherwise instructed.

Name of product:

White 2-Bulb Floor Lamp

Hazard:

The lamp can short when a standard one-way bulb is fully tightened in the lamp’s three-way socket, posing a fire and shock hazard to consumers.

Consumer Contact:

Target at (800) 440-0680 from 7 a.m. to 6 p.m. CT Monday through Friday or online at www.target.com and click on Product Recalls under the Help tab, then click on Home & Kitchen for more information.

Description

This recall includes white plastic, turned-spindle design floor lamps with white fabric drum lamp shades and two 3-way pull-chain switches.  Lamp is illuminated by two 3-way 100-watt or 29-watt CFL bulbs and stands approximately 60 inches tall.  The model number PL1071 is located on a sticker on the bottom of the lamp.

Incidents/Injuries

Target has received six reports of short circuiting which have resulted in fires, minor property damage and two consumers being shocked.

Remedy

Consumers should immediately stop using the recalled lamp, unplug it and return it to any Target store for a full refund.

Sold exclusively at

Target stores nationwide and Target.com from September 2012 through May 2013 for about $70.

Importer

Target Corp. of Minneapolis, Minn.  

Manufacturer

J. Hunt & Company of Bono, Ark.

Manufactured in

China

Source:  http://www.cpsc.gov/en/Recalls/2013/Target-Recalls-Threshold-Floor-Lamps/