Client Alert: Restaurant Owed Duty of Care to Driver Killed by Third-Party on Street Adjacent to Restaurant Parking Lot
January 07, 2015 —
R. Bryan Martin, Lawrence S. Zucker II, & Kristian B. Moriarty – Haight, Brown, & Bonesteel, LLPIn Annocki v. Peterson Enterprise, LLC, (Filed 11/14/2014, Certified for Publication 12/5/2014, No. B251434) the Court of Appeal, Second District, held a restaurant owed a duty of care to the driver of a motorcycle who died as a result of the negligent driving of a third party exiting the restaurant’s parking lot.
Decedent, Joseph M. Annocki, was driving his motorcycle on Pacific Coast Highway in Malibu, when it collided with the vehicle operated by Terry Allen Turner, who was exiting the parking lot of “Geoffrey’s" restaurant, which was owned and operated by the Defendant, Peterson Enterprise, LLC (“Peterson”).
The parents of the decedent (“Plaintiffs”) filed suit against Peterson, alleging Peterson failed to adequately staff the restaurant parking lot, which caused Turner to become confused and make an illegal left turn onto Pacific Coast Highway, thereby causing the accident that killed decedent. Plaintiffs further alleged Peterson knew, or should have known, that its parking lot and driveway were designed and in such condition as to create a danger of decreased visibility of the adjacent highway, and failed to adequately provide signage directing patrons that only right turns could be made onto Pacific Coast Highway.
Reprinted courtesy of Haight Brown & Bonesteel LLP attorneys
R. Bryan Martin,
Lawrence S. Zucker II and
Kristian B. Moriarty
Mr. Martin may be contacted at bmartin@hbblaw.com
Mr. Zucker may be contacted at lzucker@hbblaw.com
Mr. Moriarty may be contacted at kmoriarty@hbblaw.com
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OSHA Joins the EEOC in Analyzing Unsafe Construction Environments
June 26, 2023 —
Cameron S. Hill Sr. - Construction ExecutiveConsistent with the Equal Employment Opportunity Commission's (EEOC) Strategic Enforcement Plan (SEP)
published in January 2023, which noted an increased focus on the construction industry as it relates to harassment and discrimination issues within the workplace and around hiring and the advancement of minorities, the Occupational Safety and Health Administration (OSHA) is following suit. At the end of March 2023, OSHA leaders announced another arrow in their quiver: OSHA has new authority through its Wage and Hour Division to issue certifications supporting applications for "U" nonimmigrant status and "T" nonimmigrant status visas.
Reasoning that workers' immigration status, social inequalities or differences in culture can cause them to fear retaliation for identifying unsafe work environments and criminal activity, such as trafficking, murder, blackmail, extortion and other serious crimes, Assistant Secretary of Labor for Occupational Safety and Health, Doug Parker
stated, "The Occupational Safety and Health Administration's top priority is to ensure workers are safe and can exercise their rights, regardless of their demographic or immigration status. A key part of that mission is expanding our work to combat workplace inequities that can create hazards and affect vulnerable workers who are likely to be exploited or victims of crimes. Our vision extends beyond setting standards, inspecting workplaces and providing training. Becoming a visa-certifying agency gives us one more tool in our wide-ranging efforts to better protect workers and their rights on the job."
Reprinted courtesy of
Cameron S. Hill Sr., Construction Executive, a publication of Associated Builders and Contractors. All rights reserved.
Mr. Hill may be contacted at chill@bakerdonelson.com
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Are Untimely Repairs an “Occurrence” Triggering CGL Coverage?
November 16, 2020 —
Christopher G. Hill - Construction Law MusingsAll Class A commercial contractors in Virginia are required to have a minimum level of Commercial General Liability (CGL) coverage. As a general rule, this insurance is there for damage to property or persons arising from an “occurrence” that is covered by the policy. Many cases that are litigated relating to coverage for certain events under a CGL policy turn on the definition of “occurrence” and whether the event leading to a request for coverage constitutes an “occurrence.”
A recent case in Fairfax County, Virginia, Erie Insurance Exchange v. Spalding Enterprises, et al., is just such a case. In the Spalding Enterprises case, the Court considered the following scenario. A homeowner, Mr. Yen contracted with Spalding Enterprises to fix some fire damage at his home. Spalding promised the repairs would be complete in October of 2019. However, after Mr. Yen paid a $300,000.00 deposit, Spalding Enterprises stated that the work would not be completed until November of 2019. Yen then fired Spalding Enterprises and sued for breach of contract, constructive fraud, and violation of the Virginia Consumer Protection Act. Spalding Enterprises sought coverage from Erie Insurance for the claim and Erie denied coverage and sought a declaratory judgment that the events alleged in the Complaint by Mr. Yen did not fall under the definition of “occurrence” in the CGL policy held by Spalding Enterprises.
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The Law Office of Christopher G. HillMr. Hill may be contacted at
chrisghill@constructionlawva.com
DC Circuit Approves, with Some Misgivings, FERC’s Approval of the Atlantic Sunrise Natural Gas Pipeline Extension
December 02, 2019 —
Anthony B. Cavender - Gravel2GavelThe U.S. Court of Appeals for the DC Circuit decided the case of Allegheny Defense Project, et al. v. Federal Energy Regulatory Commission on August 2, 2019. In a Per Curiam opinion, the court denied petitions challenging the Commission’s orders permitting the Transcontinental Gas Pipe Line Company’s expansion of an existing natural gas pipeline which extends from northern Pennsylvania across the Carolinas into Alabama. The expansion is called the “Atlantic Sunrise Project.” In February 2017, FERC approved the expansion, and denied various petitions, filed by environmental organizations and affected landowners, who then challenged the decision in the DC Circuit. However, the court concluded, on the basis of the administrative record, that these challenges “cannot surmount the deferential standards of agency review and binding DC Circuit precedent.” Under the law, the Commission must consider whether the projected pipeline project meets a market need, and whether the public benefits outweigh the harms. If both criteria are satisfied, FERC will, as in this instance, issue a certificate authorizing the pipeline’s construction, and that certificate also empowers the certificate holder to exercise eminent domain authority under to the Natural Gas Act when necessary. It was the latter consequence of the FERC’s determinations that caused several Pennsylvania landowners to file their objections with the Commission and seek to stay construction.
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Anthony B. Cavender, PillsburyMr. Cavender may be contacted at
anthony.cavender@pillsburylaw.com
Texas Legislature Puts a Spear in Doctrine Making Contractor Warrantor of Owner Furnished Plans and Specifications
May 31, 2021 —
Paulo Flores, Timothy D. Matheny & Jackson Mabry - Peckar & Abramson, P.C.The Texas Legislature has just sent Senate Bill 219 (“S.B. 219”) to the Governor for signature; if this legislation is signed by the Governor, it will further erode the Texas legal doctrine that makes the contractor the warrantor of owner-furnished plans and specifications unless the prime contract specifically places this burden on the owner.
Background
49 states follow what is known as the Spearin doctrine (named after the U.S. Supreme Court case of United States v. Spearin) in which owners warrant the accuracy and sufficiency of owner-furnished plans and specifications. Texas, on the other hand, follows the Texas Supreme Court created Lonergan doctrine, which has been an unfortunate presence in Texas construction law since 1907. In its “purest form,” as stated by the Texas Supreme Court, the Lonergan doctrine prevents a contractor from successfully asserting a claim for “breach of contract based on defective plans and specifications” unless the contract contains language that “shows an intent to shift the burden of risk to the owner.” Essentially, this then translates into the contractor warranting the sufficiency and accuracy of owner-furnished plans and specifications, unless the contract between them expressly places this burden on the owner. Over the years some Texas courts of appeal had ameliorated this harsh doctrine, but in 2012, the Texas Supreme Court indicated Lonergan was still the law in Texas, in the case of El Paso v. Mastec. In 2019, the Texas Legislature took the first step toward hopefully abrogating the Lonergan doctrine by implementing a new Chapter 473 to the Texas Transportation Code with respect to certain projects undertaken by the Texas Department of Transportation, and Texas political subdivisions acting under the authority of Chapters 284, 366, 370 or 431 of the Transportation Code, adopting, as it were, the Spearin Doctrine in these limited, transportation projects. Now, the legislature has further chipped away at the Lonergan doctrine with the passage of S.B. 219.
Reprinted courtesy of
Paulo Flores, Peckar & Abramson, P.C.,
Timothy D. Matheny, Peckar & Abramson, P.C. and
Jackson Mabry, Peckar & Abramson, P.C.
Mr. Flores may be contacted at PFlores@Pecklaw.com
Mr. Matheny may be contacted at tmatheny@pecklaw.com
Mr. Mabry may be contacted at jmabry@pecklaw.com
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A Primer on Insurance for Construction Projects
November 30, 2020 —
Garret Murai - California Construction Law BlogPeople who live in glass houses should have insurance (in addition to not throwing stones). So too should your construction project.
The risks inherent on a construction project are many and varied, ranging from property damage to personal injury to pollution remediation costs, and wise contractors and project owners know that one of the best ways to mitigate these risks is through insurance. So, here’s a primer on what you need to know about insurance on construction projects.
Commercial General Liability Insurance (CGL)
What it Covers:
- Property damage.
- Bodily injury.
- Personal and advertising injury (e.g., libel and slander).
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Garret Murai, Nomos LLPMr. Murai may be contacted at
gmurai@nomosllp.com
“To Indemnify, or Not to Indemnify, that is the Question: California Court of Appeal Addresses Active Negligence in Indemnity Provisions”
April 05, 2017 —
Steven M. Cvitanovic & Omar Parra – Haight Brown & Bonesteel LLPIn California, it is well-established that the extent of a party’s obligation under an indemnity agreement is an issue of contractual interpretation, and it is therefore the intent of the parties that should control. What is the parties’ intent, then, when a subcontractor (indemnitor) agrees to indemnify the general contractor (indemnitee) “except to the extent the claims arise out of the general contractor’s active negligence or willful misconduct”? Does this mean the general contractor is barred entirely from recovering any indemnity if its active negligence contributed to the injury? Not according to the First Appellate District of the California Court of Appeal, which recently held that an actively negligent general contractor may still recover indemnity for the portion of liability attributable to the fault of others. Oltmans Construction Co. v. Bayside Interiors, Inc., No. A147313, 2017 WL 1179391, at *1 (Cal. Ct. App. Mar. 30, 2017).
In Oltmans Construction, an employee of O’Donnell Plastering, Inc. (“O’Donnell”), a sub-subcontractor of Bayside Interiors, Inc. (“Bayside”), which was a subcontractor to Oltmans Construction Company (“Oltmans”), sustained injuries when he fell through a skylight opening in the roof of a building under construction. The employee filed suit against Bayside, Oltmans, and the building’s owner, arguing Oltmans negligently cut and left unsecured the skylight opening. Oltmans subsequently filed a Cross-Complaint against Bayside and O’Donnell, contending it was entitled to indemnification under the governing agreements.
Reprinted courtesy of
Steven M. Cvitanovic, Haight Brown & Bonesteel LLP and
Omar Parra, Haight Brown & Bonesteel LLP
Mr. Cvitanovic may be contacted at scvitanovic@hbblaw.com
Mr. Parra may be contacted at oparra@hbblaw.com
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Joint Venture Dispute Over Profits
January 28, 2019 —
David R. Cook, Jr. - Autry, Hall, & Cook, LLPA recent Georgia Court of Appeals case demonstrates the risk of joint ventures failing to carefully define accounting rules in their joint venture agreement. Two trade contractors teamed up to accomplish certain tasks on a job at a wastewater lift station at Fort Gordon. A joint venture agreement provided for an equal split of the profits and losses. Unfortunately, the parties did not define “profit,” and particularly did not define what cost would be deducted in calculating profit. They disputed in particular whether certain large payments to individuals and 15% overhead charges should be deducted in calculating profits.
One party presented the expert testimony of an accountant while the other did not. The party presenting expert testimony asked the court to dismiss the other party’s claim because it was not supported by expert testimony of an accountant. The trial court granted the motion and dismissed the claim.
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David R. Cook, Jr., Autry, Hall, & Cook, LLPMr. Cook may be contacted at
cook@ahclaw.com
