Should There Be A Difference Between Negligence and "Oops"?

To the reader:  This article is an opinion piece only offered for entertainment purposes only.  Nothing in this article should be construed as legal advice.  None of the characters portrayed in this story are real.

Should There Be A Difference Between Negligence and "Oops"?

The law may be a seamless web, but when it comes to certain kinds of cases, there are parameters.  Casualty claims are just such cases.  Casualty claims focus mainly on the liability of an individual or organization for negligent acts or omissions, and on compensating for losses caused by said negligent acts or omissions.  Succinctly stated, these cases require assignment of blame.  And, to the extent these cases focus primarily on monetary remuneration, the assignment of blame is an essential because it determines who gets paid.  I have spent a career defending the interests of individuals as well as companies in a wide variety of casualty claims.  Often the most difficult element of proof is whether or not the person or entity being charged is liable; again, the assignment of blame.   I am of the opinion that there is a difference, at least philosophically, between “negligence” and “oops”.   Is there a difference between “negligence” and an “accident?” Do we always need to hold someone responsible?  Is it possible to have an accident without necessarily being negligent?  Are we incapable of accepting the idea that, “shit happens?”

In your typical casualty case, one person sues another person seeking money to redress some harm allegedly caused by the other’s negligent conduct.  If said conduct is blameworthy then the law compels them to pay for the harm caused by that conduct.  First, it is important to understand the  definition of “negligence.”

Negligence, from the legal standpoint, is more than a mere “oops!”  For most practical purposes, the law defines negligence as the failure to act reasonably under the circumstances when harm is a foreseeable consequence.  Negligence in this regard is described by four elements:  1) A duty of care; 2) A breach of that duty of care; 3) Damages (or harm); and 4) A causal link between the breach of duty and the damages or harm.  Many law school Tort classes spend nearly an entire semester on the concept of negligence, so do not let my brief description here fool you into thinking it is anything close to this simple.  Each of the aforementioned elements contains many complexities, twists and turns, and almost always evolves based on the actual facts of each case.

So, how is negligence different from an “oops”?  Here’s a simple factual scenario to consider.  Darren Defendant is walking home from work on a beautiful weather day.  He’s taking the same route he takes every day.  At the time of the incident, he is on the street around the corner from his home.  As he is passing the bakery where he stops for Danish every morning, he waves at Bakery Bill, the owner, his friend.  As he is waving at Bakery Bill, he takes his eyes off his direct path for a period of time long enough to wave and inadvertently bumps into Patsy Plaintiff.  Patsy Plaintiff was carrying a cup of coffee in her hand as she walked in the opposite direction.  As a result of the bump, Patsy Plaintiff’s coffee spills on her very expensive silk blouse thus ruining it.  Unfortunately for Darren Defendant, Patsy Plaintiff’s father is an attorney with an office across the street to which Patsy Plaintiff retreats in anger and frustration over the damage to her blouse.  Patsy Plaintiff’s father immediately files a lawsuit claiming Darren Defendant was “negligent” and seeking damages in the amount of $500 for Patsy Plaintiff’s blouse.

I know it’s hard to believe that Patsy Plaintiff and her father would actually sue over this, but stranger things have happened.  I use this example to demonstrate how two minds can differ over whether the damage to Patsy’s blouse was caused by “negligence” as legally defined, or as a result of a mere accident; an “oops”, if you will.  So, consider the elements: Did Darren owe Patsy a duty of care?  Did Darren breach that duty of care?  Did Darren’s breach of the duty of care cause Patsy’s harm (damaged blouse)?

First, we can resolve the element of damage.  That’s clear.  The blouse was ruined and it was a $500 blouse.  Next, we can dispel the issue of causation insofar as we know undisputedly how the blouse was ruined.  Far more complex, however, and the real focus of this essay, is whether or not Darren can be said to have acted unreasonably when he waived to his friend in the window.  In my opinion, the resolution of this issue is not nearly as clear cut as the others previously dispelled.  Then, one must consider what Patsy was doing in the moment before the bump.  Could she have avoided the collision had she been paying attention or was she finger-typing a text message? Was there some condition on the sidewalk that might have contributed to the occurrence in some way?

The real issue here is one of responsibility.  Should we always find fault, or can we simply accept that sometimes “shit happens”?  Remember the facts:  Darren was walking down the street on his way home on a familiar street in good weather when he waved to his friend in the window.  Was he really acting unreasonably?  Some would say that taking his eyes off his path was unreasonable insofar as it was reasonably foreseeable that he could bump into someone.  Since when does waving at someone under the circumstances constitute unreasonable behavior?  We could blame him for being careless, but was he acting unreasonably so that his conduct could be deemed negligent and thus hold him legally responsible for the damaged blouse?  Would we look at this seemingly “harmless” scenario differently had Patsy died from an undiagnosed and extremely delicate brain aneurysm that burst as a result of being merely bumped by Darren? Should his conduct be deemed unreasonable under these circumstances?

How would we view Darren’s responsibility had he bumped Patsy who spilled her coffee which left a puddle on the sidewalk, that “Collin Coplaintiff” slipped in, causing him to lose his skateboard which was tied to his pack with a worn shoestring, which skateboard then rolled into the street causing a car to swerve into oncoming traffic and hit a light pole that fell into the coffee puddle causing an electrical short, that caused a citywide power outage, that caused the computer at the library to catch fire, requiring the fire department to respond at high speed and a fire engine rear-ended a car that did not heed the siren’s warning which got pushed into the gas pump at the gas station causing an explosion that made such a concussion as to cause glass to break two towns away which startled John, a local computer programmer causing him to accidentally hit a sequence of keys that unleashed a computer virus that shut down the entire world’s access to the internet?

And what if Darren bumps Patsy and she spills her coffee and walks into the nearest corner store to fetch a napkin and, while at it, buys a winning lottery ticket worth $42 million dollars?  Does Darren get a cut?

I’m sure you would agree that we, as a society, will almost always appoint responsibility to a set of facts based on the totality of the circumstances.  If the extent of the damage was spilled coffee, we might wave it off as an “oops” and say no harm – no foul.  If the harm caused is more extensive, we might take a more dim view of the same behavior.  It all comes down to this:  the more we suffer, the more we want to hold someone else responsible, regardless of the conduct involved.  It’s easy when the conduct is sinister (but still unintentional), and much more difficult when the conduct is seemingly innocent.

I’m not going to draw any conclusions about Darren’s liability.  I could argue it either way. There is no legally right or wrong answer – only arguments; some of which may prove more convincing than others when made to 12 members of the community sitting in jury box given the task of deciding one way or the other how to assign blame.  I’m merely pointing out that sometimes shit happens and we don’t always need to blame someone for it.  Some might attribute certain happenings to karma, chance, fortune, providence or destiny; others to the alignment of the stars or the status of the seasons, or even the tides.  How far do we take foreseeability such that we distinguish between an “oops” and negligence?  Where do the law and the course of natural events cross?  Do they ever?  And if they do, why?  Tough questions and few answers.   I guess you could say that’s why I love my profession.

For more information, please visit my website: www.golkinlaw.com

Or, you may contact me via email:  larry@golkinlaw.com

SO, WHAT DOES SAILING AND ADMINISTRATIVE LAW HAVE IN COMMON?

WHAT DOES SAILING HAVE TO DO WITH ADMINISTRATIVE LAW?

This weekend, the vessel I race on participated in the 2016 Newport to Ensenada Regatta, also known as the N2E 2016.  It's one of the biggest international regattas in the world.  This year, over 200 vessels participated.  The race started outside Newport Beach Harbor and finished, as you might have already guessed, just outside Ensenada, a mid-sized coastal city approximately 60 miles south of the border between California and Mexico.  This year’s event was quite challenging.  The event has often been referred to as a light wind race.  This year, however, there was a lot of wind.  We experienced 20 knots or more and even higher gusts.  The waves were quite big as well, sometimes rolling by in the 8 to 10 foot range with even larger sets experienced every so often. The race course handicap is calculated on a length of 125 miles.  Thus, for all but the fastest multi-hull race boats, these difficult sea conditions had to be endured over night.  Our boat finished in just under 20 hours.

Sailboat racing is governed by a set of rules.  It is according to these rules that events are conducted and issues are addressed.  There are a number of different bodies all over the world that establish the various parameters to which racing sailors are required to adhere.  And, when disputes arise over the conduct of a vessel during the race, such disputes are resolved according to these rules. 

When an event such as the N2E is established, the entity conducting the race (in the case of N2E, the Newport Ocean Sailing Association or NOSA) publishes what is called a Notice of Race.  This document describes the organizing authority and invites eligible skippers to participate under the conditions established by the Notice.  The Notice also identifies the rating authorities (i.e. PHRF or ORCA) and tells all interested parties which set of rules will govern the event.  In the case of N2E, the Notice states that all boats will be governed by the rules as defined in The Racing Rules of Sailing published by US Sailing, the US Safety Equipment Regulations, and the Sailing Instructions published by NOSA. In the case of class-racing within the N2E, certain class rules may also apply.  The Notice may amend or modify certain rules established by the Racing Rules of Sailing as well as the US Safety Equipment Regulations. 

A perhaps more important document, however, is the final Sailing Instructions published by the host organization, generally very close to the start of the event.  The Sailing Instructions, like the Notice of Race, establish the parameters for conducting the event including, but not limited to, the rules that will apply, as well as the specifics as to how the race will be conducted; i.e. where the start line is located, where the finish line will be located, what sound or flag signals may apply, how the start will be conducted, etc. 

Now that you have read the foregoing, you are probably wondering what place this discussion has in a blog about legal issues.  Well,  here's the segue.  Our society is governed by a variety of rules and regulations promulgated by government entities and agencies.  Sailboat racing is also governed by a variety of rules and regulations promulgated by its governing agency or entity.  In sailboat racing, there is a system to resolve disputes, commonly referred to as “protests.” In dealings with government entities or agencies, there is also a mechanism by which issues are resolved, often referred to as Administrative Remedies.  In sailboat racing, the published Notice of Race, but most often the Sailing Instructions, establishes the procedures by which protests in sailboat racing are resolved.  In dealing with government agencies and entities, there are also procedural requirements often established by the same bodies.  Thus, whereas administrative agencies are typically involved when disputes arise involving government agencies (i.e., city, state, county, or even the federal government) concerning rules, regulations, applications, licenses, as well as application of certain laws such as those prohibiting discrimination or applying for disability, workers compensation, or unemployment benefits, Protest Committees are involved when disputes arise over the conduct of the race either by the participants or the conductors (aka Race Committee).

In resolving sailboat racing protests, a protest committee is established which is often the first step in the protest resolution process.  In matters involving the government or its agencies, often the first step is a hearing before an administrative law judge.  In both sailboat racing and in matters involving government or its agencies, there may be an appeal process spelled out in the regulations, not to mention a variety of other steps that must be taken before the outcome can reach finality.  Regardless, in both cases, the process is called “exhausting administrative remedies”, and whether you are dealing with a permit to add a deck onto your house or challenging the means by which a competing vessel rounded a mark of the race course, all administrative remedies generally must be exhausted before one can resort to the judicial system.

In dealing with any government entity and its administrative proceedings, it is important to remember two key things:  first, the rules and regulations are often special for each agency and are not usually found in statutes.  Second, one must exhaust all administrative remedies before one can challenge the administrative ruling with a lawsuit in court.  There are exceptions, but they are rare.  Moreover, the government agency may even employ the judge or administrative hearing officer making the decision affecting its interests.

So as you may have understood, resolving a dispute in sailboat racing is very much like resolving a dispute with a government entity or agency.  The entity holding the race, like a government agency, establishes its rules of operation as well as they way in which disputes are resolved, and who makes the decision.  In some cases it’s a good thing.  In others it is not.  Yet, in either case, as a general rule nobody goes to court unless and until all the administrative remedies are exhausted.  Sometimes the rules and regulations, as well as the procedures to go forward with an administrative proceeding are complex, so it’s good to have a lawyer with experience in administrative proceedings.

If you are interested in seeing an example of what the administrative rules and procedures for resolving disputes in sailboat racing look like, check out this website:  http://www.sailing.org/documents/protests-forms.php.

In spite of the apparent strictness and complexity of the racing rules of sailing, the fact is that the great majority of disputes that arise out on the race course are resolved between the skippers over a cold beer after the race, and rarely is there a need to resort to the complexities of administrative proceedings in front of a Protest Committee.  After all, we race against our friends.

Expungement: The Eradication of Your Criminal Past

So, you’re filling out that job application or applying for school and must answer the dreaded question: “Have you ever been convicted of a crime?”  And then the realization hits you; do I really have to disclose that DUI I got 20 years ago when I was in college?  Do I really have to disclose the details of that fight I got into that lead to an arrest and then a short stint in the pokey?  Well, unfortunately, if you lie about it, depending on the job you are applying for, your potential employer will likely find out about it, and your chances of getting that job will diminish considerably if not completely.  Even if you tell the truth and disclose, the fact of the conviction may give someone else applying for the same job with the same experience as you an edge.  Furthermore, some employers may simply not want to hire you because of an unfortunate incident in your distant past. Fortunately, there may be something you can do about it.

In many cases, if your involvement with the criminal justice system resulted in a misdemeanor conviction, you may be able to get that conviction “expunged” or erased.  California Penal Code section 1203.4 provides that, in a case where you have fulfilled the conditions of probation for the entire period of probation, or have been discharged prior to the termination of the period of probation, and if you are not serving any sentence for any other offense and are not on probation for any other offense, and have no new cases pending, your record may be cleared.   What happens is this: upon preparation and filing of the appropriate petition, the court will re-open the case, allow you to withdraw your plea of guilty or no contest, or otherwise set aside the judgment of guilt, and then dismiss the case.  The Order “expunging” your record will be disseminated to the appropriate criminal record keeping agencies and with certain limited exceptions, when asked if you have ever been convicted of a crime, you will be legally able to say, “no.”  The exceptions are if you are applying for employment with a government entity, applying for a government issued license (like a real estate license), or if you are applying to contract with the state lottery.  Then, you would have to disclose the conviction, but you would say that it has been expunged pursuant to law, or pursuant to Penal Code section 1203.4.  Note that there are other remedies available if the conviction was a felony as opposed to a misdemeanor, and there are certain offenses for which this remedy is precluded altogether.

Depending upon which county the motion is filed in, this process may take anywhere between 30 to 90 days.  When records of an arrest or conviction are expunged, a notation is made in the file that the records are off limits to all except law enforcement personnel.  As such, for almost all purposes you can treat the conviction as though it never happened.  Please note that this is generally how it works in California.However, the rules about who is eligible for expungement, and the effect of expungement, vary from state to state.

There are many reasons why it may be important to you to have your record cleared.  You may be seeking employment or admission to graduate school.  It may be as simple as the situation where you and another candidate have similar credentials but you are the one with the criminal record thereby giving another person a competitive edge.  It may be as simple as a desire to clean up the past so that the future looks even brighter.  You decide the reason.  Let me help with the nuts and bolts of getting it done.  It's not that expensive or time consuming, but you should have a qualified lawyer help you.