Author Archive for Sam Behbehani

Judge Dismisses Personal Injury Case Against Gun Manufacturer

A federal court has dismissed a personal injury lawsuit directed at the gun manufacturer Smith & Wesson. The plaintiff was handling a gun when it accidentally went off, amputating his finger. The plaintiff’s claim is based on the idea that the gun had a mechanical defect and the powerhouse gun manufacturer should be held responsible.

Product Liability

Product liability refers to a manufacturer or seller being held liable for placing a defective product into the hands of the consumer. The vast majority of product liability cases are Gun Storedetermined at the state level. Product liability claims can be sought out under the theories of negligence, strict liability, or breach of warranty. Under negligence, the plaintiff would have to show that the manufacturer, in this case, Smith and Wesson:

  1. had a duty of care owed to the plaintiff,
  2. there was a breach of this duty, and
  3. this breach actually caused the injury.

In plain English, Smith and Wesson obviously have a duty to ensure that their firearms do not have mechanical defects. The difficult part here is being able to show that when plaintiff was handling the gun, it was a defect rather than mismanagement by the plaintiff that actually caused the injury. The Court ultimately held that the injury was not caused by a defect. Smith & Wesson are not liable. Strict liability and breach of warranty would probably not apply here either.

The Benefit of the Doubt

The point of all this is that it is quite difficult to show that a manufacturer of a product can be held liable. There are some circumstances where benefit will be given to plaintiff. Under a doctrine known as res ipsa loquitur, the burden of proof will shift to the defendant to show that they are not liable. It makes the path easier for the plaintiff. However, this doctrine is rarely invoked. For it to come into effect, the injury must have occurred because of someone’s negligence.

At the end of the day, it is quite difficult to pin the blame on the manufacturer because they are so far removed from the actual incident — an actual defect must be present before they are held accountable. Even if the plaintiff is somehow successful on his claim, Smith & Wesson could invoke comparative or contributory negligence as a defense. Based on the facts presented, the plaintiff was somewhat careless with the handling of the gun. This is not to say that there was not a defect but that there very well could have been mishandling of the firearm.

For all intents and purposes, unless the legal framework is reworked to give more deference to the plaintiff, manufacturers will win the majority of product liability cases. As mentioned earlier,  there are so many chains of distribution involved in the product that it will be quite difficult to reach the manufacturer who has no involvement in the actual cause of action.

Equal Parenting Time: Beneficial or Harmful?

There are times when children have to endure divorce and separation proceedings. The real battle though is about child custody and who should have parental control. Divorce rates have nearly tripled in the last decade or so and child custody is something that courts have to deal with all the time. One of the ongoing issues with child custody is which parent should be the rightful guardian and caregiver of the child.

There are various factors that the court looks at in making this decision. Such factors include: whether a parent has a history of violence and abuse, financial status of the parent, and intimacy of parent with child. In some instances, the court will allow for joint custody where each parent will be given a chance to be with the child under certain scheduled times. These are usually not on a 50/50 basis, but rather on a scheduled basis or percentage that works best for the child. For this kind of equal child custody, there are legal and social ramifications that need to be addressed.

Equal Child Custody and Arising Problems

Equal child custody, the idea that both parents will be given an allotted amount of time to spend with the child, can be both beneficial and harmful. On the one hand, a child might have attachments to both parents and as a result might want to maintain a relationship with both. However, if one parent is abusive or excessively controlling, then this can be harmful for the child. Family Lawyer

Each state has different laws when it comes to child custody. For example, in Arizona, regardless of the parent’s character or temperament, the parent will be able to maintain contact with the child. In other states, equal custody does not mean 50/50. Instead,  both parents will maintain contact, but not necessarily an equal amount of time with the child.

In California, it is broken up into two categories. There is 1) legal custody and 2) physical custody. Legal custody is the right to make decisions on behalf of the child. Physical custody, as it sounds, is maintaining physical contact with the child. Both of this can be arranged for if the parent qualifies. However, as mentioned, equal child custody under either legal or physical grounds can be detrimental to the child.

There are studies that indicate that a child who is equally exposed to two parents with very different lifestyles and philosophies on life could produce confusion in the child and possibly emotional trauma. Socially, the child might not be able to interact with others of his age. This back-and-forth between parents could lead to long lasting psychological harm to the child. Aside from these psychological and social consequences, there are legal ones as well.

Constitutional Violation?

Child custody has always been at discussion for the courts because at its foundation, there is a constitutional issue. Giving one parent more rights than the other could be viewed as a potential equal protection violation under the Fourteenth Amendment of the U.S. Constitution. Under the Fourteenth Amendment, if one classification of people are treated differently than others, then this could be potential grounds for discrimination and hence a constitutional violation.

However, case law has already addressed this. Through case law and statutory authority, it has been established that this kind of unequal treatment is not discriminatory as it is for a legitimate government purpose: the protection of the child. There is an exception to this of course. If the distinction is on the basis of race, gender, or religion, then equal protection rights in accordance with the U.S. Constitution and enforced by the American Civil Liberties Union will be invoked.

Child custody is a concept that can leave a lasting impact on the child in both his mental and emotional growth. Legally, it is a state-by-state issue. Every case will be different but at the heart of it, the parent’s background and history will determine if they will have visitation rights or custody rights to the child. The distinction made between the parents is not a constitutional violation. Circumstantial factors will be looked at to see what is in the child’s best interest as well as for the parents.

Firefighters Denied Workers Compensation

Dozens of injured San Jose firefighters have been denied workers compensation claims. Over the past several months, firefighters in the San Jose area who have been injured on duty have been denied workers compensation. These firefighters complain that they are not given the proper treatment and care that they deserve.

Workers Comp

Workers compensation is an essential component of the work force dynamic. It acts as a safety net for workers who are hurt on the job. Without such a system in place,  millions of workers will be left to support themselves and pay for their own insurance plans. Workers compensation acts as a substitute for insurance coverage. It is a form of insurance that compensates workers that are hurt on the job.

Under the California Labor Code, employers must purchase workers compensation on behalf of their employees.  Similarly, public agencies such as the Fire Department and the Police Department must provide workers comp for their employees. However, public employees are sometimes treated as contractors rather than actual employees. As a result, these public employees are denied workers compensation when they need it. Firefighter

Generally, workers compensation is an agreement between the employer and employee. The employer will provide for injuries and other related costs but, the employee will not have the right to sue the employer for negligence. This seems like a fair tradeoff. However, if the employer is mandated to provide workers comp and they do not, then they can be in legal trouble.  The deprived employee can seek damages through a civil court beyond the compensation that the employee was originally entitled to.

Moreover, the employee can go through their respective state fund to recover damages.  As mentioned before, a lawsuit cannot be commenced against the employer for grounds of negligence. The exceptions are if workers comp was not provided or if it is on discrimination grounds.

A Flawed System

The City of San Jose has wronged the San Jose Firefighters through Athens Administrators. The city contracted out its workers comp disbursement system to Athens Administrators, which has not provided for these brave firefighters in a number of instances. This is no good. These people are constantly putting their life on the line and the least the city could do is repay the favor. Some of the issues with the workers comp systems in place are logistical and not a question of outwards denial of the individual.

Logistically, it is sometimes difficult to keep track of every incoming claim. As a result, these claims are left out of the system and not tended to. The automated databases that collect and input the claims have flawed mechanisms that don’t always keep track of every incoming claim, resulting in unattended claims.

Additionally, Athens  has outright denied workers comp to firefighters because they didn’t feel the harm or injury was extreme enough. As one staff member put it, the “treatment was not medically necessary.” That’s not the point. Under workers comp, regardless of severity of injury, treatment should be given. It is absurd to think that a firefighter who has come in with bruises is denied because it does not come off as severe enough. Someone does not have to end up in the emergency room before assistance is given.

There need to be ground rules as to what is covered and what isn’t. Furthermore, the system needs to keep better track of each claim. As a number of firefighters have complained, the system neglects to even look at certain claims. Under state and federal law, workers comp is a right that belongs to workers. If this right is not upheld, then all is for naught. At the end of the day, the system is dictated by rule of law. If these laws are broken, then there have to be measures in place that will trigger a reaction that will ensure that the system is abided by.

Wearable Technology a Violation of Employee Privacy?

Performance-monitoring devices are become more prevalent in the workforce. These devices keep track of the day-to-day activities of employees in order to better gauge work performance. An ongoing concern is whether basic civil rights, in particular, right to privacy, are being violated through the use of these devices. These devices can be found everywhere. Even the police department has made use of body cameras to keep track of their police officers. How far can employers go in enforcing these devices?

The Good, The Bad, and The Ugly

There are many reasons why an employer would want to make use of such performance-monitoring devices. The first basic reason is that the employer will be able to manage the work efficacy of the employees. No matter what line of work they are in, the employer will be able to keep track of the individual’s work performance every step of the way. This is good and bad.

For one, the employee might feel uncomfortable knowing that their higher-ups will be able to monitor everything they do within that window of time. One other aspect to this that is often overlooked is that the employer may have a preconceived bias towards a certain employee (for whatever reason—race, gender, or even personal relationship with employer) that will cause employer to give more attention to that individual over other such employees. This is unfair because they will be unduly scrutinized for the same work done by others.  Camera

As for the positives, this new form of work surveillance, if you want to call it that, gives the employee incentive to stay on track and not fall behind. It will be a motivating force that will increase productive output. Furthermore, in the case of truck drivers and other such work responsibilities, it will keep them awake in the case of long working hours. A Rackspace study found that as a result of wearing these devices, employees are more productive and satisfied with their work.

Right to Privacy

Now to address the elephant in the room. What about basic civil rights violations? The biggest concern here is the right to privacy. Although the right to privacy is not expressly stated in the United States Constitution, it is referenced in a number of different contexts. The Fourth Amendment implies people have a right to be secure from any intrusions. Moreover, there is case law that strengthens this concept that has been in development for the past couple hundred years. Mass surveillance and privacy is an ongoing issue in various industries and it will remain at the forefront because the law in this area is vague and not clearly defined.

However, in general, it seems these performance-monitoring devices, although violating certain privacy rights, have enough benefits to them that it might not warrant stricter guidelines. Although employees are in a sort of panopticon (conceived by famed philosopher Foucault, a panopticon refers to a surveillance system where the person is constantly in fear of being punished), this new system works towards a better work experience. Whether the courts will take this into consideration remains to be seen.

As for the police force retaliating against the police department for abusing their rights, this is a matter that is not quite the same as a typical employer-employee dynamic. A police department is an arm of the government and as such, should be held to a higher standard. Unknowingly, police officers have been recorded with body cameras on their person. There has been outrage as a result. In light of recent police brutality that has garnered national attention, the police department has sought to make sure that their police officers are in compliance and do not act out of line.

This will speed up the evidence-gathering process if there ever comes a time when the officer is investigated for committing such activities. On the other hand though, there are privacy concerns. Should the police officer be obligated to wear such devices at all times? And it seems that the police department did not inform their officers of the use of such devices. One officer stumbled upon the body cameras. As this has been an issue that has received much press but little actual litigation, only time will tell what will come of this. The justice system needs to see this through.

Massachusetts Bans Employers From Asking About Salary History

Massachusetts has passed a law prohibiting employers from asking employees about their past salary history. This is a step in the right direction. Wage inequality has been an ongoing and unresolved issue in this day and age. In an era where employment opportunities are ample and there are federal laws in place that outlaw labor discrimination against women and other minorities, this type of wage disparity still exists and needs to be set aside once and for all.

Step in the Right Direction

Women’s rights has been a recurring issue in American history and politics for the past couple hundred years. From Seneca Falls to women becoming active participants in voting rights, this has been a nagging and ongoing topic of discussion with no end in sight. This recent Massachusetts law, along with similar laws enacted in other states, reinforces women’s rights and wage equality.

Although gender wage inequality is the problem posed here, such legislation helps other minorities as well. Federal law prevents gender-based pay discrimination yet wage gaps still exist. There are studies, including one from the United States Census Bureau that puts the average national salary for women slightly below their male counterparts. Piggy Bank

The new Massachusetts bill, aside from preventing employers from questioning salary history, also allows employees to share their salary with others. This not only puts the issue at the forefront, but also validates the issue. In other words, spreading the word about their respective salary, employees can gain an awareness of where they stand compared to others in the same line of work or similar profession. Furthermore, employees can better understand where they stand relative to others in their industry.

For example, if a programmer is receiving a salary and bonuses that is less than the average programmer in the same industry or particular niche, then this could be grounds for complaint for that individual. However, in light of this new piece of legislation and other such laws enacted elsewhere, this is without a doubt a step in the right direction.

Holding Its Own

Although this bill is a state-enacted piece of legislation, it has sent a ripple effect all throughout the country. Even though the Supreme Court is the law of the land, i.e., it governs all, state laws have dominion over their own borders unless Supreme Court says otherwise.

As mentioned before, although there are federal laws in place such as the U.S. Equal Employment Opportunity Commission, Equal Pay Act of 1963, and other like bodies of law, this state law has its own weight of authority and brings into focus the issue on a more personal level. This idea that employers cannot raise questions of salary history could work in a court of law because undoubtedly, this is the goal that we have been aiming for all these decades.

Since the end of the Second World War, women have sought better work conditions and more work opportunities, and rather than just be sit-in mothers. They want to be a part of the tour de force of society in building and assuming the roles of pioneers, innovators, and holding a position in society that is appreciated and will contribute towards the evolution of socio-economic values.

A Subsisting Problem

Hopefully, with this legislation and others, as well as SCOTUS stepping in to bring this much-needed change, we will be one step closer to achieving what the founding fathers strived for and what is rooted in our core values. Of course, this needs to be a group effort. Both major parties, as well as the judicial branch, need to play their part. Congressional Republicans have blocked passage of certain bills, such as the Paycheck Fairness Act, that would push for greater wage equality. For progress to be possible, politicians need to put their differences aside and work in unity for the greater good.