Monday
Mar282011

General Contractor Could Be Liable For Injury To Independent Contractor

The First Appellate District reversed a judgment. The court held that the general contractor on a jobsite could be held directly liable for injuries suffered by a subcontractor’s independent contractor where the general contractor actively engaged in conduct which contributed to the independent contractor’s injuries.

Tverberg v. Fillner Construction, Inc. (2011) __CA4th__

Monday
Mar282011

IDEA Does Not Require Full Services For Full Private Placement Reimbursement

The court of appeals affirmed a district court judgment. The court held that the Individuals with Disabilities in Education Act (IDEA)does not require that private school placement provide all services needed by disabled student in order to permit full reimbursement for the costs of sending the student to such a school.

CB v. Garden Grove Unified School District (9 Cir. 2011)

Monday
Mar282011

Demoted and Transferred Employee Deemed a "Policymaker" Undercutting Claim of Retaliation

Deputy Bardzik was demoted and transferred by Carona, the Sheriff.

Ordinarily, an elected official may not fire or retaliate against an employee for the employee’s political opinions and activities. An exception exists, however, for “policymaker” employees, given that elected officials must be able to have high-level, loyal employees to help implement the elected official’s policies. Thus high-level, policymaking employees are subject to dismissal if they are no longer loyal to the elected official.

Here, the record demonstrated that in his role as Reserve Division Commander Bardzik was a policymaker. This meant that there was no constitutional violation, and Carona was entitled to qualified immunity, for his purportedly retaliatory demotion of Bardzik.

Bardzik v. County of Orange (9 Cit. 2011)

Monday
Mar072011

No ADA Violation for Applicant Previously Rejected for Positive Drug Test

Plaintiff's previous application for employment was denied based on a positive pre-employment drug screen test.  Years later, plaintiff applied again.  The application was denied based upon the employer's one-strike rule.  Plaintiff claimed a violation of the ADA based upon his condition as a recovering addict.

Claim denied.  First the ADA prohibits employment decisions made because of a person’s qualifying disability, not decisions that were made because of factors merely related to a person’s disability.

Here, the triggering event for purposes of the one-strike rule was the plaintiff's failed drug test, not his drug addiction. Had plaintiff’s first application been made after he was rehabilitated, he would not have been eliminated from consideration despite his status as a recovering addict. Thus, the one-strike rule did not facially discriminate against rehabilitated drug addicts; rather, it eliminated all candidates who tested positive.

Second, nothing in the history of the one-strike rule indicated that the employer had adopted the rule with a discriminatory purpose. Rather, it was lawful for the employer to eliminate applicants who were using drugs when they applied for longshore work and to permanently disqualify such applicants based on safety considerations. The ADA and the FEHA protect people who are recovering or who have recovered from a drug addiction; they do not protect people who are using illegal drugs when they apply for a job.

Lopez v. Pacific Maritime Association (9th Cir. 2011) __F.3d__, March 2, 2011.

Wednesday
Feb022011

Parents Had No Duty To Control Adult Son

The court of appeal upheld a motion for summary judgment in a case in which the adult son of the defendant parents, diagnosed with Aspergers, killed two people.  The court found no duty of care, concluding that any connection between the parents’ conduct and the shootings was speculative. Their conduct amounted to this: they had allowed William to live in their home, attended therapy sessions with him, monitored his medication compliance and reported to the doctors as requested. To impose a duty of care on them, the court ruled, could cause greater harm in future cases by encouraging parents to disassociate from their adult children with chronic serious problems.

 

Smith v. Fruend, 4th App. District; 2/2/11