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9.A -Z RECENT LEGAL ADVOCACY ACTIONS AND OUTCOMES Below is a summary of recent filings and out- comes of cases that the League was involved in as a friend -of- the -court. The League continues to be grateful to the volunteer brief writers that contribute to the League's friend -of- the -court participation. Public Agency Liability for Non - Employee Harassment The California Supreme Court ordered briefing on the issue of whether it is an unlawful employ- ment practice under the Fair Employment and Housing Act (FEHA) for an employer to fail to take all reasonable steps necessary to prevent harass- ment of an employee by a non - employee and accordingly whether an employer is required by FEHA to take all reasonable steps to prevent such harassment. The case arose in the context of the transportation of a developmentally disabled passenger. The bus driver that transported the developmentally disabled passenger sued her employer alleging that they should be liable for the allegedly harassing conduct of the passenger. The law creates employer liability for sexual harass- ment of an employee. However, employer liability does not extend to non - employees, clients or customers of the employer. The trial court and the court of appeal both concluded that an employer was not liable for harassment of an employee by a non - employee. The League submitted a friend -of- the -court brief arguing that because of their unique position as employers, cities, counties and other public agencies should not be held responsible for the harassing behavior of the general public. Public agencies in California are required to interact with the public on a daily basis. Imposing liability on public agencies for the harassing conduct of members of the public experienced by public servant employees creates significant exposure for public agencies and is contrary to the legislative intent of the law. The name of the case is Salazar v. Diversified Paratransit, Inc., 103 Cal. App. 4" 131 (2d Dist. ochcUer28, 2002),rev. granted, January 22, 2003. The League thanks Stacey Sheston and Laura Fowler with McDonough, Holland & Allen for writing the friend -of- the -court brief to the California Supreme Court. Joint Sidewalk Injury Liability The issue in this case is whether state law preempts a city's ordinance making ar adjacent property owner liable for injuries caused as a result of unsafe conditions of a sidewalk. The issue arose in the context of a woman who injured herself on a sidewalk. She sued the city and the abutting property owner. The property owner argued that the city's ordinance was unconstitutional because state law preempts local laws regarding liability for injuries on public property. The trial court agreed with the property owner. The League submitted a friend -of- the -court brief to the court of appeal arguing that cities may enact ordinances to protect public safety. Because maintaining safe sidewalks is a matter of public safety, cities have the authority to adopt ordinances imposing upon property owners a duty of care to sidewalk users to appropriately maintain sidewalks abutting their property. Moreover, the brief argues that state law does not preempt the city's ordinance because the legislature failed to specifically impose a duty of care upon abutting property owners to sidewalk users. Therefore, cities may adopt ordi- nances creating a duty of care owed to sidewalk users consistent with their police power authority and case law. The name of the case is Gonzales v. City of San Jose, No. H025030. The League thanks Shawn Hagerty of Best, Best & Krieger for writing the friend -of- the -court brief to the court of appeal. Self- Incrimination Requires Criminal Case Does a violation of the Fifth Amendment, potentially resulting in an award of civil damage against a city, occur at the time of the purported coercive interview, or only when and if the state introduces the constitutionally violative statement in a criminal proceeding? The issue arose in the context of an officer asking an individual questions while he was receiving medical care after being shot by the police. No statement made by the individual was used against him, and the officer's purpose for interrogating the individual was to obtain evidence from the individual shot by the police before the individual's anticipated imminent Continued on Page 5 PAGE 2 1PRIORITY FOCUS Visit the League's Official Web Site-- www.cacities.org