The Legal Insider

September 2015

Landlord Liability for Tenant Falling Out of Window

falling-out-window-liabilityA woman from Corvallis, Oregon filed a lawsuit against her apartment management company because the company did not install window guards that could have prevented her from falling out of her window. Shelbi Macholz, age 22, had been sleeping in a bed adjacent to an open window when she fell from the bed, and plunged three stories to the ground.

As a result of the fall, she fractured her lower back, pelvis and tailbone. She filed a claim seeking $230,000 in damages from Principle Property Management. She is seeking damages in the amount of $80,000 for medical expenses, and a maximum of $150,000 for pain and suffering, and loss of enjoyment of life.

It is a highly unusual case in that it focuses on the perils of open windows for adults. The dangers of open windows for children is already well-documented by the many instances in which they have fallen out of windows. The majority of window fall victims are age five or younger. Campaigns aimed at the prevention of falls from windows have largely been aimed at children. However, there are cases in which adults have fallen out of windows. Specialists in the area of sleepwalking have cared for patients who have tumbled from balconies or windows.

Although property owners, particularly rental property owners, have been encouraged to install window guards, or other devices to prevent falls from windows, such protection is seldom enforced by government agencies. Apartment building management companies are not required by the city of Corvallis to install window guards. But in New York City, where there are many high-rise apartments, buildings with three or more units are required to have window guards installed if children age 10 or younger reside in those units.

Your Right to Vested Employment Benefits

vested-employment-benefit-rightsMany are curious to know what happens to their vested employment benefits when they leave their jobs. This may be sparked by an employee’s own desire to quit his job or even a sudden termination. Although employment benefits rights vary from state to state, most key concepts remain consistent throughout.

What Are Vested Rights?

Many states require employers to provide their employees with vested rights (i.e. benefits). Vested rights are employee benefits that employees accrue as they are working. The best example of this is vacation days accrual. This is because employees only get a certain amount of vacation days per hours worked. They earn the vacation days after working for certain hours, and they do not have an automatic right to them.

How Do Vested Rights Affect Employees?

The purpose of vested rights is that employees have a right to those benefits even if they no longer have a relationship with their employers. Some may ask how can a departed employee use their vacation days. Well, the departed employee cannot use vacation days when he is no longer with the company. But the departed employee can obtain the cash equivalency of his vested rights!

Furthermore, some employers opt to give their employees PTO days in lieu of vacation days. The stipulation to PTO days is that the employee has no limitations to PTO days and PTO days are more flexible than vacation day. So, the consensus within the judicial system is to treat PTO days the same as vacation days. In essence, when an employee parts with his company, the employee can cash out his PTO days just like he would do with his vacation days.

Nonetheless, there are exceptions to those vested rights. For instance, the general trend is to treat sick days as non-vested rights. This is due to the conditions that must accrue in order for you to take sick days (i.e. being sick or to care for a sick family member).

What If My Employer Refuses to Pay?

Generally, employers are supposed to their employees their vested rights in their last paycheck or within 30 days of their last working day at the company. If the employer refuses to pay, then the employee can file a complaint with their state’s department of employment. Afterwards, the state will schedule an administrative hearing. During the hearing, the employer will carry the burden of proof to show the employee have no vested rights or the employer made an effort to pay.

If you need help with the complaint and want to know more options, please contact an employment lawyer. An employment lawyer can help ensure that your former employer carries the burden of proof and does not try to trap you into saying something incorrect to prevent them from paying.

Vaping Laws

vaping-lawsVaping refers to the act of inhaling tobacco from an electronic cigarette or inhaling water vapor from a personal vaporizer. Vaping has become an alternative to smoking for many individuals wanting to quit or enjoy tobacco without the stigma attached. Recently, vaping has come under fire so to speak because of the possible health concerns and use by minors.

Currently, vaping in public is illegal in many major cities. In 2014, Los Angeles became the third major U.S. city to ban vaping in restaurants, bars, farmers markets, and parks. New York, Chicago, and Boston are other cities that have recently banned the use of e-cigarettes in public places.

States that Banned Vaping

Besides some major cities, states are banning vaping in certain areas. The following include some jurisdictions where e-cigarettes or vaping is unlawful:

  • Delaware: Beginning this month in September, the state will ban vaping in any public place where smoking is not allowed.
  • Hawaii: Prohibits e-cigarettes in places where smoking is ordinarily illegal.
  • North Dakota: Prohibits e-cigarettes in private and public locations in the state.
  • New Jersey: Prohibits e-cigarettes in public places and in work areas. Minors under the age of 19 years old can’t buy e-cigarettes.
  • New York: E-cigarettes are banned in offices, parks, workplaces, restaurants, and bars. Vaping can’t occur within 100 feet of an entrance to a public building or school. No one under 18 years old can buy e-cigarettes.
  • Oregon: Beginning January 1st 2016, e-cigarettes will be illegal in all smoke-free areas. This includes restaurants and bars.
  • Utah: E-cigarettes are banned in same places as smoking, including public hallways, dining areas, lobbies, and smoke-free zones.

Breach of Contracts

breach-of-contractContracts are an essential element of all business dealings. A contract is an agreement between two or more parties and that is legally enforceable. While it is best to have all contracts in writing, some oral contracts are enforceable.

If you fail to enter into a contract with another party, when and if the other party fails to perform, you may not have an avenue for recovery. A breach of contract occurs when a party to a contract fails to fulfill their obligations under the terms of the contract, leaving the other party unsatisfied.

Here are a list of the most common types of breach of contract:

  • Material Breach of Contract

    A material breach will typically affect the outcome of the contract and defeat the intentions of the party to the contract. An example of a material breach would be where a contractor agrees to install high-quality copper plumbing throughout the house. Instead, the contractor installs low-grade plastic plumbing throughout the house.

  • Minor Breach of Contract

    A minor breach of contract occurs when the failure of performance of one of the parties to the contract does not affect the whole outcome of the contract and has “substantially performed.”

    Suppose the contractor from the above example installs equal grade and quality plumbing that is not the Redding brand. The intent of the contract stays the same, as the quality of the piping is the same. It is only the brand that is different.

  • Actual Breach of Contract

    An actual breach of contract occurs when the contract becomes due, but the other party refuses to comply with the agreement.

  • Anticipatory Breach of Contract

    An anticipatory breach of contract occurs when a party does not yet breach the contract, but notifies the other party that they do not intend to carry out their end of the agreement. The non-breaching party has the option to sue, ignorethe breach and continue the contract, or demand that the other party hold up their end of the contract.

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