By Christopher B. Dolan and Aimee Kirby
This week’s question comes from Nancy G. from San Francisco. Recently, I moved to San Francisco for a job opportunity. Like many people here, I sold my car and now get around by walking, biking or taking BART to work. While walking to and from work, I noticed many used needles on the ground. I know San Francisco tries to provide services to those in need, but I am worried about the increased number of uncapped and used needles on the ground. Although my shoes are protecting my feet, in the chance that I do not see a needle and it goes through my shoe, what are my rights or the rights of other people if we get pricked by a needle on the ground?
Dear Nancy: Thank you for reaching out and for your question. This issue is one that San Francisco residents and the community at large have been dealing with for a while now. San Francisco is known for amazing people, culture, food, arts, cable cars and bridges. It’s also major international city facing many pressing issues.
In 2018, NBC did a report and looked at 153 blocks in San Francisco. It found discarded needles in 41 blocks and human feces on 96 blocks. It appears that the problem has increased due to COVID. The concern with uncapped needles, as you are aware, is that they can be contaminated and a health hazard. The City and its leaders are in a constant struggle to maintain clean streets and free of discarded needles. The reality is that this is a very difficult job.
Our office has handled actions against hospitals for improper storage of needles; your question about needles on the ground in public areas is a very good question. The cause of action for having an unsafe premise generally would be one that would arise in negligence. Negligence as a cause of action requires that the person sued: (1) had a duty to do something, (2) breached that duty by acting unreasonably, (3) the plaintiff who sued the person was injured, and (4) the damages are casually related to the injury.
Generally, business owners must keep the regress and ingress (exit and entrance) safe to their businesses. Therefore, if a needle is close to any of these areas, and they were aware of the situation, you and your attorney arguably could establish two prongs of negligence.
In much of San Francisco, local ordinances make business owners responsible for maintaining the sidewalk outside their property, which would help an argument called negligence per se.
If your inquiry is how to hold San Francisco responsible, that’s a little more difficult. For a case against The City, the standard is different. You and your lawyer would allege that the needles made the walkway a dangerous condition of public property. For this cause of action, it would have to be proved that the walkway was dangerous when used in a reasonable manner, that the City of San Francisco had knowledge of it, had the time and money to fix the condition, and a person was harmed by the condition. Assuming you prove the needles constitute a dangerous condition, The City of San Francisco would have to have strong argument that it is doing everything possible to try to combat the problem.
One problem with a cause of action claim – both against property owners adjacent to the sidewalk and The City of San Francisco – concerns the harm suffered by the person who stepped on the needle. Of course, the emotional and physical response to stepping on a uncapped needle without knowing what is in it can be extreme. Often times, when a person is pricked accidently, the needle is tested, and the person is put on antiviral prophylactics and told to wait for test results. The person’s pain and worry goes beyond the momentary prick that was initially felt.
Yet the law states that people may not recover damages unless there was a physical harm caused by the needle. In Macy’s California, Inc. v. Superior Court (1995) a plaintiff sought emotional distress damages for the fear she suffered after being pricked by an uncapped needle hidden in a returned jacket she bought. In finding that her case could not go forward, the court said:
“The question before us is whether a routine needle stick constitutes harm for purposes of parasitic damages. We conclude it does not. In a routine needle stick, harm, if it occurs, takes place when a hazardous foreign substance, introduced to the body through the needle, causes detrimental change to the body.”
Therefore, the courts are not ready to recognize the emotional response to this case without an actual exposure to material within the needle that causes a detrimental change to the body.
Thank you for your question. I am sure many people have thought about this when they see needles on the ground. Please continue to be safe and stay alert as you explore this wonderful city.
Christopher B. Dolan is the owner of Dolan Law Firm, PC. Aimee Kirby is managing attorney, torts practice in our Redondo Beach office. We serve clients throughout California from offices in San Francisco, Oakland and Los Angeles. Email questions and topics for future articles to: firstname.lastname@example.org. Each situation is different, and this column does not constitute legal advice. We recommend that you consult with an experienced trial attorney to fully understand your rights.