June 1999 Vol. 5 No. 6 ISSN 1087-6219
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In This Issue

• Ninth Circuit strikes down Export Administration Regulations that restrict distribution of encryption software
• Three lessons in the law of tort duty
  • Benavidez: Domestic violence victim v. police-no duty
  • Barnes: Tenant's child v. landlord-duty
  • Lurye: Pedestrian v. streetlight company-duty
• Municipal officials liable for retaliatory discharges arising out of political controversy
• UPDATES

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Ninth Circuit strikes down Export Administration Regulations that restrict distribution of encryption software

The Ninth Circuit has sustained a facial challenge to certain Export Administration Regulations as an unconstitutional prior restraint on scientific expression. An encryption software developer mounted the challenge to protect his right to distribute his encryption method.

Daniel Bernstein developed an encryption method that he called “Snuffle.” The Commerce Department administers the Export Administration Regulations. See 15 C.F.R. Pts. 730-74. Those regulations require a license to export encryption software. Licenses are only granted if a case-by-case analysis determines that exporting the particular item would be “consistent with U.S. national security and foreign policy interests.” There is no assurance that the ultimate decision will be made within any specific time. There is no judicial review of the final administrative decision.

Bernstein was told that he would need to secure a license through this procedure before he could make materials available to foreign nationals or to anyone outside the United States. Instead, he filed a lawsuit to enjoin enforcement of the regulations.

Bernstein's claim met the standards for a facial attack on the regulations. The source code for “Snuffle” was expression entitled to First Amendment protection. The court explained that “cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs.” The standardless licensing scheme gave the government substantial power to discriminate based on content.

To overcome the “heavy presumption” against prior restraints, official discretion must be bounded by stringent procedural safeguards. Here, the restraint was not for a specified brief period of time. There was no opportunity for judicial review. See Freedman v. Maryland, 380 U.S. 51 (1965). Therefore, enforcement of the regulations had to be enjoined.

Bernstein v. United States Dep't of Justice, 1999 WL 274111 (9th Cir. May 6, 1999).

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Three lessons in the law of tort duty

Determining whether the defendant owes the plaintiff a tort duty generally presents a question of law for the court to decide. A court determines the question by weighing the following factors: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the consequences to the community of imposing a duty of care, and the availability, cost and prevalence of insurance. See Rowland v. Christian, 69 Cal. 2d 108 (1968).

Three recent decisions apply the principles for determining whether a duty exists in divergent circumstances:

1. Benavidez: Domestic violence victim v. police-no duty

Adela Benavidez and her son Joey were living with her boyfriend, Richard Cortez. Cortez verbally and physically abused Benavidez. In December 1993, after a particularly violent episode, Benavidez consulted with a women's shelter and left her house to stay in a motel. When she returned the following morning, the house was locked. As she was breaking into her own house, Cortez arrived and attacked her.

After Joey called 911, Cortez fled in Benavidez's car. When two officers from the San Jose Police Department arrived, Benavidez said that Cortez had taken her car, and might have gone to her mother's house. In response to their inquiries, she said that she did not want an ambulance, and did not wish to go to the hospital. When the officers left, she asked what she should do if Cortez returned. They told her to call 911.

One of the officers drove to the mother's house. He did not find Cortez, and headed back to Benavidez's house. In the mean time, Cortez reappeared and started to break in. Benavidez called 911, but Cortez grabbed her, and stabbed her with a shard of broken window glass in the head and neck. The returning officer arrived shortly thereafter, and subdued Cortez with the assistance of additional officers.

At the time of these events, the police department's duty manual provided: “Officers shall assist victims of domestic violence in the following manner: . . . Assist in making arrangements to transport the victim to an alternate shelter if the victim expresses a concern for safety or [if] the officer determines a need exists.”

As a general rule, no one, not even a police officer, has a duty to offer affirmative assistance to someone in danger. Benavidez argued that there was a “special relationship” between her and the police. However, there was no admissible evidence that the police had expressly promised protection. Cf. Williams v. State of California, 34 Cal. 3d 18 (1983). Nor was there any evidence that the police had increased the risk of danger. Cf. Mann v. State of California, 70 Cal. App. 3d 773 (1977). Therefore, there was no special relationship.

Benavidez v. San Jose Police Dep't, 71 Cal. App. 4th 853 (1999).

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2. Barnes: Tenant's child v. landlord-duty

James Barnes was riding his tricycle on a private sidewalk within the apartment complex where he lived. His tricycle veered onto a steep driveway that sloped down to a busy four-lane public street, where James was struck by a car. He died from his injuries. His family sued the owner of the apartment complex.

A landowner has a duty to exercise reasonable care in maintaining his or her property so as to avoid exposing others to an unreasonable risk of injury. The landowner argued that he was not liable because the injury occurred off-site. However, the landowner has a duty to prevent dangerous conditions on his property. He is liable if that dangerous condition causes an off-site injury.

In this case, the configuration of the landowner's property ejected James into the street against his will. Residents had complained to the apartment manager about the dangers to children posed by the steep driveway. Therefore, the landowner was responsible for the dangerous condition created by the driveway's accessibility from the private sidewalk.

Barnes v. Black, 1999 WL 294813 (Cal. Ct. App. May 11, 1999).

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3. Lurye: Pedestrian v. streetlight company-duty

Southern California Edison contracted to install and maintain streetlights for the City of West Hollywood. The intersection of Fountain and Fuller Avenues in West Hollywood had been the location of many accidents. In October 1995, a car rendered inoperable the streetlight that hung directly over the crosswalk at the intersection. Edison workers cleared the debris, but did not replace the streetlight until April 1996.

On March 2, 1996, Isaak Lurye, a 67-year old pedestrian, was struck by a car while walking across Fountain Avenue in the crosswalk that had been lit by the damaged streetlight. The driver of the car testified that she could not see Lurye in the crosswalk until it was too late.

Restatement (Second) of Torts section 324A imposes liability on one who undertakes to render services to another, which services he should recognize are necessary for the protection of a third person, if (1) the third person suffers harm because the “other” person relied on the provider of services, or (2) the provider undertook to perform a duty owed by the “other“ person to the third person. Here, Edison certainly should have recognized that street-lights were necessary for pedestrian safety at night. Both of the alternative elements were also satisfied.

First, even if one assumes that the City had no duty to the pedestrians itself, it nonetheless hired Edison to provide functioning streetlights. When it did so, it relied on Edison to do the job properly. Because of its reliance on Edison, it did not hire a different contractor, nor employ additional staff to do the job itself.

Second, the City had a duty to Lurye under these circumstances. A municipality is not liable for failure to light its streets, unless a “peculiar condition” renders lighting necessary to make the streets safe for travel. Here, the frequency of prior accidents at the crosswalk was evidence of a substantial risk of injury to pedestrians. In addition, the presence of a marked crosswalk invited pedestrians to enter the street at that point on the assumption that motorists could see them. Those circumstances constituted a “peculiar condition,” which the City had a duty to address.

Lurye v. Southern California Edison Co., 71 Cal. App. 4th 1167 (1999).

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Municipal officials liable for retaliatory discharges arising out of political controversy

The Ninth Circuit has affirmed a judgment in favor of two fire fighters who were discharged in the wake of municipal election campaigns. The subordinate officials who set the disciplinary process in motion for improper reasons were liable, even though the ultimate decision maker had a valid reason for imposing the discipline.

The fire fighters union had supported the City of Westminster's incumbent mayor, Charles Smith. In the November 1992 municipal elections, it switched its allegiance to Joy Neugebauer. During the campaign, Smith openly expressed his bitterness about the defection, and then defeated Neugebauer in the election. A member of the City Council told two union representatives that Smith “is anti-fire now.”

After the election, the fire department came under attack as a result of its overtime practices, and leave policies. The union responded with an unsuccessful recall campaign against the mayor and the city council.

Two months before the recall election, the City discharged several active union members, including Don Herr and Joe Wilson, for fraudulently accumulating paid leave time. Wilson's discipline was later reduced to a 30-day suspension, and a 1-year reduction in pay. City Manager Robert Huntley made the final decision. The jury determined that those who instituted the proceedings leading to discharge had an unlawful retaliatory motive, but that Huntley did not. The district court entered judgment for Herr and Wilson.

Relying on Mt. Healthy City Sch. Dist. v. Doyle, 429 U.S. 274 (1977), the defendants argued on appeal that this was a “mixed-motive” case, in which defendants may prevail by showing that the decision would have been the same even in the absence of the unlawful motive. Here, the decision would not have been the same. Even though the final decision-maker had a pure motive, the jury must have concluded that he would not have imposed discipline if the subordinate officials had not brought the charges in the first place.

Gilbrook v. City of Westminster, 1999 WL 318412 (9th Cir. May 21, 1999).

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UPDATES

Subsequent treatment of decisions reported on in earlier issues:

Berger v. Hanlon (December 1997 issue), vacated and remanded 1999 WL 320818 (U.S. May 24, 1999).

Bollinger v. San Diego Civil Serv. Comm'n (May 1999 issue), now reported at 71 Cal. App. 4th 568 (1999).

Burrell v. Star Nursery, Inc. (April 1999 issue), now reported at 170 F.3d 951 (9th Cir. 1999).

Erickson v. Aetna Health Plans of California, Inc. (May 1999 issue), now reported at 71 Cal. App. 4th 646 (1999).

Hollister v. Benzl (May 1999 issue), now reported at 71 Cal. App. 4th 582 (1999).

Khawar v. Globe Int'l, Inc. (December 1998 issue), cert. denied, 1999 WL 162827 (May 17, 1999).

Vuillemainroy v. American Rock & Asphalt, Inc. (April 1999 issue), now reported at 70 Cal. App. 4th 1280 (1999).

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