December 2011 Archives

Improving Technology: Avoiding Distracting Driving or Precursor to Product Liability Claims?

December 26, 2011

Star Trek Communications Panel.jpgIn light of all the concern about distracted driving being the new drunken driving (as if it were something fashionable, like "40 is the new 30"), we've been hit on both sides. On one hand, the government is proposing to take away our cellphones while we are in the car--this includes stop lights, this includes hands-free devices like bluetooth. On the other hand, we have emerging technologies becoming standard on new cars that have their own hands-free devices that automatically connect with our cell phones.

Ford is rolling out MyFord Touch (developed in conjunction with Microsoft) on more and more of its vehicles. It has many functions, including a hands-free calling feature and for sending/receiving text messages via voice, but it allows voice commands to control many car systems, for example, the climate. It's a little Star Trek for our own private shuttlepods (Majel Barrett Roddenberry's voice not included).

The warning on Ford's website states:

Only use mobile phones and other devices, even with voice commands, when it is safe to do so, and use extreme caution. Driving while distracted may take the driver's focus off the road, which can result in loss of vehicle control, accident and injury. The driver's primary responsibility is the safe operation of the vehicle.

These are the same types of warnings that we get with GPS devices and MapQuest directions. The MyTouch system is infinitely more hazardous, however. Why's that? Well, let's extend the Star Trek analogy for a minute.

Remember the Enterprise from The Original Series (TOS)--the one with Kirk? That starship had buttons all over the place. Big, colorful, buttons coming out of every flat surface. It's like a keyboard--you can concentrate on one thing, say, the viewscreen showing that Klingon battlecruiser making a beeline for you, while simultaneously firing phasers, all without having to look down.

Fast forward 150 years to Star Trek: The Next Generation (TNG)--the one with Picard. No three-dimensional buttons. Flat panels everywhere. Like the Ford MyTouch, the screen changed depending on what buttons you pressed--like an iPad. Hit this button and its a word processing program with new buttons to push; hit that button and it's the latest iteration of Angry Birds with all new buttons in different places.

It must have been more difficult to do two things at once in TNG--you have to pay close attention to the "keyboard," or else you might do something stupid like hit the self-destruct button or steer the ship into that asteroid over there. Now, space is vast, and the chances of Wil Wheaton hitting another ship in a head-on collision while texting jokes to the Reading Rainbow guy are remote. On the road, however, those dangers are much more likely.

A lawsuit against Ford for some future hypothetical accident could work in one of two ways. Say Patrick Stewart (yes, we're still working the Star Trek references) is driving his 2012 Ford Explorer. He's using MyTouch to get news and stock quotes while warping (at the speed limit) down the road. Well, he veers off the road and hits a tree. He files a product liability suit against Ford, basically claiming defective design. In states like Maryland, contributory negligence is likely to be a problem, but under these facts I could see an automobile accident lawsuit being successful at least some of the time.

Let's put Patrick Stewart back in the captain's chair for the second example. Same situation, but he veers into oncoming traffic, hitting William Shatner. William Shatner could sue Patrick Stewart, who could implead Ford. Or, William Shatner could sue Patrick Stewart and Ford directly. An interesting issue is whether Ford owes a duty to William Shatner, who was not driving a Ford in the example. In this day an age, I think most courts would accept that as a jury question.

As much as I love technology, it is really a hazard in the car. Please--go boldly, but safely, down the road.

Recalled Cars: What If A Defective Vehicle Caused Your Auto Accident?

December 22, 2011

Cadillac recall.jpgCadillac announced a recall of their 2010 and 2011 SRX vehicles (yeah, I had to look it up--I drive a Saturn) because of potentially defective transmissions. This recall affects 8,789 cars. The problem is that a transmission shift cable may come out of the transmission bracket. The National Highway Traffic Safety Administration explains the potential problems:

THE DRIVER MAY BE UNABLE TO SHIFT THE TRANSMISSION OUT OF GEAR, RESULTING IN NO MOTION OR THE SHIFTER MAY INACCURATELY INDICATE THAT THE TRANSMISSION IS IN PARK WHEN IT IS NOT, ALLOWING THE VEHICLE TO ROLL AWAY AND CAUSE A POSSIBLE CRASH.

The interesting question here is how a recall like this affects Maryland automobile accident lawsuits? The answer: it depends on the type of case.

Let's say that Cadillac rolls backward down a hill, hitting another car at about 10 miles per hour. The person hit had just taken off his seatbelt after parking the car, had some minor injuries, and about $3,000 in medical bills (a hospital visit and a short stint with physical therapy). If settlement negotiations fail, that person will probably file a lawsuit in the District Court of Maryland for $15,000 or less. The Cadillac owner's insurance company will supply her with a lawyer to defend the case. With a maximum loss of $15,000, that lawyer will have a hard time justifying the massive expense required to get an expert to testify that the car accident was Cadillac's fault (through General Motors), as opposed to the owner's fault. That's the type of thing you need an expert for, so the defense lawyer will probably just admit liability and fight the case on damages (essentially arguing that it was a low impact collision that could not have caused much, if any, injury).

Let's change the hypothetical: the driver of the care behind the Cadillac parked his car, grabbed his groceries and began walking to the sidewalk. He crossed in front of his car, then was hit by the Cadillac, which pinned him to his car, caused massive internal organ damage, and required several surgeries to fix. That case could very well pass the $30,000 District Court threshold, particularly if the victim has permanent injuries.

In this second example, the plaintiff will file a car accident lawsuit against the driver of the Cadillac. The Cadillac driver has three choices: (1) defend the case like the District Court case with no expert testimony about the defective vehicle; (2) hire an expert to argue that this was a product liability case and that the owner was not negligent; or (3) bring General Motors into the case, and have an expert testify that the accident was their fault.

Here, depending on the extent of the plaintiff's injuries and the perceived monetary value of the legal claims, the plaintiff may choose to hire his own expert to work out the defective vehicle angle. That's going to cost a lot of money. Or else, he may just amend his claim to include the manufacturer, then sit back and let the owner and the manufacturer duke it out. Whether the jury rules that the accident was caused by driver negligence or manufacturer defect, the plaintiff has someone who will be paying his medical bills. One situation where spending money on a defect expert would be worth the expense is where there is limited insurance money available, compared to the plaintiff's damages. If so, the car manufacturer will certainly have enough to pay the court's final judgment.

Big Rigs Getting Even Bigger?

December 19, 2011

There are 15.5 million truck drivers in the United States, and over 2 million tractor-trailers. AAA reports that trucking accidents account for 40% more fatal accidents than passenger cars. The trucking industry is now asking Congress to permit them to increase the national weight limit on tractor-trailer trucks almost 20% from 80,000 to 97,000 pounds. If approved, it won't be uncommon to see triple-tractor-trailers on the roads.

Larger trucks may be more economical for moving goods across the United States, but the cost is too high. The risks are obvious--heavier trucks are harder to stop, and more likely to cause significant damages and injury when they can't stop in time. Not only will this mean more trucking accidents, but it will mean more serious and fatal truck accidents, even here in Maryland.

This is a slippery slope--if Congress approves this change, the trucking industry will be asking to increase the maximum levels yet again. It is important to tell them no. See this AAA video clip for examples of the injury dangers of large trucks.

Statistics:

  • 2006: 385,000 large truck collisions
  • 2006: 4,732 fatal truck accidents, killing 4,995 people (12% of all highway fatalities)
  • 2006: 106,000 people injured because of truck collisions