May 2012 Archives

Lawsuits Against Text-Message Senders: Conclusion

May 29, 2012

Judge David Rand.jpgOur last post on Distracted Driving Lawsuits: Suing the Sender ended with one question: what will happen?

As predicted, the New Jersey trial judge dismissed the sender of the text message. The judge stated that it was reasonable for text-senders to assume that text-receivers will act responsibly. He also noted that drivers must deal with numerous distractions: phones, GPS devices, and road signs, to name a few.

Were I to extend this duty to this case, in my judgment, any form of distraction could potentially serve as the basis of a liability case.

The basis for the judge's ruling is important--it rests on the premise that a text-sender has no duty of care to other drivers. Under Judge Rand's interpretation, it would not matter if the text-sender knew that the driver was driving at the time, and it would not matter if the text-sender knew that the driver would read those messages while driving. I think that's the right decision, but it would have been easier for the judge to rely on the specific evidence in this case--the receiver was himself sent the last message, so reading a message did not cause the collision.

That case will move forward to trial against the texting driver, though the lawyer for the motorcyclists indicated that he will appeal the judge's ruling as to the text-sender.

Distracted Driving Lawsuits: Suing the Sender

May 24, 2012

distracted driving accident attorney.jpgIn a distracted driving lawsuit where phone use is the culprit, the recipient of the e-mail or the text message is obviously at fault, and a proper defendant. Drivers must use reasonable care, and if they are not able to pay attention to driving, and that lack of attention causes an accident, then they are responsible for any injuries or damages.

What about the sender of a text message that, when read by the driver, causes inattention long enough to lead to an accident? Does the sender have some duty toward the injured victim, and did the sender violate the standard of care expected of a reasonable texter?

One lawyer, Stephen Weinstein, thinks there might be a case here: David and Linda Kubert filed a lawsuit against text-receiving driver Kyle Best and his girlfriend, text-sender Shannon Colonna. No one can argue that the injuries aren't significant: Mr. and Mrs. Kubert, riding a motorcycle, each lost a leg in the accident.

Evidence from the New Jersey auto accident lawsuit indicates that the texting couple sent over two dozen text messages that day. The lawyer alleges that the girlfriend knew her boyfriend was driving while she was texting him. Complicating matters, the last text sent was from the driver--indicating perhaps that he crashed while he was typing. So, he wasn't reading her message at the exact time of the crash, but was sending his own message.

First, even if it is against the law to text, that law does not necessarily translate into an automatic finding of negligence. The girlfriend, while she may have known that the boyfriend was driving, likely did not know what speed he was traveling at, whether he was parked, or whether he was stopped at a red light.

Another question is one of recovery. This lawsuit isn't practical in most cases for another reason--how will Mr. and Mrs. Kubert get paid? If the driver has automobile insurance, that insurance will be used for the claim. The girlfriend's automobile insurance won't be responsible, mainly because she was not driving a car. So, unless her homeowner's insurance somehow covers this, the only source of recovery will be her personal assets (lawyers don't usually go after personal assets unless the defendant has a lot of them--one problem is that after substantial verdicts, most defendants will claim bankruptcy rather than suffer the long-term indignity of wage garnishment).

One analogy in favor of liability, though, is to dram shop liability (we don't have that in Maryland, though the law may be changing). In that case, when a bartender serves alcohol to someone who is clearly drunk and who later gets into an accident, the bartender may be responsible.

Last week the case was before a judge (Judge David Rand of the Morris County Superior Court) on a motion to dismiss the girlfriend. The ruling is pending. My bet is that the girlfriend gets dismissed. However, it's an interesting and innovative theory of liability, being raised by a smart lawyer. It will be interesting, whatever the ruling.

More on the Text-Sending Lawsuit:

Motorcycle Death Statistics

May 23, 2012

The Governors Highway Safety Association released statistics on motorcycle accident related deaths for 2011 (Motorcyclist Traffic fatalities by State: 2011 Preliminary Data). The 2011 data goes through September, as the remainder of the year's data is not yet finalized:

  • 2011: 3,580 motorcycle deaths (January to September)
  • 2010: 3,641 motorcycle deaths (January to September)
  • 2010: 4,502 motorcycle deaths (full year)
  • 2010: 65 motorcycle deaths in Maryland (January to September)
  • 2011: 52 motorcycle deaths in Maryland (January to September)
  • 2010: 1 motorcycle death in the District of Columbia (January to September)
  • 2011: 3 motorcycle deaths in the District of Columbia (January to September)

Motorcycle Death Statistics.png
There are some theories about why the motorcycle fatality statistics are not decreasing with the standard auto accident fatalities, which are down 1.7% in 2011. These include:
  • Economy: more motorcyclists on the road to save gas/cheaper transportation
  • Helmet use: there are only 19 states with mandatory helmet laws, and several are considering repealing their laws.
  • Weather: several states had better weather this year, meaning more motorcycle trips, which in turn leads to more motorcycle accidents

The most important factor in preventing motorcycle deaths is helmet use. Motorcyclists in Maryland, the District of Columbia and Virginia are required to wear helmets, but those states are in the minority. Regardless of whether use is mandated, all motorcyclists should wear helmets for their own safety.

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If you've been injured in a motorcycle accident or an automobile accident, contact us at 443.850.4426, or online for a free discussion of your legal options.

Pre-Impact Fright: Fear of an Impending Collision is Compensable in Maryland

May 21, 2012

Skid Marks.JPGThe 1998 Court of Appeals decision in Beynon v. Montgomery Cablevision ruled that pre-impact fright is compensable in Maryland auto accidents. We all know what pre-impact fright is--those brief moments before an impending collision when you realize that another car is going to hit you. This is the moment that causes you to freeze, to shut your eyes, to pray, to hold your breath. It's that moment that the adrenaline shoots through your system.

The old rule was that damages could be recovered for injuries like fright only with physical impact, but that rule was done away with in 1909. For the run of the mill auto case though, a better case is made with some element physical impact or injury--a close call doesn't usuallycut it. The Beynon case was about whether pre-impact fright was compensable in a wrongful death case where the driver was killed in the collision. In that tractor-trailer collision, a driver collided into the rear of a truck. The allegations against the truck driver were that the truck did not have proper lighting in the rear, making it difficult to see. Leading to the point of impact were over 71 feet of skid marks--a clear indication that the driver knew what was coming. He died on impact. The trial jury decided that $1,000,000.00 in pre-impact fright damages were sufficient (according to Maryland law applicable at the time, that figure was reduced to $350,000.00).

A primary concern of the court was to prevent fabricated and speculative claims. Particularly in wrongful death cases, the family could claim that there was pre-impact fright, but it can be a difficult thing to prove. Unless you have over 71 feet of skid marks.

Pre-impact fright is one element of what are called "non-economic damages." Those include things like pain, suffering, mental anguish, inconvenience, and disfigurement. They are the things that cannot be calculated with logical certitude, like medical expenses and car repair costs.

D.C. Traffic Accident Statistics

May 20, 2012

DC Auto Accident Stats (05-20-12).pngThe nearly mid-year District of Columbia traffic death statistics are out (up through May 11), and D.C. is doing very well. Credit is of course going to D.C.'s safety initiatives: education, better signs, safety officers, speed cameras (Mayor Vince Gray would like one on every corner), etc.... The accident death toll is now six, compared to 14 deaths this time last year. In 2009, there were a total of 16,841 traffic collisions in the District of Columbia.
This could be the result of any number of factors, including general awareness about the dangers of distracted driving. Regardless of the cause, we're thrilled that that drivers are somehow safer.

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If you've been injured in a District of Columbia auto accident, contact us at 443.850.4426, or online for a free consultation.
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AT&T Publishes Teenage Texting & Driving Statistics

May 17, 2012

distracted driving accident attorney.jpgAT&T conducted a survey of 1,200 teenagers (ages 15-19) to learn more about driving behavior and attitudes toward texting and driving. Here are some of their conclusions:

  • 97% of teens know that texting while driving is dangerous
  • 70% of teens believe that texting while stopped at a red light is dangerous
  • 54% of Hispanic teens admit to texting while driving
  • 41% of Caucasian teens admit to texting while driving
  • 42% of African-American teens admit to texting while driving
  • 80% of Hispanic teens admit to using their phones while at red lights
  • 71% of Caucasian teens admit to using their phones while at red lights
  • 70% of African-American teens admit to using their phones while at red lights
  • 46% of teens send between 21 and 100 text messages per day
AT&T's Infographic is pretty good--it highlights a lot of information designed to help promote their "Texting & Driving: It Can Wait" campaign. Two things that caught my eye:
  • At 65 mph a car travels the length of a basketball court in a single second
  • Texting takes your eyes off of the road for an average of 5 seconds
Like many providers, AT&T has designed a mobile app (DriveMode) to prevent text messages from reaching a driver.
For more information on distracted driving, check out our Charm City Lawyer Blog posts and past Maryland Car Accident Lawyers Blog posts. If you believe that you have been injured because another driving was driving while texting, contact us at 443.850.4426, or online for a free consultation.

What do Doctors, Drivers, and Pedestrians Have in Common?

May 14, 2012

Distracted pedestrian.jpgNone of them should be texting. We've blogged before about distracted driving and even distracted doctoring. Now, Fort Lee New Jersey is issuing tickets to pedestrians who ignore traffic signals or who jaywalk while looking down at their phones.

There were 117 tickets issued in one month, at $85.00 a pop. The question here, as with all governmental cell phone regulation, is whether the government should be taking this parental role? Opponents of regulation say that the government should just leave us alone, and that if we are stupid enough to text and walk across the street, we deserve to get run over. Proponents say that the problem does not just affect those who text--it affects the motorist who hits us, the person who hits them, and costs taxpayers money when someone isn't insured and needs medical care.

The problem is of course, widespread. A New York State Senator commented in an ABC news article on one of two deaths in Brooklyn:

A gentleman was standing on the corner ready to cross the street wired into his iPod, he crosses over and walks right into an NYC bus.

Here in Maryland, one of the problems is the law. Let's assume these facts:

  1. A pedestrian texting while crossing the street at a crosswalk--he has a walk signal
  2. A driver runs a red light, hitting the pedestrian
In that circumstance, the driver will undoubtedly argue that the pedestrian was contributorily negligent--that is, the pedestrian was partially responsible for his own injuries. The pedestrian would argue that, even if he was paying attention, he wouldn't have been able to get out of the way in time. However, the issue might be close enough to get to a jury (and you never know what a jury is going to do in a case like that). The pedestrian's case gets even worse if he is not crossing at a crosswalk.

Maryland's contributory negligence law is harsh--we're one of a very small number of states that still have this archaic rule. Basically, if the person filing the lawsuit was the negligent cause of his injuries, even by 0.01%, he cannot win a lawsuit. In other states, the plaintiff would be able to recover 99.99% of his damages. This makes sense, because the other guy had the most negligence.

distracted runner.jpgThese types of laws might bleed over into non-texting scenarios. What about runners? Almost every runner has an iPod or MP3 player plugged into their ears. If she doesn't hear a vehicle, and get hit even though the driver was speeding excessively, the runner might not be able to recover for her injuries.

Now, laws like this don't always provide evidence of what's called negligence per se. Negligence per se means that violation of the law is presumptive evidence that the lawbreaker was negligent. Whether or not that applies, the fact that the law becomes part of the public consciousness and the expectation of behavior means that an absolute defense of contributory negligence is more likely.

So, whether Maryland chooses to adopt these "distracted walking" laws, the safest course of action is to walk carefully, head up, and phone tucked away.

Contact Us
If you've been in a Maryland auto accident where cell phones, text messages, e-mails or other forms of distracted driving played a role, contact us at 443.850.4426, or online for a free consultation. You will speak directly to a lawyer from your first call. Don't let your case be handed off to a paralegal.

Using iPad to Wirelessly Present Your Case At Trial

May 11, 2012

iPad Jobs.jpgThe iPad is great--you know it, I know it. It's slick. It's refined. It just oozes "cool." Lawyers are now starting to use the iPad for work. Many use it to complement their laptops. Some use it now instead of a laptop. It's even making the rounds at depositions, used to hold thousands of pages of documents and potential exhibits.

When it comes to trial, though, most attorneys ruin the cool. They have an iPad. They have a projector. The iPad is connected to the projector, by ugly wires (an iPad to HDMI adapter, and HDMI cables). They are tethered to the projector, by ugly wires. At that point, it doesn't look nearly as sophisticated.

Lawyers: there is one way to present your case, and to maintain the ability to walk anywhere you want in the courtroom, with your iPad in hand. The jury will marvel at your grace, and will respect your technological sophistication. Especially compared to the defense lawyer who is using a foam-core blow-up and a slide rule.

Here's what you need:

  1. iPad

  2. Projector and projector screen

  3. Verizon Jetpack.jpgMiFi device (available through most cell phone companies--I use Verizon's JetPack

  4. Apple TV.png
  5. Apple TV (it's not a TV, but a device that connects to a TV or projector

  6. HDMI cable (to connect the Apple TV device to the projector

The MiFi device is used to create a portable wireless network, and it bridges the gap between the iPad and the Apple TV device. The Apple TV device then collects the signals from the iPad, and transmits them to the projector through the HDMI cables. That leaves you free to roam the courtroom.

Contact Us
If you want to learn more about how to use technology at trial for your garden variety automobile accident cases or medical malpractice cases, contact us at 443.850.4426, or online for a free consultation.

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Honda Wins Small Claims Lawsuit

May 10, 2012

Honda Civic Peters.jpgThe ongoing saga of one woman's pursuit for justice against Honda is finally at an end. Heather Peters opted out of a class action lawsuit, and took her case to small claims court in California. She alleged that her Civic Hybrid did not receive anywhere near the gas mileage as claimed by Honda; and that the vehicle was harmed by software updates. She prevailed at the small claims court level, with a verdict of $9,867.19.

Honda appealed the decision to the Superior Court, where the court heard the case from the beginning (called a de novo trial). A three-day trial was held. Honda convinced the judge that Honda was permitted to advertise the EPA-approved gas mileage numbers, even though the numbers were later adjudged inflated by the EPA. Interestingly, the Court found that "[t]he majority of users report mileage very close to the EPA estimates."

In her press release, Ms. Peters commented that:

It's a sad day when regulations designed to protect consumers are used against them. I'm certain that the EPA and FTC never intended to shield Honda from liability for advertising claims that a court of law determined to be false.

Under California law, the Superior Court appeal was Ms. Peters' last chance. Ms. Peters also observed in closing out her press release that people who opted out of the class action lawsuit may still be able to opt back in. Perhaps that's an indication that she wishes she just took what little money she could get.

For my part, Ms. Peters was brave to go about it at her own, and she showed remarkable mastery of social media to bring attention to her cause. Even if she was ultimately unsuccessful, she brought much public attention to the problem. Honda claims that it has won 16 out of 17 similar cases brought since January.

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Self-Driving Cars: Maryland Accident Prevention?

May 9, 2012

Self-driving car.jpgWe've all heard about Google's research into self-driving cars. Now the National Highway Traffic Safety Administration (NHTSA) is getting into the mix, believing that 80% of automobile accidents can be prevented if vehicles are given the ability to communicate with each other (see article, Detroit Free Press).

This "vehicle-to-vehicle" communication and related technologies can be used to implement crash-warning systems, and lane departure alerts. According to the NHTSA's Administrator:

Our research shows that these technologies could help prevent a majority of the collisions that typically occur in the real world, such as rear-end collisions, intersection crashes, or collisions while switching lanes.

Actual self-driving cars aren't really on the NHTSA's radar yet, but they promised to look at the technology as it develops.

Off-the-Job Injuries While Treating for On-the-Job Injuries

May 2, 2012

WC poster.jpgIf you are injured while seeking medical treatment that is required in order for you to go back to work, when the original injury was a Maryland workers' comp injury, is the second injury a workers' compensation claim, as well?

The Court of Special Appeals answered that question no. Here's what happened in Washington Metropolitan Area Transit Authority v. Jan Williams, just decided last week.

The claimant injured his back and left knee while on-the-job on April 15, 2008. A year later, he was attending a specialized type of physical therapy known as work hardening. He had a session, and went to his truck during the lunch break. After the lunch break, he got out of his truck and walked back to his therapy. While in the parking lot, another driver backed up into him.

The Court of Special Appeals ruled that, for a second injury to qualify as compensable under Maryland Workers' Compensation law, there must be a direct and material relationship between the two injuries. In this case, the second injury was not, strictly speaking, caused by the first injury (rather, it was caused by the circumstances surrounding the treatment of the first injury). This is an issue of proximate causation as lawyers use the phrase--a direct and material relationship.

To further clarify the reason they found for WMATA in this case, the court illustrated circumstances where a second injury is compensable:

  • The first injury impaired his mobility, preventing him from avoiding the car
  • The first injury caused dizziness, causing a fall and a second injury
  • A first injury required medical treatment, the doctor committed medical malpractice, and caused a second injury
Finally, the Court considered whether the second injury was compensable under Maryland workers' compensation in a second way--because it was also incurred "on-the-job." Severing the second injury from the first injury, the question is whether the second injury was on-the-job because the employee needed to be there to get back to work. The employer required it. That issue was not decided by the lower court, so the Court of Special Appeals remanded it back to the trial court (with instructions to remand it back to the Maryland Workers' Compensation Commission) for consideration.

Even if the Commission rules against the claimant (I don't think it will), he can still recover by filing what is known as a third-party claim against the driver of the car who hit him. He still has a standard Maryland automobile accident claim and lawsuit available to him.

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