If you needed any more reason to put the phone down while driving, here's an incentive video.
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Memorial Day kicks off most dangerous one-third of the year for teen drivers (those from ages 16 to 19. The one hundred days from Memorial to Labor Day are risky-in 2012, there were almost 1,000 people killed in accidents involving teen drivers. Over half of those killed were teens, and this says nothing of injuries.
The reasons seem clear--it is summer, so school is out, teens are driving more frequently, and driving more often in unfamiliar areas. Additionally, teens are less frequently sole occupants of their vehicles--they are often driving with friends, perhaps a more significant source of distracted driving than cell phones. The National Safety Council estimates that passengers increase the risks of crashing by 44% or more.
For us non-teen drivers, it means we should be even more aware while on the road. Inexperienced drivers like teens, particularly distracted teens, have slower reaction times. Aggressive driving near those novices is more likely to result in a crash.
For parents of teens, we can take a page from the book of many states, which restrict passengers for newly-minted drivers, often prohibiting passengers in the first year or two of driving.
More on Distracted Driving Accidents
This month Maryland drivers will have to live up to the state's new expectations. There are two important new rules for drivers, effective October 1, 2013.
In the continuing march of more severe cell phone laws, the legislature has seen fit to increase penalties and make enforcement easier. In 2010 drivers were prohibited from talking on cell phones without a hands free device. These were only secondary offenses, meaning that drivers could only be cited if they were violating some other law (like speeding). In 2011 the use of a cell phone for writing, reading or sending text messages also became illegal, and it was set as a primary offense, meaning that drivers could be cited even without violation of another law.
However, it's difficult to prove that a driver was sending or reading a text message. Perusing a website? Using GPS navigation? Playing Angry Birds? Maybe not good driving practice, but not technically illegal.
The new law can be found in Maryland's Transportation Code, section 21-1124.2.
SeatbeltsOf course, everyone should wear seatbelts. Everyone in the front seat must wear a seatbelt, or they can be pulled over and given a $50.00 fine. This is a primary offense. Rear passengers must also follow the law, but violation is a secondary offense.
Stay safe, Marylanders!
The laws of most states are coming around to what public perception (not to mention science) understands very clearly--drivers are distracted when they use handheld cellphones for talking, texting and e-mailing. Those distracted drivers are more likely to cause accidents. Most states have some sort of cell phone laws. In Maryland, for example, we prohibit the handheld use of cell phones for any purpose (even while stopped at a red light).
So, in Maryland and other states, we rely on hands-free technologies, like Bluetooth. Many vehicles are now coming equipped with their own hands-free devices. My Honda, for example, allows me to push a button on my steering wheel to access my voice-recognition speed dial. Even cooler, when I receive text messages, my car will read the messages aloud, and allow me to dictate a response.
Here's the problem: these technologies may be no safer than the behaviors they were designed to replace. A new report, sponsored by AAA and conducted by the University of Utah, has determined that hands-free technologies don't actually make us safer. The CEO of AAA calls it "a looming public safety crisis." The report (found here). In the study, they used some rather high-tech looking devices to measure driver reactions and brain activity when listening to the radio, talking on a cellphone (with and without hands) and using voice-activated talk-to-text features.
Contrary to popular assumption, using the talk-to-text features were among the most distracting for drivers, who experience "a type of tunnel vision or inattention blindness."
For its part, the automotive industry wants more research, and believes that the study "focuses only on the cognitive aspects of using a device, and ignores the visual and manual aspects of hand-held versus integrated hands-free systems." I understand wanting more research to peer review this study, but the fact remains that drivers using this (according to the Utah study) are distracted. It's not an issue of what is better (hands versus hands-free), it's an issue of whether any of it is safe.
Putting the safety factor aside, the question is how lawyers will deal with this in real-world cases of accidents that happen while a driver is using these hands-free features. Lawyers should argue that the research is out there, and the public is aware that these features are dangerous (or at least potentially so). Heck, even NPR had an article on it. The hurdle will be whether a reasonable person would avoid using the technology--if so, it can be evidence of negligence. If not, the judge or jury could ignore it. We predict that this will be useful evidence--some day. But probably not until the first automobile manufacturer pulls hands-free from its line of cars.
Often when an auto accident involves a business vehicle, there are two specific types of claim that should be alleged against the business--the first is that the business is liable simply by virtue of employing the negligent driver; the second is that the business is liable because it did something incorrectly.
No. 1: Respondeat Superior
Respondeat superior is Latin for "let the master answer." Lawyers frequently use Latin, mostly because that's how lawyers in ages past were trained, and as a profession we are hard-pressed to put things in the regular, understandable English. What it means is that the employer is going to be responsible for the negligence of his employee if the injury occurred in the normal scope of employment. There are many important exceptions to this, but in general, if a UPS driver falls asleep at the wheel and rear-ends another car, UPS is going to be responsible for that accident.
No. 2: Employer Negligence
The other type of claim that can be brought for an auto accident is some type of negligence of the employer. Here, the claim is that the employer did something wrong to cause the accident. Some examples include:
- Negligent hiring, retention, supervision or training: if the employer failed to do a background check that would have revealed excessive speeding tickets, road rage and a vehicular manslaughter conviction, the employer probably should not have hired that employee. Likewise, the employer must train and supervise their employees, and if they cannot act in accordance with the law, they should be fired.
- Failure to create or enforce policies and procedures: particularly in this age of distracted driving, it could be argued that an employer must have a company-wide policy on distracted driving. Are phones allowed in the car? What about hands-free phones (which some studies suggest is just as dangerous).
In many ways, the corporate negligence is more important than the employee negligence. When an employee makes a mistake, it can often be chalked up to "just a mistake." When a corporation makes a mistake, however, it can have long-lasting and foreseeable consequences, including the deaths of others. Those mistakes are so much more preventable, with a little bit of planning.
If you or a loved one has been injured in a business-related automobile accident, contact our personal injury lawyers at 443.850.4426, or send us a confidential message online.
I am not unmindful that, in this business, I profit from the misfortune of others. Sometimes when clients are asking me questions about medical treatment I tell them that what is good for you (getting better quickly) is bad for your legal case, and vice-versa. Honestly, I wish that all of my cases were small, basic soft-tissue cases that resolved after a short week or two of treatment.
But they aren't.
We see the worst of the worst. We settled one case earlier this year where a gentleman was minding his own business at a stop light, and he was hit from behind by a woman who first claimed that she blacked out, then later hired an expert to state that she fell asleep because of undiagnosed sleep apnea (amazingly, if proven, that is a complete defense to responsibility). The poor guy was in shock trauma and had many surgeries, including one to remove a section of his bowel. That's a situation he will never totally recover from. Fortunately, there was a good insurance policy, and the case settled before trial for over $700,000.00. Clearly, the defense didn't place much stock in that argument.
All of this is to say that most accidents are preventable. The most preventable accidents nowadays are distracted driving accidents, particularly those where cell phones are the culprits. The ingenuity of tech-folks in finding ways for parents to combat youthful law-breaking is encouraging. One nice app we've come across is the Canary Project. It can notify parents when their child is in a speeding car or a car that goes out-of-bounds. It sends alerts when children talk or text behind the wheel. It can even "ping" your child so you know where he or she is at any given time. It costs somewhere between $10.00 and $15.00 for life.
There are other apps out there, and one thing this one doesn't do is block incoming calls and texts. There might be good safety reasons to keep that feature on, but we wish Canary gave parents the option.
My kids aren't old enough for cell phones yet, and they are certainly not old enough to drive. But, even at age 3.5 and 2, they have demonstrated love and aptitude for my cell phone, laptop and iPad. I didn't grow up with the cool gagets that they will grow up, and I feel a strong pull from my cell phone when I'm driving. It's going to be worse for them, and as a parent, my job is to protect them.
Questions about a distracted driving lawsuit? Contact our personal injury lawyers at 443.850.4426, or send us a message online.
I finally replaced my ten-year old car a few months ago, and have been happily learning about all of the new technology in modern cars. It's like a candy store, especially compared to my old vehicle which was limited to power locks and a car alarm.
One feature that I was surprised to learn about was voice to text. When a text message comes in, the car will connect to my phone and will ask permission to read it. The voice recognition software will pick up my command (yes or no), and the pronunciation, even for uncommon words in text messages, is remarkable. Then, it will extraordinarily ask me if I want to reply. I speak, and it will create a responding text message. This is also amazingly accurate.
Two things: first, this will make things a little more complicated for attorneys who are litigating distracted driving lawsuits. In Maryland, as you know, it is against the law (not to mention unsafe) for drivers to use handheld phones while driving. That means no e-mailing, no texting, and no holding the phone up to your ear. The exception is the hands-free option--right now, we are allowed to use the phone as long as it is through some sort of hands-free technology, like bluetooth. One common source of discovery in accident cases is for the negligent driver's cell phone data--was the driver receiving or sending texts at the time of the accident? If so, that is important evidence to show distracted driving. Now, however, lawyers must find out if the negligent driver's vehicle has these voice-to-text features, because those are within the boundaries of the law.
The second part of this, though is that the claim could be made that it is unsafe to use those features. One study (here's the Mashable cliffs notes, and here's the study) has found that there is no appreciable difference between manual texting (using the phone and typing out a message) and using a voice-to-text software like Siri. It sounds counter-intuitive, but it appears that the same degree of concentration is involved whether a driver is looking at the phone or not, and it yields the same amount of distraction.
Research like this hasn't really penetrated the consumer consciousness, but as it is developed it is likely that it will be recognized by the public and legislators. There are bound to be some states which will proscribe the use of a phone, even hands-free use, while driving. In a lawsuit, the standard of care is what a reasonable driver under similar circumstances would do. Could there be a day when a reasonable driver would not use hands-free?
For more information about distracted driving, or if you were hurt in an automobile accident, contact us at 443.850.4426 or online.
The Federal government wants to know whether you've been texting and driving. They have authorized grants to two states, Connecticut and Massachusetts, for anti-texting enforcement programs. Each state will get $275,000.00.
This money will be used to train police officers on how to detect texters--not only from their patrol cars, but from highway overpasses and more covert locations. I'm not sure how this will work, exactly. One police officer on a bridge, watching traffic come toward him. That officer radios to another officer on the road below, and tells him which car to pull over. Maybe it's as simple as that.
One thing is for sure--some people who flaunt Maryland's cell phone use laws are getting crafty--many keep the phones down below window-level to avoid police detection. Of course, that makes it harder to see the road, which is more likely to cause crashes.
Maryland automobile accident lawyers should have an arsenal of discovery ready to determine when illegal cell phone use may have contributed to an accident. In some cases, this involves written questions, requests for production of cell phone records, and subpoenas to cell phone companies.
Oftentimes, pedestrian-versus-car accident cases are among the toughest to litigate. It's rare that we see that perfect liability scenario:
The pedestrian, observed by traffic cameras, dutifully waited her turn to cross from one end of the street to the other. The approaching traffic stopped, she got the white "walking man" signal, and after looking both ways, she proceeded across the cross walk to the other end. At that point, the independent and disinterested witness observed, the defendant ran the red light at twice the speed limit, hitting the pedestrian."
What we usually see is something like this:
The pedestrian, unobserved by anyone or anything, was crossing the road in the middle of the street, about 20 yards from the crosswalk. He said there was no traffic approaching at the time. When he was about 2 feet from the opposite curb, he felt the impact from a vehicle that "just came out of nowhere." Of course, he was listening to iPod at the time of the collision.
The reality is, in a state like Maryland where contributory negligence is the order of the day, plaintiff pedestrians probably lose 75% of the time (yes, this is a completely off-the-cuff and made-up-on-the-spot statistic). And, lawyers won't even take the really unlikely case. Contributory negligence is the rule that says, even if the defendant driver is 99.99% negligent, a plaintiff must lose his entire case if he is 0.01% negligent (we're hoping the Court of Appeals might change this arcane rule of law soon).
U.S. Secretary of Transportation Ray LaHood said recently that 80% of pedestrian deaths in 2010 were due to jaywalking. A little research indicates that 79% of pedestrian deaths were at "non-intersections." Not quite the same as jaywalking, and not quite the same as "caused by." As the article states, sometimes there is no crosswalk anywhere in the area; sometimes cars jump curbs and kill people at "non-intersections."
Of course, this is all largely irrelevant. The important point that Lahood wanted to make is that pedestrians should pay attention to traffic, not their cell phones, when crossing the street. Surely that's going to save a couple of lives.
With so many accidents caused by distracted driving, it's a fair bet that, in any given accident, the negligent driver was on a handheld phone or handling e-mail or text messages while driving. In many cases, that fact is not important: if the defendant admits liability, or if liability is clear (for example, the garden variety rear-end collision).
In other cases, though, proving that the defendant was distracted can go a long way toward showing that their version of events is likely wrong (if not an outright lie). Yesterday I deposed a representative of AT&T to find out everything I could about the phone usage of an automobile accident defendant at the time of the accident.
These types of depositions take a lot of legwork. When I get the transcript, I'll post it on the website. If you have a case where you suspect illegal cell phone use at the time of an accident, here are some things to think about:
- Even before a lawsuit is filed, immediately send a preservation letter to save any cell phone owned by the defendant, and the content of any text messages on the phone at the time of the accident Find out what cell phone carriers and cell phone numbers the defendant had at the time of the collision
- Either get the defendant to sign an authorization, or send a subpoena requesting all cell phone records (including voice, data and text messaging records) for the time of the collision
- Once you have those records, work with the cellphone carrier to set up a corporate designee deposition to decipher what the records mean--they typically come to you in spreadsheet form with various codes and abbreviations
- During the deposition, identify the meaning of every column and term generically
- During the deposition, figure out if you can verify whether there was any use of the phone during the collision
AT&T, for example, does not keep records of the content of text messages--they can only tell what time those messages were sent or received (they can't tell what time the messages were read). In a catastrophic injury case, a forensic computer specialist may be able to dissect the phone to determine that type of information. Your best bet is showing a string of text messages back and forth near the time of the accident. Even better is a phone call log. Data usage (Apps, Facebook, internet usage) from a smartphone can be more difficult--many programs run in the background, so the fact that a phone is uploading or downloading data does not mean that someone is actively using the phone.
Finally, be sure to find out in discovery whether the defendant gets e-mail on his phone. If so, request a copy of all e-mail messages sent and received near the time of the accident.
The New Jersey couple who were hit by a texting driver while riding their motorcycle settled their case against the driver for $500,000. Both Mr. and Mrs. Kubert, who were on the motorcycle, lost a leg because of the motorcycle accident.
We wrote about this story in May (Distracted Driving Lawsuits: Suing the Sender, and Lawsuits Against Text-Senders: Conclusion). There, the trial judge ruled that the plaintiffs did not have a case against the person who sent the text message, only the driver who read it. The lawyer in the case is appealing that decision, though I still wonder how he will get paid if he wins.
The $500,000 settlement only applies to the driver of the car. It looks like that is the policy limit, so the driver's insurance paid everything it had.
For more on distracted driving lawsuits, see our archives.
Given the prevalence of cell phones and smartphones, the likelihood is that many if not most automobile accidents are caused by distracted driving. The NHTSA estimates about 3,000 fatal distracted driving auto accidents in 2011. One study suggests that cell phones may be the cause of 1.6 million accidents per year, which is 28% of all auto accidents. Maryland has been improving the laws year after year, but some research questions whether existing laws around the nation are good enough.
As far as punishment, some believe that higher fines will increase compliance, just as it did for seatbelt laws. New Jersey is considering a $200 fine for the first offense with a license suspension for 90 days for the third offense. Connecticut has already increased fines to $125 for a first offense. In Maryland, the fines are relatively light. Talking on a cell phone can cost $40 for a first offense and $100 for subsequent offenses. Sending or reading e-mails or texts is punishable by $70 fine for the first offense and $110 for subsequent offenses.
We should beef up the penalty provisions--larger fines and points (right now, there are no points issued for speaking on a phone for the first offense unless it causes a collision). Financial penalties provide most people with an incentive for good behavior, which will lead to safer roads.
The scourge of distracted driving is so bad that I predict many attorneys will be adding to their lawsuits complaints against employers for failure to have policies, procedures and protocols to discourage distracted driving. First, a little bit about agency.
An agent is someone who is working for someone else. When an employee gets in his car to go do something for his employer, he is the agent of the employer. When the driver negligently causes a Maryland auto accident, both the driver is responsible and the employer is responsible.
Because distracted driving is such a big deal right now, employers are jumping on the bandwagon to come up with policies about when their employees can and can't use cell phones while driving. Some companies are prohibiting the use of handheld phones; others are prohibiting all cell phone use, even hands-free conversation. Where an employer does not take the step to set a policy, they are setting themselves up for more liability in the event of an accident. Realistically, they will be on the hook for any auto accident injuries regardless of whether the company was negligent, but it gives one more reason for the judge or jury to decide that the company is responsible. Also, it puts forth negative conduct by the company, which makes a jury more likely to decide against them if the question of liability (whether the employee was negligent) is unclear.
A driving simulator called One Simple Decision, made by Virtual Driver Interactive http://www.driverinteractive.com/index.php is attempting to show driver's the short and long-term consequences of texting and driving. It starts with the driver driving, and then instructs the driver to begin texting. When the (hopefully) inevitable collision occurs, the driver goes through a first-person interrogation by police, medical personnel, and a judge in an attempt to show chronic texters the real-life consequences of distracted driving.
The allure of a simulation like this is the desire to beat it, like any videogame. I know the dangers of texting and driving, but (I suspect like most people), I think that I can do it relatively safely. So what happens when a driver beats the simulator? Is that a license to text and drive? I'd like to know the simulators statistics.
Regardless, it is clear that in a controlled situation, the driver is going to bring his or her A-game. In real life, there will be less attention to detail, and a higher likelihood of a distracted driving accident.
I did a drunk driving simulation at a museum in Colorado when I was a kid--the simulation would go through what it was like to drive when sober versus drunk. Granted, I didn't know how to drive then, but that simulator didn't work at all (I think something was wrong with the driving wheel). For $42,000 per simulator, One Simple Decision should be a little more realistic.
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