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Employee Handbook.jpgThe 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.

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distracted driving accident attorney.jpgA 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.

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Colossus of Rhodes.jpgColossus is a software program used by many insurance companies to determine the value of automobile accident claims and lawsuits. The software program gets a bad rap from plaintiff’s lawyers–probably because it undervalues those claims. Now, a former Allstate and Encompass Colossus expert and a former Texas insurance commissioner are informing the Consumer Federation of America’s latest report, Low Ball: An Insider’s Look at How Some Insurers Can Manipulate Computerized Systems to Broadly Underpay Injury Claims.

That report details the means by which adjusters can use the software to produce lower evaluations of claims. Insurance adjusters can discount medical bills, evaluate injuries differently than doctors, ignore the likelihood of future medical care, and decide that the claimant/victim was partially at fault for the auto collision.

It sounds like the report is concerned that insurance adjusters might be doing their job.

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Oil Truck.jpgThe federal government has closed a loophole that was the cause of untold numbers of trucking accidents. Truck drivers who hauled material to and from oil drilling sites were limited to spending 14 hours of work before resting–the problem is that the former rule did not include time at the drilling site. So, truck drivers could spend 14 full hours on the road, and any amount of time on duty loading, unloading or performing truck maintenance at the site. Other duties could easily increase the time between significant rest periods to 15, 16 or 17 hours.

The New York Times wrote about the problem a few weeks ago, and included heartbreaking stories of preventable deaths. In one, the driver had been working for almost 21 hours straight. The data is striking: one-third of all oil worker deaths are caused by highway crashes, compared to one-fifth in all industries combined. That article may have motivated the Department of Transportation to change the rules, and hopefully save some lives.

Perhaps most disheartening is that the employers sometimes allow or encourage fatigue-related truck accidents:

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Teen driver.jpgThe Washington Post published an article last week, Graduated Licenses Can Save Lives, Says IIHS. It discusses the process for teenage drivers to receive a license. Here’s the data:

  • Teenage driving fatalities are down over the past few years
  • Estimate: with stronger laws, twelve states could cut their fatal teen driving rates by half or more (500 lives saved, 9,500 collisions prevented)

All states and the District of Columbia now use graduated driver licensing (GDL). This means that teens start learning to drive with a supervised learner’s permit, then have approval to drive in non-high risk situations after passing a road test, then receive full privileges.

Data from all states were analyzed, and it turns out that the states with the most restrictive GDL laws have the fewest fatalities. Some suggestions include:

  • Precluding younger teens from driving (South Dakota allows learner’s permits at age 14)
  • Setting stricter night-driving provisions with earlier driving curfews
  • Setting bans on teen passengers
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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.

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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.

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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)
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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.

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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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