May 23rd, 2016

Uber Cars are Uber Dangerous (The high cost of cheap taxis)

My dad told me a short story this winter, when three grandkids flew down to Florida to see him. When ready to go to the airport, he offered to call them a taxi. Not needed, they said, we’ll just Uber!

The cars arrived quickly. They were cheaper than taxis. Dad was amazed.

So what is the cost? No, I don’t mean the cost of the airport trip; I mean the cost to society.

The cost is this: Far more people are likely to be injured and killed by companies such as Uber that rely on apps and speed than by regular taxis or car services. And the worst part is, it’s part of the business model.

Uber drivers, you see, must respond quickly to the incoming notification on their smart phones — reportedly within 15 seconds. Otherwise, they lose that fare. Repeatedly make the mistake of failing to quickly respond? Then you lose your ability to work for Uber.

This means that Uber drivers must be diddling with their dinging smart phones while driving and responding. Instead of looking at the road. The Uber business model not only encourages dangerous distracted driving, but actually thrives and profits because of it.

How dangerous is distracted driving?  It’s  three times more dangerous than paying full attention. From the Viriginia Tech Transportation Institute:

The study, entitled The Impact of Hand-Held and Hands-Free Cell Phone Use on Driving Performance and Safety Critical Event Risk, shows that engaging in visual-manual subtasks (such as reaching for a phone, dialing and texting) associated with the use of hand-held phones and other portable devices increased the risk of getting into a crash by three times.

Car and Driver did a test for texting/reading while driving, and compared drunks with a .08 blood alcohol level with those who are sober.  Time and again, those who were texting, or merely reading their texts, took longer to hit the brakes and stop their cars. And when I say longer, I mean the drunks were quicker to the brakes than the text readers. And these were people on a straight road track who knew they were being tested.

Let’s repeat that: Driving while reading texts is more dangerous than driving while drunk.

The conclusion is inescapable: Uber cars are uber dangerous.

There is a deadly cost to getting Uber drivers to their customers so quickly.  And this is a cost not only to passengers, but also to others on the road — most significantly of all, to pedestrians who are not enveloped in that big metal cocoon with seatbelts.

Now take those distracted Uber drivers and put them in New York City, where such vehicles are currently allowed (though they are not yet allowed elsewhere in the state). Our street life hums and thrives on pedestrian traffic.

Uber is significantly more dangerous when people are walking about. The injuries such drivers inflict on pedestrians will likely be far more catastrophic than others, due to the delays in responding to danger by distracted drivers. In other words, an uber accident. (Though collision is the proper word.)

The first lawsuits against Uber drivers are now percolating through the system. They will raise many issues, a few of which are:

  1. Are the drivers employees of Uber or independent contractors? You can be sure Uber wants to call them independent to shield itself from liability as being responsible for their employees’ actions. But just because they want it doesn’t mean they will get it.
  1. Is the Uber app a defectively designed product, as it actively encourages distracted driving? Is it inherently dangerous?
  1. Can Uber be held liable for simply sending messages to people that they know are behind the wheel and moving? I covered this subject last month, with respect to potential liability for friends sending texts to people they know are driving.
  1. Knowing full well the danger, will juries decide that such conduct is reckless, and therefore subject Uber to punitive damages?

Are the issues interesting? You bet they are. For a lawyer. Not so much when you are splayed out on the blacktop waiting for the ambulance.

But perhaps more importantly, Uber will likely go running to the Legislature complaining about its insurance rates —  as it’s inevitable that their drivers will get in more accidents, that the injuries will be more severe, and their insurance will obviously go up as a result. Insurance goes up for drunks, doesn’t it?

Did I say “will” be running to the Legislature? As it happens, they are running there now. A piece in Politico/New York discusses extensive lobbying efforts going on now for them to expand outside New York City. And the bill must go before the insurance committee.

One hopes that, if such bill does appear, and does go before the insurance committee, that legislators pay particular attention to the fact that Uber’s business model is exceptionally dangerous, and that the injuries they inflict to others will be far more catastrophic due to the delays in responding by distracted drivers.

The most dangerous drivers are probably those cruising for fares and waiting for the phone to ding.

If the technology is not going to be outlawed because it’s just too damn dangerous, then Uber (and Lyft and others of their ilk) should be made to carry significantly more insurance than others to cover the costs that they will inflict.

It isn’t enough for Uber to say, “let the injured and killed be damned so that we can make more profit.” And it isn’t enough for the victims and taxpayers to be left paying for the damage that the distracted drivers inflict.

 

April 5th, 2016

Non-Driving Text Sender May Be Liable in Crash

Texting while drivingQuery:  If you’re not the driver of a car, can you be held liable for a collision that occurs when the recipient reads and responds while driving?

Answer: Quite possibly, yes.

In a case last month, not previously reported in any media, a Pennsylvania Court of Common Pleas judge wrote that if the sender had reason to believe that the recipient would read the text while driving, s/he could be held responsible in an ensuing accident.

This horrible distracted driving case apparently arose when Laura Gargiulo took a text from her “paramour” Timothy Fend, and while distracted, hit a motorcycle ridden by Daniel Gallatin. Gallatin was pinned under the vehicle, dragged 100 feet and killed.

In addition to suing the driver and owner of the offending vehicle, the Estate sued the texter, Fend.

The Court noted that there was only one other case in the nation that dealt with the subject, in New Jersey in 2013. In Kubert v. Best, the NJ appellate court held, in a matter of first impression in the country, that under certain limited circumstances it was possible to hold the texter liable. T’he court wrote:

The issue before us is not directly addressed by these statutes or any case law that has been brought to our attention. We must determine as a matter of civil common law whether one who is texting from a location remote from the driver of a motor vehicle can be liable to persons injured because the driver was distracted by the text. We hold that the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.

It was this theory that the Pennsylvania court explicitly followed, quoting the NJ court in writing that, “the sender of a text message can potentially be liable if an accident is caused by texting, but only if the sender knew or had special reason to know that the recipient would view the text while driving and thus be distracted.”

The decision of Judge Hodge is here:Gallatin-v-Gargiulo

Does this mean that the texter will  be liable? No, it doesn’t.

The motion came on as part of, what PA lawyers call, a preliminary objection or demurrer. This is similar to the motions to dismiss made in NY practice that are based solely on the filed Complaint.  It isn’t a question of whether the texter will be liable, but rather, if you take all the allegations in the Complaint and accept them as true, is it possible that the defendant is liable? Or should the case be dismissed forthwith because the concept is hopeless?  (The defamation cases against me were both dismissed this way.)

Citing not only to the Kubert case from NJ, but to Section 876 of the Restatement (Second) of Torts, the PA court said that alleging the texter was acting “in concert” with the tortfeasor gets the complainant over the legal hurdle:

Section 876 – Person Acting in Concert

For harm resulting to a third person from the tortious conduct of another, one is subject toliability if he

(a) does a tortious act in concert with the other or pursuant to a common design with him, or

(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, or

(c) gives substantial assistance to the other in accomplishing a tortious result and his ownconduct, separately considered, constitutes a breach of duty to the third person

So, will a jury one day find the “paramour” liable? My guess here from the cheap seats: It will depend on what those texts actually said, and if he had actual knowledge that his friend was texting him and driving at the same time. Remember, those allegations are only that, allegations. This case has not gone through any discovery yet and there are no details of what was said (if anything).

Is there another lesson in here other than lawyers jockeying over potential liability? Why yes, there is.

Distracted driving kills, which is why self-driving cars will make our roads safer (and kill off much of the personal injury bar). So don’t tempt your friend/relative with texts if you know they can’t resist checking their iDevices.

The plaintiff is represented by the PA firm of Dallas Hartman, which originally posted about the case on its website.

(hat tip for finding it: Mark Bower)

Addendum (5.23.16): It seems entirely possible that Uber and other car-sharing services that rely on apps and texts may be subject to liability this way. See: Uber Cars are Uber Dangerous

 

December 23rd, 2014

Will Google Cars Eviscerate the Personal Injury Bar?

GoogleSelfDrivingCar-642x500

Google’s prototype released on December 22, 2014.
Image credit, Google.

I hadn’t given much thought to Google’s self-drive cars until they unveiled a prototype yesterday. They call this vehicle “the first real build of our self-driving vehicle prototype.”

And it occurs to me that these drivable computers will result in both many lawsuits regarding them, and simultaneously eviscerate a significant portion of the personal injury bar.

First off, some of these cars will crash and people will get injured. And you can bet your last dollar that there will be lawsuits and some class actions regarding that, with many fingers pointed Google’s way.

The potential for error in such heavily software-dependent systems is extraordinary when combined with the limitless potential for collisions. There will be new meaning to the idea of computer crashes.

Google is working hard on that problem, having driven its test vehicles 700,000 miles already in the Bay Area to prevent this.

But.

The issue of lawsuits regarding the cars will, I think, be vastly overwhelmed by a huge reduction in collisions that result from the most common forms of human error. Each year about 30,000 people will die in the U.S. from car crashes, and about two million are injured, and that is after considering a significant drop in fatalities from safer cars and seat belts over the prior decades.

Aside from the role that alcohol plays in being a cause of collisions (not accidents), many are the result of a simple failure to stop in time that results in a rear-endng, or sideswipes from changing lanes without looking, or hitting the unseen pedestrian.

The last generation’s distractions of radio-tuning, cigarette lighting, and screaming back-seat kids has now been supplemented with email, texts, phone talk and GPS devices. Calling distracted driving an epidemic seems like a cliché, but if you’ve glanced into the windows of your fellow drivers, which my kids tend to do and point this out to me  —  “multi-tasking” drivers is another phrase for distracted and inattentive.

And what will those new-fangled cars do? They will see the other cars/pedestrians and slow down or stop despite the driver being lost in thought elsewhere. Or drunk. Or asleep.

With human error crashes reduced by software that automatically stops or slows the car, the number of broken bodies and cars will be reduced. The number of deaths will be reduced. Your insurance premiums will be (theoretically) reduced.

And that means the need for my services as a personal injury attorney will be reduced.  (Likewise reduced will be the need for  trauma health teams and emergency rooms, not to mention car body shops.)

Has anyone ever cheered being put out of business? I am. Because I drive, too.

I’ve been hit in the rear at least four times in the last few years. Every one no doubt the result of an inattentive driver. Thankfully, all of those were minor and they never resulted in an injury. But my lack of injury is simply my good luck.

This is not to say that there won’t be downsides to driving a Google car, not the least of which is the total abdication of the last vestiges of privacy. Google will know exactly where you are going and how long you have been there, and be more than happy to sell that information to anyone with the Benjamins to spend.

Or give that data to the government when it comes a’ callin’, as the government most surely will.

But from a raw safety standpoint, I am left with no other choice than to cheer the company on. Go ahead, Google, make my day by bringing on safety and putting us personal injury attorneys out of business.

OK, you won’t actually put me out of business because, by the time it becomes a mass market item, I will no doubt be retired.

But if I were fresh out of law school, this isn’t the field into which I would head.

Update 1/14/15: See  The Google Car Is A Huge Threat To The Auto Industry (Business Insider)

 

 

September 27th, 2013

Deconstructing the Biomechanical Engineer

NYC Taxi

This was NOT the taxi involved in the collision, but cool old car, no?

Every so often a defendant will hire an expert that will look at pictures of the damage to a vehicle, and then pretend to tell the jury that the plaintiff couldn’t have been hurt based on damage to the vehicle.

You saw that word “pretend,” didn’t you?

When people talk about “junk science” it is usually defense-minded folks looking to blame plaintiffs’ lawyers for some crazy theory of injury. But I see the other side when it comes from less-than-candid defense experts (such as this).

The phrase junk science likely popped into the head (but not the written opinion) of  Justice Arlene Bluth recently, as she sat in her New York County Supreme Court motor vehicle part (which, for you out-of-towners, is our top trial level court).

What Justice Bluth wrote in her recent decision in Neat v. Pfeffer is applicable to anyone in any part of the country, as she gives a road map to exposing the junk. So it is worth reading even if you hale from elsewhere.

The context of her decision is an attempt by Dr. Robert Fijan to testify about both the forces on a car in a collision and whether the plaintiff could have sustained her injuries from this collision. Justice Bluth ruled that while he could testify as to the former, he couldn’t testify to the latter, concluding that if he testified about the injuries it would be junk science (again, not her words, but mine).

Why junk? Read on…

Cynthia Neat was a back seat passenger in a taxi that was rear-ended. Dr. Fijan — who is a Ph.D. and not an M.D., which makes a pretty big difference in this context —  wanted to testify about both the severity of the impact and the claim that the plaintiff could not have suffered a rotator cuff and SLAP tears as well as a torn meniscus in her knee, among other injuries. And he wanted to do this based solely on a single black and white photograph of the taxi she was in.

So Justice Bluth ordered a Frye hearing to test the scientific basis of such testimony to see if if was generally acceptable in the scientific community. And she then proceeded to deconstruct why D. Fijan, who is not an M.D., couldn’t testify about whether the injuries were caused by the collision:

First, there was no significant peer-reviewed literature validating his methods. As per Justice Bluth, noting the difference between theories of force in a lab, and those in the real world:

He testified that in order for a ligament to tear, it must be stretched to a certain point; in order for a bone to break, there must be a specific amount of force and bending. Understandably, experiments cannot be performed on live people – it would not be appropriate to ask volunteers to participate in crashes so their injuries can be measured. Additionally, it makes sense that a 75 year old woman with osteoporosis may suffer a broken bone with less force that it would take a 25 year old man’s bone to break, and a swimmer’s shoulder muscles may withstand more strain than those of a sewing machine operator.

Second, the literature he did use came from the National Highway Transportation Administration, and the standard  crash dummy tests that they use. But which of us is actually a standard human being? Justice Bluth:

…while these studies have been based on biomechanics… the dummies are based upon the 50th percentile in height and weight, not a woman of plaintiffs height and weight. Besides, even if plaintiff happened to be the size of a NHTSA crash dummy, Dr. Fijan failed to show that NHSTA studies reliably predict what force it would take to tear a rotator cuff or cause a meniscus tear, for example; crash-test dummies do not have human bones or ligaments or tendons. Some of the other literature about which Dr. Fijan testified related to sports medicine. Even if studies showed that a pitcher’s rotator cuff could only withstand so many pounds of force/stretching before tearing, there was no proof that this plaintiffs rotator cuff was comparable to that of any athlete. Dr. Fijan cited to studies relied upon to build prosthetic devices and artificial joints; again, while a “normal” knee may take “x” pounds of pressure, who says this plaintiff had a normal knee? Certainly, Dr. Fijan, who is not a medical doctor, could not speak to the condition of plaintiffs body.

For the practitioner preparing to face down one of these experts, that is an awful lot of meat and potatoes, and represents a nice little road map into defeating what I think is junk science.

There are people that are badly injured in low impact collisions, and there are people that walk away from spectacular speedway crashes (Kyle Larson uninjured in this Daytona crash). We are all a bit different from each other, and crashes in labs don’t replicate the myriad ways that cars actually get hit, in conjunction with the different ways a body may be sitting, in conjunction with the different reactions that might occur to the body if there is even a split-second of warning, in conjunction with our own physiques.

My opinion? It’s junk science that doesn’t belong in the courtroom.

Kudos to Steven I. Fried who represents Ms. Neat.

 

March 11th, 2013

Accidents Turn Into Collisions

I thin I need a "Leaving Accident" sign.

I think I need a “Leaving Accident” sign.

Is the word “accident” falling away in favor of the word “collision?” It would seem so.

As per the New York Times yesterday, the New York Police Department will be investigating more car wrecks. In the process, there are two significant changes.

First, investigations will no longer be restricted to those incidents where someone has died, or is likely to die, but now will include cases where “there has been a critical injury or when a Police Department duty captain believes the extent of the injuries and/or unique circumstances of a collision warrant such action.” In other words, serious, yet non-fatal injuries. This is very good for those that were injured, though perhaps not so good if you were the one causing the injury.

But they they are also doing something else in the process, changing the name of the Accident Investigation Squad to the Collision Investigation Squad. This is a fairly significant change in language, for the word “accident” has built into it the assumption by many that an incident was unavoidable, like a deer leaping into the road at the last second. (See the last paragraph of the official letter: Accidents-Are-Now-Collisions)

But why would we use the same word for an unavoidable accident that we use for a very avoidable collision? We shouldn’t. And now that will change.

I had touched on this subject once before — and shame on me for not doing much more and permanently altering my own use of the word — when the BP oil spill occurred in the Gulf of Mexico. At that time,Tea Party darling Senator Rand Paul seemed ready to give a quick pass to BP, yelping “Sometimes accidents happen.

According to Police Commissioner Raymond Kelly, “In the past, the term ‘accident’ has sometimes given the inaccurate impression or connotation that there is no fault or liability associated with a specific event.” The new nomenclature clears that up. Someone please send a note to Senator Paul.

Henceforth, we now have a solid citation for the argument that “accident” should be used for the unavoidable and “collision” for those that are avoidable. Thus, the dear that bolts into the path of your car is an accident. But the second car that plowed into you — because the driver was following too close — is a collision.

Let’s hope our judiciary also gets the memo.