May 14th, 2019

Dear Media: Can you stop using the word “accident”?

It’s a funny place to find a story on personal injury law — inside the pages of Outside Magazine. But when a good point is made, it makes no difference where that point is found.

Outside gets involved because the article is called: How We Talk About Drivers Hitting Cyclists. It seems that bicycle riders aren’t too keen on getting hit by vehicles that are much bigger than they are, and getting squashed or worse. And so, an outdoors magazine hits a junction with personal injury law.

Their story starts with a triathlete out for a spin getting bounced off the grill of a Ford F-150 and soaring through the air to an unhappy landing that was, thankfully, survived, albeit with significant injuries.

But the story isn’t really about that one rider, or the many other bicycle riders that have been hit and injured or killed by cars and trucks.

The story is about how the media writes about those crashes, with the subtle (mis)use of language leading to a shifting of blame, or a minimizing of the significance on how the crash took place:

News stories often play a key role in shaping public understanding of traffic safety. And when news stories victim-blame or fail to convey the larger context in which these crashes take place, they do deep injustice to the victims and the conversation about road safety in general.

In the past, I’ve noted that the word “accident” is a poor language choice to describe a motor vehicle collision or other mishap, as that word is the same one used for a deer that bolts into the road. Why use the same word for an unavoidable crash as you would for one that is avoidable with reasonable care?

Even the NYC Police Department noted this problem in 2013 when it changed its Accident Investigation Squad to the Collision Investigation Squad.

Sometimes, of course, this misuse of language is intentional. Such was the case when Senator Rand Paul decided to excuse the negligence of BP during the Deep Water Horizon blowout in 2010 that polluted the Gulf of Mexico:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,”

Well, yeah. It wasn’t Mother Nature at fault there. It was humans. And the question was who to hold accountable for the disaster. That assumes, of course, that Senator Paul actually cared about accountability.

OK, I digressed. Let’s return to the unintentional biases of language that gets used to whitewash responsibility.

Outside writer Joe Lindsey breaks it down further that I simplistically had on prior occasions, with these points that come from two studies on the use of language in media:

Two new studies on inaccuracy and subtle bias in mainstream-media reporting about driver-cyclist crashes highlight the extent of these issues. What they show make clear just how deeply rooted the problem is—and how difficult it will be to fix.

Those studies fixed on three issues related to language: First, words that indicated whether the cyclist or the driver was assigned blame for the crash; Second, the use of passive, clinical language that reduced the human role; and Third, whether the stories framed the crash as a one-off episode or put in a larger context of road safety.

In reviewing 200 serious crashes, researchers found that in 80% of them, news writers described the main actor in the crash as a vehicle —- not as a person:

“Sometimes the story would say that the person was hit by a car, which is passive,” says Tara Goddard, an assistant professor of urban planning at Texas A&M, who was involved in the study. This language distances the driver’s actions from the crash.

Cars, of course, don’t generally get up out of the driveway on their own to run someone down. A driver needs to be involved.

And then there’s the use of the word “Accident.” The other of the two studies found that in 189 news reports of cyclist fatalities in crashes in a Florida county over a ten-year period, that “accident” appeared in 48 of them; another 12 used the word “incident.” In 55 of the stories, no mention was made of a human driver.

Of course, except for those cases where nature has intervened (the deer bolting into the road example) virtually every crash involves human error of some kind. But the stories, oft times, simply don’t reflect that.

And third, there was the victim blaming. While this may be an age-old staple of both criminal and civil defense trial lawyers, the objective media writer doesn’t stand in the shoes of an advocate.

Why, for example, would a news writer mention that a cyclist who was hit by a truck moving 60 mph note that the rider wasn’t wearing a helmet? It wouldn’t matter, so why skew the reader toward a narrative that is utterly irrelevant?

Presenting factoids, the Outside piece argues, takes the light off of significant safety factors (for example, road design) to make the crash seem like a one-off instead of part of a larger community safety problem.

This factoid presentation is then compounded, sometimes, by bias, or simple sloppiness of an investigator who provides initial thoughts to the press — thoughts that are often wrong, as the Gothamist has pointed out.

The desperate need for speed in reporting these days, with news cycles that have evaporated, means that initial information (often from anonymous police sources) is often both wrong and repeated.

But the limitations and problems of the need to file stories quickly are, by now, well appreciated by the press. And it means that they need to be doubly careful in that choice of words: Careful that crashes are not downgraded to mere accidents; that drivers/riders are held to blame instead of vehicles; that collisions are seen within the broader context of community safety; and that victims are not chastised as blameworthy based solely on irrelevant factoids.

March 14th, 2018

Gunfire in the Classroom is No Accident

The story popped up yesterday that a teacher in California “accidentally” fired his gun in a classroom. He was teaching a class in gun safety at the time.

Headline after headline read that way: Accident. Accident. Accident.

No. No. A thousand times no. ‘Twas no accident. It was negligence. There’s a difference, for this was preventable with the exercise of reasonable care.

I covered this ground in 2013 when the NYPD changed its Accident Investigation Squad to the Collision Investigation Squad. According to then Police Commissioner Raymond Kelly, “In the pqast, the term ‘accident’ has sometimes given the inaccurate impression or connotation that there is no fault or liability associated with a specific event.”

An accident it when a deer bolts into the path of a car. A collision occurs when a second car is following too closely and slams into the first. One may not be avoidable, no matter how much due care you use. The other, very much avoidable.

Accidents do not simply “happen.”

And so it is with guns. Accidents don’t really happen.

As Jim Wright points out at Stonekettle, “there are no accidents with guns.”

For example, if a child picks up a gun to play cops and robbers with a sibling and shoots it, it is not an accident. It was negligence by the gun’s owner for leaving a loaded pistol in an unsecured place.

Part of the problem here is that the use of the word “accident” has been ambiguous. Similar to bimonthly meaning either twice a month or every other month. Or the word “sanction” meaning something has been approved (a sanctioned event) or is a punishment.

Accident has been unfortunately used in both matters where there is fault and matters where there is not. But there is a massive difference in meaning, particularly with news events such as this, where a shot is fired in a classroom.

Media headline writers should recognize this problem. They are, after all, in the word smithing business.

It’s lazy to use the word accident when it doesn’t actually convey the true meaning of what happened. It makes negligent conduct appear as if there was nothing that could be done to stop it.

And that is the media being negligent, for with the use of due care, the persistence of such ambiguous conduct can easily be crippled.

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.

May 21st, 2010

Rand Paul: “Sometimes Accidents Happen” (And the Lesson for Jury Selection)

Kentucky’s Republican Senate candidate Rand Paul was critizing President Obama for critizing BP for the gulf oil spill, and this spilled out of Paul’s mouth:

“And I think it’s part of this sort of blame-game society in the sense that it’s always got to be somebody’s fault instead of the fact that maybe sometimes accidents happen,” Paul said, who is a darling of the Tea Party movement.

And that brings us to personal injury law since, on a day-to-day basis, we deal with wrecks and “accidents” all the time. And that brings us to the issue of selecting juries.

Some folks, like Paul, are quick to dismiss “accidents” as if they are a part of nature. And that is because the word is used in two completely different contexts; accidents that are avoidable and accidents that aren’t.

Take this example: A deer bolts onto a highway at night and collides with a car. I think that, in most circumstances, people would attribute that to an act of nature. But after the first “accident” a second car plows into the first. Is that also part of the “accident”?

Now we have multiple causes. And the primary cause of the second wreck — note that I don’t use the word accident here — is that the second car was simply following too closely to the first. This is the case in almost all rear-end collisions. Each driver has a duty to anticipate a problem and must be prepared to stop in time.

The operative legal premise here is this: Could the “accident” have been avoided with the exercise of reasonable care?

Vetting the Rand Paul types in jury selection is pretty critical, as they are more likely to simply shrug their shoulders with an “accidents happen” attitude. As we can see in the BP fiasco in the gulf, Paul doesn’t appear interested in whether the oil spill was avoidable with the exercise of due care.

So what does the savvy trial lawyer do to find these people in the jury pool? Answer: Let them talk. Ask open ended questions, not the yes-no types. Jury selection isn’t about finding jurors with the same ethnicity as your client, but finding out about their underlying value system.