April 5th, 2016

Non-Driving Text Sender May Be Liable in Crash

Query: 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?

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)

January 15th, 2013

Another Day, Another Accident

Car accident, Nov 21, 2012

First off, let me say this: No one was hurt. Regular readers know that I don’t generally write about local car accidents — unless there is an appellate decision or something legally noteworthy about them. But this was an accident that my family was in.

It was the Wednesday before Thanksgiving, and I was in the front passenger seat with Mrs. NYPILB behind the wheel. We made a right at a light from one main road to another. And out of a parking area on our right came an SUV trying to cross the road. Presumably to get to the other side.

Except that we were passing in front of him; and he t-boned us. Right into the passenger side, with the brunt of the force on the back door where my son was sitting, engrossed in a book.

There are several things that might race through the brain at this point, of which these are three:

1. The Parent (Are my kids OK, and how do we make sure there is no further potential for accident or injury?)

2. The Lawyer (The other driver failed to yield the right of way)

3. The bureaucrat (Closely linked to the lawyer, this one seeks documentation to make sure that the “i”s are dotted and the “t”s crossed with respect to insurance companies.)

Now this is not the first time I’ve written about an accident that I was in. It happened five years ago when a car with no lights and no license plates stopped in the middle of the parkway at night. I was driving and I stopped in time. One of the cars behind me did not.

The view of the inside, with the door closed, where my son was sitting

And you know what? I’m no better prepared today for being in an accident than I was back then; because accidents are unexpected. If we expected them, well, we have a better chance of avoiding them.

Because they are unexpected, we often don’t really know, at the time of the impact, the answers to the questions that may one day flow if someone was really injured and an investigation or lawsuit ensued.

How fast were you going?

What lane where you in? (How many lanes were there?)

Where did you look in the seconds before the accident?

Where, exactly, were you?

While that last question might seem a bit silly, it really isn’t, most especially if it is a highway that you have driven hundreds of times. Your brain might well be on auto-pilot and while you know generally where you are, the exact location isn’t something that you were keyed in to. You might know, for example, that you needed exit 56, and that you were somewhere around exit 30, give or take. You don’t know exactly, because it isn’t particularly relevant.

The reality is that most of our “recollection” of an accident is our brain reconstructing what has happened as we spin our heads around and say WTF? And when we reconstruct things, we tend to fill in the blanks. This is a mental process that I like to refer to has “normal human behavior.” The psychs like to call it reconstructed memory, and will tell you that the brain abhors a vacuum so it provides the filler it believes to be logical.

But it’s odd when your own brain may be doing the the reconstructing, not someone else’s.

This fill-in-the-blanks view of an accident will generally lead to conflicting accounts of an event. People see things through the prism of their own experiences, both past and present and upon review of the event that just took place, and fill in the missing blanks. We may now see mileposts and exit markers, when before we were just driving merrily along knowing that we were roughly 15 minutes from our exit and keeping an eye on the car in front of us. We see intersections and people (aka witnesses) that we hadn’t really noticed or appreciated before. Because the accident, almost by definition, happened very fast and we had no time to react.

And, of course, the adrenal gland has decided that this would be a magnificent time to give the body a good old shot of hormone that sends the heart and mind racing.

After an accident, nothing is normal at all. But that moment when the mind and body are reeling is the moment the brain is imprinted with the “details” of recollection. Since those recollections are experienced through the prisms of our own histories, the lawyer might well “see” something different in an accident than the doctor, mechanic or cop.

All of this is something that the reader likely already knows, on an intellectual level. And yet, when one actually goes through the event, it doesn’t really matter. The god’s eye view of what happened — that fly on the wall view of things — may well be distorted by emotion, by experience and by reconstruction.

I wrote this post six weeks ago and have been sitting on it ever since, hoping I could come up with some kind of snappy conclusion or insight. But I can’t, other than to say that the most important thing is immediate safety. For us, sitting in the roadway after the accident near a busy intersection, that mean moving the car immediately out of danger into the parking area where the offending SUV came from.

I remember my father telling me, when I was learning to drive some 35 years ago, that if I got a flat tire on a bridge that I should not stop. Drive it off the bridge, and to hell with any additional damage to the car. It is, after all, just a car.

Safety first.

June 15th, 2012

Apple, Siri, Distracted Driving and the Future of the Automobile

A CNET mock-up of an Apple device integrated into a car (though I expect Apple will do a hell of a lot nicer job than this)

Two movements are rapidly coming together and will go head-to-head in the coming years:

First is the push to ban driving while on a cell phone — even if it’s a hands-free device. This is due to so many accidents occurring from distracted driving. There are 10 states that already ban it. The problem is not with drivers taking their eyes off the road, but a failure to concentrate. The National Highway Transportation Board wants to ban it in all 50 states. A sample story is here, that includes some data:

According to the National Highway Transportation Safety Administration, more than 3,000 persons died in 2010 because of distraction-related accidents, National Transportation Safety Board Chairman Deborah Hersman said last December in calling for a 50-state total ban on the use of cell phones and other portable electronic devices. “It’s time to stand up for safety by turning off electronic devices when driving.”

Now contrast this to the rapid movement of technology, with Apple at the forefront. Just days ago they announced that they were ditching Google maps in favor of their own, and that these would be incorporated into future cars, including BMW, General Motors, Toyota, Mercedes-Benz, Honda, and Audi.

What does that mean? It means that drivers will be able to use Apple’s Siri voice system to input destinations, and Siri will respond without the need to punch in data. From CNET on the announcement:

The new button should be a welcome change for drivers who are used to manually entering their destinations into a GPS, or laboring through complicated voice-activated menu trees to perform simple tasks, like changing the radio station or placing a phone call. By leveraging Siri’s natural language voice control platform, theoretically drivers will be able to keep their hands on the wheel and their eyes on the road to minimize distracted driving.

With Apple integrated into the car, it seems likely that such devices would also include the music that people have on their iPods/iPhones, as well as the ability to use those phones. One need not be a genius to foresee Apple integrating maps, music and phones into one device in the car, and allowing a simple wireless sync either with the handheld device that remains in your pocket or with its cloud based service. Texting and emailing could be voice-activated.

This means a dramatic rise in driver activity, for what would likely be an extremely popular device. So the future, it seems, is likely to see significant increases in drivers interacting with electronics, albeit it in a safer way than in the past. No one, for instance, will need to take their eyes off the road to punch buttons on radios.

Looking into my crystal ball I see more accidents, of the rear-end I-wasn’t-paying-attention type. As opposed to those that took their eyes off the road and swerved into another lane as they spun the radio dial.

How legislatures (and the National Transportation Safety Board) deal with this remains to be seen, but I would expect vigorous debate to continue that focuses on the issues of the role of government and consumer safety.

November 22nd, 2011

NY Top Court Reshapes Auto Accident Law (Revamps The Way Courts Determine “Serious Injury”)

Last month I wrote about three cases being argued in New York’s Court of Appeals that had the potential to reshape the entire face of auto accident litigation and the definition of “serious injury.” That decision has now come down, and it reverses growing trends in the lower appellate courts that had thrown out cases as a matter of law if they didn’t have a doctor to show a “contemporaneous” loss of motion, to come within the “serious injury” threshold for the No-Fault law. The courts were refusing to allow juries to act as fact finders.

Unless you are intimately familiar with the subject — and why this is one of the biggest decisions in auto litigation in years — you should read this post first and then return: Court of Appeals Hears Argument On “Serious Injury” in NY Auto Cases (What Should They Do?). In fact, I didn’t just write about this last month, but 13 months ago when I speculated in Perl v. Meher that this issue would come to a head. And two years ago I drew quite similar conclusions to today’s decision.

So yes, I’ve been watching this awhile, as has the entire personal injury bar. Because this is very, very big.

There were three cases before the Court in which plaintiffs had their cases dismissed by judges (two on summary judgment and one after a plaintiff’s verdict).

At issue before the Court were three of the categories of “serious injury” that contain impossibly vague language:

“permanent consequential limitation of use of a body organ or member”;
“significant limitation of use of a body function or system”; and
“a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute such person’s usual and customary daily activities for not less than ninety days during the one hundred eighty days immediately following the occurrence of the injury or impairment”

The unanimous decision today in Perl v. Meher held that the lower courts were over-reaching in making factual determinations as to what constitutes a “serious injury” and taking cases away from the jury where it belongs if “contemporaneous” loss of motion findings were not made. While hewing to skepticism about many personal injury cases due to problems of fraud, the Court held that:

There are cases, however, in which the role of skeptic is properly reserved for the finder of fact, or for a court that, unlike ours, has factual review power.

The biggest problem in determining the extent of the injury was in measuring it. I noted previously that the very act of measurment can be a problem if doctors are not litigation-savvy and quantify measurements in their notes.

This was also the view of the dissent in one of the three cases today, that I had quoted extensively from last year, and the Court agreed with those positions, explicitly throwing out the concept of the need for “contemporaneous” range of motion testing. The Court wrote:

We agree with the Appellate Division dissenters in Perl that a rule requiring “contemporaneous” numerical measurements of range of motion could have perverse results. Potential plaintiffs should not be penalized for failing to seek out, immediately after being injured, a doctor who knows how to create the right kind of record for litigation. A case should not be lost because the doctor who cared for the patient initially was primarily, or only, concerned with treating the injuries. We therefore reject a rule that would make contemporaneous quantitative measurements a prerequisite to recovery.

How good is this decision? Let’s just say that the language the court used above matches my own fairly well, regarding penalizing those injured individuals who seek out their own doctors instead of those that are litigation savvy. I wrote this bit back in March of 2009:

New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.

When the Court of Appeals agrees with you, then it’s a good day.