June 1st, 2017

Crashing Through the House

Daniel Sajewski drover his mother’s Mercedes right through a house

When I write a headline entitled “Crashing Through the House,” it’s most likely because the car and driver literally crashed through a house.

We start our little story back in 2012 when 23-year-old Daniel Sajewski, Jr. crashed his father’s Mercedes in through the front picture window of a home and right out the back. You can see the picture here — in through the front and right out the back.

Ya’ think there might be some law out of this? That’s why I’m here. You’re welcome. Let’s get started.

First off, and coming as no great surprise to anyone, Sajewski was bombed out of his mind, blowing .30 on the breathalyzer, more than a wee bit over the limit in any jurisdiction that has any laws at all. (Depending on which story you read, he was downing shots of Jack Daniels, tequila and drinking beer.)

And then there was the part about Sajewski asking his then-girlfriend Sophia Anderson to take the rap, and claim she was the driver. He promised, according to news reports, to cover her legal bills and take her on vacation.

I’m betting you’ve already guessed that this deal, shall we say, came apart.

Sajewski had, at the time, six outstanding warrants on six different cases, suggesting he was not exactly a leading light in his community. He’d been charged with drinking on the subway, possession of marijuana and failure to complete community service for a previous conviction.

He had a record for petty theft and other drug possession charges, as well.

Sajewski ultimately pled guilty to driving while intoxicated, reckless endangerment and making false statements. He was sentenced to one-and-a-half to three years behind bars.

Now this is the part where I come in, the civil side. State Farm, which insured the house, coughed up 180K in insurance proceeds resulting from Sajewski’s demolition derby. (The two 90+ year old sisters who lived there were both unharmed.)

State Farm wanted its 180K back, and sued the driver, Sajewski, Jr. as well as his father, Daniel Sajewski, Sr., as Papa actually owned the car.

Papa Sajewiski said, in effect, let me out of this suit because my ne’er-do-well kid took the car without permission. Not my fault!

Junior Sajewski supported his papa, and agreed that he took the car without permission. (I know! You’re shocked that Junior would help out his papa after wrecking the house of a couple of 90+ year old sisters and wrecking dad’s fancy car!)

But. Not so fast. In New York, it’s not just drivers of cars that are liable for the damage, but the you see, the owners also. (VTL 388(1)). This makes sense because owners are in the best position to evaluate the competence of the people they lend their cars to.

In the trial court, the judge said in legally sounding language, no way, no how, you ain’t getting out of this suit. Owners are responsible too.

But Papa pointed out that, while there is a strong presumption of permissive use of the vehicle, that presumption is rebuttable. And look here at the two affidavits of Papa and Junior, both saying that there was no permissive use.

Papa appealed. And yesterday, he got shot down again, this time by the Appellate Division, Second Department.

The court was pretty clear about this. For even though the testimony of no permissive use was un-rebutted by any other source, that is not always enough. While the court didn’t write the back story with four-part harmony (and feeling), it had the briefs. And they noted that the improbability of a story, or the interests of the witnesses, could effect how a jury perceives the evidence. The court wrote that:

[i]f the evidence produced to show that no permission has been given has been contradicted or, because of improbability, interest of the witnesses or other weakness, may reasonably be disregarded by the jury, its weight lies with the jury’

So the question will, one day, go to a jury, where it belongs. Because questions of fact aren’t for the court.

And given the long history of legal trouble that Junior’s been in, I’m willing to bet that a jury will wonder why Papa didn’t hide the keys if he really didn’t want Junior to drive. And I’m not the only one to wonder why, as the court noted:

Daniel [Junior] had access to the appellant’s [Papa] residence. Further, the key to the vehicle was kept in a “central location” inside a bin located in the kitchen of the appellant’s residence. Additionally, on previous occasions, Daniel had been permitted by the appellant to drive other vehicles owned by the appellant.

Just remember this story the next time you loan a car to someone that might be somewhat less than reliable. Because you can be on the hook.

January 19th, 2017

But For Video (Pedestrian Rundown Version)

The moment before this woman was run down while in the cross walk

The video is graphic. Too graphic. A woman clearly in the cross walk gets hit by a mini school bus.

The story from this Brooklyn accident at Nostrand Ave. and Ave. M, comes courtesy of the Daily News.

Why write about it? Two reasons.

First, because the initial police report claimed the woman was out of the cross walk. Buried deep in the article:

The initial police report said the victim was “not in an intersection” but the video shows her clearly walking in the crosswalk. Police could not immediately account for the discrepancy.

How and why could that “error” happen?

The victim, Ayse Ayaz, suffered four broken ribs, a broken collarbone, a broken leg, and a swollen bloody eye. Ayaz woke up in the emergency room. The information about being out of the cross walk, in other words, was unlikely to come from her.

Rather, the false information most likely came from the driver of the bus. The video was found later by a local business.

I’ve covered bus accidents in the past on this blog, on the subject of trying to alter the “facts” in favor of the bus company and against the victim. Most notably, I wrote up in 2012 how NYC Transit Authority bus drivers weren’t permitted to call the police after collisions, as required by law, but rather, had to radio in to a supervisor who would come “investigate.”

The questions for this bus collision would follow the same path: Who was the first person the driver called? Was it 911 or some dispatcher? If 911, was the story told at first different from the one told to the police later? If it was to the dispatcher first, why?

This is the nature of litigation. People will lie to protect themselves, which appears to be what happened here. Except now there is something very rare — hard proof of what actually happened.

Over the years readers have seen me approach many litigation issues here with a cynical eye, not quite trusting the statements that may be made in support of what position or another. There’s a reason.

It’s not in the least bit uncommon for a driver to tell a wholly different story than the victim, or the eyewitness standing on the corner, if that person actually sticks around and the police actually write that person’s name down in a report.

I know, you think the cops always write down the names of witnesses. It ain’t so. And the failure to take a couple of minutes to do so can cause years of litigation.

In fact, this same scenario happened to me, when I witnessed a pedestrian hit by a car. I gave my name to both the driver and to the cops. And you know what? I was told by one of the attorneys at my deposition that the cops never wrote my name/number down in the report. If the driver didn’t have my name and number also, this piece of evidence (my eyewitness account) would have been lost to the actual participants.

If not for this video in this bus-pedestrian collision, the bus driver would no doubt have an insurance company attorney accusing the pedestrian of being a liar when she claimed she was in the cross walk. She would, in effect, have been victimized twice.

I said there were two reasons to write, and now comes the second: This is all something to think about when you hear people talk about a “litigation explosion” and tort “reform,” as if problems were caused by the victims themselves.

It’s worth nothing that if the injuries of the victim are bad, it wouldn’t be a private insurance company paying for the losses. Not only could the victim be deprived of full compensation, but also, some of those costs of caring for the injured could be shifted to you and I, the taxpayers.

And so it is that I started this piece with a bus-pedestrian collision. But end it at a public policy discussion, which is important due to the shift in the political winds.

December 1st, 2016

Is Uber Trying to Kill You?

An Uber drone advertises uberPOOL above traffic on a highway in Mexico City on June 17. Photographer: Brett Gundlock/Bloomberg

I bet it sounded like a great idea in the boardroom: Hey, let’s find a nasty traffic jam, with lots of stop-and-go traffic and fly some drones over it with advertising!

Wow! Great idea! Captive audience! Stuck in their cars!

And they will just look up in the air at our drones while in this stop-and-go traffic and read our advertisements about car-pooling!

What could possibly go wrong?

I once ripped on Geico and the Port Authority, for stupidly planning to put Geico ads in a crowded toll booth plaza. The signs would have touted “safety” while diverting the attention of drivers to read the signs in that crowded plaza. Genius.

Human error from distracted driving is the leading form of injury from vehicle collisions. Advertising schemes that distract drivers on crowded roadways can only makes things worse.

So Uber is taking things to the next level past Geico and the Port Authority, cranking stupidity up to 12, because the eventual injuries that would most certainly happen from the continuation of such a program shouldn’t be joked about by saying the stupidity merely goes to 11.

The activity is taking place in Latin America, where Uber hopes to increase their market share.

But can this Latin American experiment be replicated on New York’s roadways? Well, even if they could somehow get FAA approval to do it, my guess is that the company would get sued out of existence for the very predictable, and quite inevitable, injuries that such distractions would be a cause of.

This wouldn’t simply be negligence, but in my view, recklessness, that would subject the company to punitive damages.

And you thought that Uber drivers merely being distracted themselves by looking at their devices was bad.

(hat tip Kashmir Hill via Twitter)

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:

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.

Is the Uber app a defectively designed product, as it actively encourages distracted driving? Is it inherently dangerous?

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.

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

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