Category Archives: Car Collisions

 

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:

  1. “permanent consequential limitation of use of a body organ or member”;
  2. “significant limitation of use of a body function or system”; and
  3. “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.

 

March 30th, 2011

Scalia Ticketed After Rear-Ending Car

Supreme Court Justice Antonin Scalia, it seems from this news report, started a four-car collision while heading southbound George Washington Parkway across the Potomac River from Washington in Virginia. He was going to work, about to hear arguments in a labor case involving Wal Mart.

Three interesting little tidbits from this story:

Supreme Court Justice Antonin Scalia was ticketed by U.S. Park Police after being found responsible for a four-car traffic accident on his way to the high court Tuesday morning.

Why would Justice Scalia be responsible? Because he hit another in the rear. Assuming local laws down there are the same as up here, that makes him liable for following too close to the car in front of him and failing to see what was there to be seen. No, that “failing to see” is not a political joke, but part of the law. It’s possible, of course, that he has a non-negligent excuse for the accident (for example, the other driver cut him off and slammed on his brakes in traffic). But that doesn’t seem likely from this report from the Washington Post:

Brooke Salkoff saw it all go down. The former NBC reporter told us she was just behind Scalia’s vehicle, a shiny black BMW in the left lane. “It slammed into the car in front of his, which pushed the other two forward,” and caused them all to skew into the right lane, she said.

The second tidbit is this:

“It was a busy traffic area,” [U.S. Park Police spokesman David] Schlosser said. “It just happens.”

Well, no, it doesn’t “just happen.” That makes it sound like an unavoidable accident, like a deer that darts into the road. But an accident like this happens because one (or more) people weren’t driving carefully. Thus, the ticket.

The third tidbit:

No one was injured.

This is possible, but as any doctor that has seen trauma patients will tell you, many to connective tissue and soft tissue structures won’t appear for a day or more, often the result of inflammation that develops after the trauma.

Final note: According to his bio, he spent his first six years as a lawyer at a Cleveland law firm. Did he ever argue a case? If Scalia were to actually show up in court to challenge the ticket, would it be the first matter he ever argued from the courtroom well?

(More at Above the Law)

 

February 1st, 2011

Takara Davis Files Suit (Teenager that Got Jaywalking Ticket While In Coma)

Takara Davis before and after the accident

Remember Takara Davis? She was the 13-year-old Las Vegas girl who was run down on January 4th, and the cop came to the hospital to hand a jaywalking ticket to the mother to give to for her daughter. If her child lived. See, Cop Gives Ticket to Brain-Damaged Girl (Why? I have a theory…) The story went viral with the phrase Takara Davis Jaywalking now returning over 18,000 hits.

Well, two things have since happened. First, the ticket was dismissed on Monday. And today, she sued the driver of the other car. A copy of the Complaint is here: TakaraDavisLawsuit

When I first read about the suit on Above the Law, something smelled very fishy because of the cop racing to the hospital to give a jaywalking ticket to the child’s mother while her kid was in a coma. That isn’t normal behavior, and I figured the driver was connected somehow by being a cop, firefighter, politician, etc.

We now have more details with the filing of suit, which alleges that the driver was going too fast and failed to see what was there to be seen. No surprise there, as that is stock language. But the Complaint also has a few intriguing details:

1. The girl was hit in the center lane of South Durango Drive near this intersection at 2:30 in the afternoon. And that means the driver wasn’t faced with someone simply stepping off the curb and getting hit. I looked at the street view and satellite view on Google maps and Durango seems to be about three lanes across in each direction.

2. She was with a group of other students, making her all the more visible.

3. The car was moving so fast the child’s head smashed the windshield (causing the head injury) and she was then thrown approximately 100 feet. (News stories say 45 mph, but the Complaint doesn’t specify.)

4. The driver didn’t stop right away, but waited a full block to do so.

5. The police permitted the driver to drive away with a shattered windshield, blood splatter, and extensive damage to the hood.

6. The car was quickly repaired before it could be examined by a representative of Davis.

One of the allegations was that of operating a car in excessive speed near a middle school. Remember, this was 2:30 in the afternoon, when kids are leaving school.

What does all this mean? I’m not sure yet, as these are merely the plaintiff’s allegations. The defense will likely present a different portrait, as they almost always do.

But it seems pretty clear that the first reports and initial reactions of many people that the kid must have done something wrong and been completely at fault because she got a ticket, are likely to be wildly wrong. First impressions based on news stories often are. Further details will take quite awhile to hash out.

This tidbit, however, still intrigues me: The driver, according to this news story,was 21 years old. I want to know who, exactly, her parents are and how they are connected. Because I would bet good money that the cops didn’t just let  the driver leave the scene of a serious accident with a busted windshield and then race to the hospital to give a ticket to the teenager, unless the driver knew someone with some kind of influence. The driver is Lusine Vartanyan, and the owners of the car are Armine Arshhakyan and Armen Vartanyan, according to the Complaint.

Plaintiff is represented by Christian Morris and Lloyd Baker of the Baker Law Offices in Las Vegas.

Elsewhere, before suit was filed:

  • True Crime Report: She may have had bleeding on her brain, and she may have been unable to feel or move her arm and leg on the left side of her body, but in this cop’s mind, there’s never an inappropriate time to give a little girl a misdemeanor citation.”
  • Black  Political Thought: “This is coming from the same police department that allowed Paris Hilton to be afforded the opportunity to be arrested in an “unbecoming” manner.”
  • Overlawyered
  • Fox5Vegas

 

January 7th, 2011

Cop Gives Ticket to Brain-Damaged Girl (Why? I have a theory…)

Takara Davis, after being hit by a car.

This story is just horrible, on many different levels. Yesterday Elie Mystal at Above the Law wrote about a cop that gave a jaywalking ticket. (Comatose Little Girl Gets Ticket for Jaywalking.)

The problem? The person he was giving it to was 13-year-old Takara Davis, who was in surgery with her brain bleeding after being hit by a car. As Mystal summarizes the story that originally appeared on Channel 8 in Las Vegas, he wrote:

Allegedly, Takara Davis was jaywalking when she got hit. So a police officer showed up at the hospital and gave the ticket to her mother, Kellie Obong. Why did they hand the ticket to the mother? Because Takara was busy being rushed to the operating room as the doctors tried to stop the bleeding in her head…

If you are anything like me, then reading about such a thing and the complete lack of empathy by the cop would make your head explode. And Mystal has some choice words:

But a jaywalking citation while the kid is lying there bleeding in her brain? Are you serious? What kind of self-absorbed jerk of a police officer walks to the hospital to do that job?

I almost felt sorry for the pathetic Las Vegas spokesman who was forced to lie about the incident as the girl moved from surgery to medically-induced coma:

A spokesperson for the Metropolitan Police Department issued a statement about how the citation was issued, saying, “Our officers conduct themselves in a professional and compassionate way. We wouldn’t do anything deliberately insensitive.”

It’s a lie because obviously it was deliberately insensitive. Why would the cop do it and why would a spokesman actually defend such inhuman conduct?

I have a theory. Since no human being in his right mind would ever conduct himself this way (well, almost none), I think someone put him  up to it. Like the driver of the car that hit the kid. I would bet that the driver was a cop. Or friend/relative of the cop. Or local politician. Someone with the ability to influence how the cop does his job. Because I bet there was a driver thinking about liability and being sued, as the child’s life ebbed to the edge of her world. Someone thought giving the kid a ticket would be a good idea to use in a potential civil lawsuit later, and “asked” the cop to do it. I can conceive of no other explanation.

This does not excuse the cop on the scene, of course, who went ahead and did this. I don’t care if it was the Chief of Police that was behind the wheel of the car that hit the kid. You have to act like a human first.

And here’s the thing: This hair-brained ticket idea likely won’t even work as a means of defending against a civil suit, and might well backfire. For a ticket is merely an accusation. You get a chance to fight tickets. To plead not guilty. The fact that someone is accused of something isn’t admissible in any court that I know of.

So there will be a trial if the child doesn’t think she jaywalked. Assuming, of course, she is capable of conversation.

And even if she did jaywalk, it might not excuse the conduct of the driver. The fact that someone might be jaywalking doesn’t give license to run a jaywalker down. This point is self-evident if you think of a drag-racing drunkard. (In Nevada, comparative negligence does not bar recovery so long as the injured party is less than 51% at fault. NRS 41.141)

But there is more to this story. And that more is about the driver and what it is he asked the cop to do at the scene of the accident as the life of the girl hung in the balance. And what it is that driver most likely did, in my opinion, will likely not sit well with a jury one day if it ever comes to that.

 

November 17th, 2010

Demand for Facebook Records Rejected by NY Appellate Court

The defendant in this car accident case wanted an authorization for the plaintiff’s Facebook account. And a New York appellate court has shot down that demand, for now, in a ruling just released and published in today’s New York Law Journal.

In McCann v. Harleysville Insurance, the plaintiff had successfully obtained the entire insurance policy of a motorist involved in a collision, and now sought the “supplementary uninsured/underinsured motorist coverage” from her own insurance carrier. The insurance company decided it might get lucky by snooping around the plaintiff’s Facebook account, and therefore demanded the plaintiff provide an authorization permitting them to obtain the records.

No dice, said the appellate court, which affirmed a similar decision of the court below. The problem? The defendant had no actual basis for doing said snooping, as it “failed to establish a factual predicate with respect to the relevancy of the evidence.” This was, in the words of the court, simply a “fishing expedition.”

This issue came up just a month ago in Romano v. Steelcase, in which a lower court had ordered the authorization for the Facebook account to be given. In Romano, however, a factual predicate had been established when the court felt the testimony at deposition contrasted with a photograph seen on the plaintiff’s Facebook page. The court wrote:

it appears that Plaintiff’s public profile page on Facebook shows her smiling happily in a photograph outside the confines of her home despite her claim that she has sustained permanent injuries and is largely confined to her house and bed. In light of the fact that the public portions of Plaintiff’s social networking sites contain material that is contrary to her claims and deposition testimony, there is a reasonable likelihood that the private portions of her sites may contain further evidence such as information with regard to her activities and enjoyment of life, all of which are material and relevant to the defense of this action.

While I think the evidence shown in Romano is rather thin to be delving into the Facebook account (and perhaps an appellate court will one day agree with that assessment), it seems clear that the evidence shown in McAnn is simply non-existent.

Thus, for now, there are two New York cases on the subject, one in the lower court and one appellate, and the existing dividing line is on the need for a factual predicate to delve into the accounts.

See past coverage of the Romano case and this issue: